United States:
EPA Proposes “Good Neighbor” Plan Addressing Regional Ozone Transport For The 2015 Ozone National Ambient Air Quality Standard
11 April 2022
Sidley Austin LLP
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On April 6, 2022, the U.S. Environmental Protection Agency (EPA)
is scheduled to publish its proposed Federal Implementation Plan
Addressing Ozone Transport for the 2015 Ozone National Ambient Air
Quality Standards (NAAQS), otherwise known as the latest iteration
of EPA’s Cross-State Air Pollution Rule or “Good
Neighbor” Plan. The proposal would subject 26 upwind states to
the “good neighbor” or “interstate transport”
provision of the Clean Air Act because EPA is proposing to find
that nitrogen oxide (NOx) emissions, which are a precursor to ozone
formation, from the upwind states significantly contribute to
downwind states’ attaining and maintaining the 2015 ozone
NAAQS.
The good neighbor provision directs states to restrict emissions
that will “contribute significantly” to nonattainment or
interfere with maintenance in any other state with respect to any
primary or secondary NAAQS in a state implementation plan (SIP). If
an upwind state fails to submit a SIP that complies with the good
neighbor requirement, or if EPA disapproves a SIP, then EPA may
issue a federal implementation plan to protect downwind states.
This requirement involves a long history of EPA rules that have
been the subject of considerable litigation.
EPA’s current proposal has two major elements, which address
two categories of emissions sources: (1) electric generating units
(EGUs) and (2) nonelectric generating units (non-EGUs). First,
beginning in 2023, 25 states would be subject to revised emissions
budgets for fossil-fuel-fired power plants in the NOx Ozone Season
Group 3 Trading Program. The EGUs would be subject to proposed
requirements to operate existing NOx emission controls and
retrofits of new controls by the 2026 ozone season. Daily emissions
rate limits would serve as a backstop control measure.
Second, for non-EGUs, beginning in 2026, 23 states would be
subject to new NOx emission standards for certain emissions units
in select industrial facilities, including:
- reciprocating internal combustion engines in pipeline
transportation of natural gas - kilns in concrete and cement product manufacturing
- boilers and furnaces in iron and steel mills and ferroalloy
manufacturing - furnaces in glass and glass product manufacturing
- high-emitting equipment and large boilers in basic chemical
manufacturing, petroleum and coal products manufacturing, and pulp,
paper, and paperboard mills
EPA proposed to select these emissions controls, in part, based
on an estimated cost-effectiveness threshold for non-EGU sources at
$7,500 per ton of emissions reduction.
Publication in the Federal Register as
scheduled on April 6, 2022, will trigger a 60-day period for public
comments to EPA on the proposal. EPA will also hold a virtual
public hearing on April 21, 2022.
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