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

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Parts 52, 75, 78, and 97</CFR> <DEPDOC>[EPA-HQ-OAR-2021-0668; FRL-8670.5-02-OAR]</DEPDOC> <RIN>RIN 2060-AW47</RIN> <SUBJECT>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</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Notice; supplemental response to comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> December 10, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">https://www.regulations.gov</E> website. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> 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 <E T="03">https://www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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: <E T="03">sofka.gwyndolyn@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Throughout this document “we,” “us,” and “our” refer to the EPA. <HD SOURCE="HD1">I. General Information</HD> 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,” <E T="03">EME Homer City,</E> 572 U.S. 489, 514 (2014), by holding any linked state's largest industrial NO <E T="52">X</E> -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 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. <E T="03">See Ohio</E> v. <E T="03">EPA,</E> 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 <E T="03">Ohio</E> 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). <E T="03">See</E> 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. <E T="03">See Dep't of Homeland Sec.</E> v. <E T="03">Regents of the Univ. of Cal.,</E> 591 U.S. 1, 20-21 (2020) (quoting <E T="03">Alpharma, Inc.</E> v. <E T="03">Leavitt,</E> 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 <E T="03">Ohio,</E> 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.” <E T="03">State of Utah et al.</E> v. <E T="03">EPA,</E> 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 <E T="03">et seq.</E> ). 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, <E T="03">see</E> section II.C. of the preamble for the Good Neighbor Plan, 88 FR 36667-68. <HD SOURCE="HD1">II. Background</HD> <HD SOURCE="HD2">A. Procedural History</HD> 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 (NO <E T="52">X</E> ), an ozone precursor. <SU>1</SU> <FTREF/> Prior to promulgating the Good Neighbor Plan, the EPA had disapproved state implementation plans for 21 of those states an ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 196k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━