[Federal Register Volume 88, Number 47 (Friday, March 10, 2023)]
[Rules and Regulations]
[Pages 14918-14920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04959]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2017-0355; FRL-10477-01-OAR]
RIN 2060-AV88


Delay of Submittal Date for State Plans Required Under the 
Affordable Clean Energy Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; delay of state plan submittal dates.

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SUMMARY: This action extends until April 15, 2024, the deadline for 
state plans required to be submitted under the Clean Air Act (CAA) in 
accordance with the Affordable Clean Energy (ACE) rule.

DATES: This regulation is effective March 10, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2017-0355. All documents in the docket are 
listed on the https://www.regulations.gov/ website. Although listed, 
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: For questions about this document 
contact Mr. Nicholas Swanson, Sector Policies and Programs Division 
(D243-02), Office of Air Quality Planning and Standards, U.S. 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number: (919) 541-4080; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: The EPA is taking this final action without 
providing an opportunity for public comment, based on the good cause 
exception in section 553(b)(3)(B) of the Administrative Procedure Act 
(APA). The Agency has determined that seeking public comment is 
impracticable, unnecessary, or contrary to the public interest. The 
deadline for state plan submission has already passed, which 
necessitates an extension, and it is important that the EPA grant that 
extension as soon as possible to avoid confusion and uncertainty among 
states and regulated industry as to what their obligations are.

I. Background and Extension of Deadlines

    On July 8, 2019, the EPA promulgated the Affordable Clean Energy 
(ACE) rule, under CAA section 111(d) (84 FR 32520, July 8, 2019). The 
ACE rule is an emissions guideline that directs states to develop plans 
that establish standards of performance for carbon dioxide 
(CO2) emissions from existing coal-fired electricity 
generating units. The ACE rule repealed and replaced the Clean Power 
Plan, which the EPA had promulgated in 2015 (80 FR 64662, October 23, 
2015).
    Under CAA section 111(d)(1), the standards of performance in such a 
state plan are required to achieve an amount of emission reduction that 
the EPA determines can be achieved through application by the sources 
of what the EPA determines to be the ``best system of emission 
reduction . . . adequately demonstrated'' (BSER) for reducing emissions 
of the pollutant in question from the sources in question. CAA section 
111(a)(1). The ACE rule required states to submit plans to the EPA that 
establish standards of performance within three years of the date that 
the rule was published, that is, by July 8, 2022 (40 CFR 60.5745a).
    Numerous state and municipal governments, power utilities, 
renewable energy trade associations, public health and environmental 
advocacy groups, and other parties filed petitions to review the ACE 
rule before the United States Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit).
    On January 19, 2021, following briefing and oral argument, the D.C. 
Circuit issued a decision vacating the ACE rule. American Lung Ass'n v. 
EPA, 985 F.3d 914 (D.C. Cir. 2021). The court based the vacatur on its 
holding that the ACE rule's underlying legal interpretation, which was 
that CAA

[[Page 14919]]

section 111(a)(1) and (d)(1) limited the BSER to control measures that 
can be applied at and to the source to reduce emissions at the source, 
is incorrect. Id. at 944-51. In light of this holding, the court did 
not find it necessary to address, and did not address, other legal and 
factual issues that petitioners raised concerning the ACE rule. The 
court issued a partial mandate concerning this part of its decision on 
March 5, 2021. American Lung Ass'n v. EPA, No. 19-1140, Order, Doc. Id. 
No. 1888579 (D.C. Cir. March 5, 2021).
    On October 2021, the U.S. Supreme Court granted petitions for 
certiorari filed by several parties to the case, and, on June 30, 2022, 
issued a decision reversing the D.C. Circuit on other grounds. West 
Virginia v. EPA, 142 S.Ct. 2587 (2022). Specifically, the Court 
reversed the D.C. Circuit's vacatur of the ACE rule's repeal of the 
Clean Power Plan, holding that the Clean Power Plan was invalid under 
the major questions doctrine. Id. at 2615-16.
    On October 27, 2022, the D.C. Circuit responded to the Supreme 
Court decision by issuing an order that, in relevant part, withdrew the 
above-noted mandate, thereby reinstating the ACE rule. Because the EPA 
had informed the court that it is presently undertaking a rulemaking 
process to replace the ACE rule with a new rule governing greenhouse 
gas emissions from existing fossil-fuel-fired power plants, the court 
placed the case in abeyance pending completion of that rulemaking, 
rather than proceed to consider the remaining factual and legal issues 
raised by petitioners with respect to the ACE rule.
    Thus, the ACE rule was vacated for the last 536 days of the three-
year period for state plan submittal, beginning on January 19, 2021, 
and extending through July 8, 2022. The rule remained vacated through 
October 26, 2022, and then was reinstated on October 27, 2022. Because 
the ACE rule has been reinstated, states are once again under an 
obligation to submit the state plans required under the rule. However, 
because the rule's July 8, 2022, deadline has passed, and because 
states had no reason to continue to work on their plans during the 
period when the ACE rule was vacated, it is necessary to extend the 
deadline for state plan submittal.
    Accordingly, in this action, the EPA is extending the date of state 
plan submittal by 536 days from the October 27, 2022, reinstatement of 
the ACE rule. Thus, the ACE rule state plans are now due on April 15, 
2024. As just noted, this 536-day period is the length of time that the 
ACE rule was vacated from the January 19, 2021, D.C. Circuit decision 
in American Lung Ass'n v. EPA to the rule's July 8, 2022, state plan 
submittal due date.
    The EPA is taking this final action without providing an 
opportunity for public comment, based on the good cause exception in 
section 553(b)(3)(B) of the Administrative Procedure Act (APA). The 
Agency has determined that seeking public comment is impracticable, 
unnecessary, or contrary to the public interest. The deadline for state 
plan submission has already passed, which necessitates an extension, 
and it is important that the EPA grant that extension as soon as 
possible to avoid confusion and uncertainty among states and regulated 
industry as to what their obligations are. In addition, granting the 
extension as soon as possible is consistent with the public's interest 
in timely implementation of public health and environmental 
protections. See generally Wisconsin v. EPA, 933 F.3d 303, 312-20 (D.C. 
Cir. 2019) (invalidating EPA rule for granting upwind states a period 
of time that exceeded statutory limitations to reduce air pollutants 
that contribute significantly to air quality problems in downwind 
states). Although the ACE rule would achieve little emission reduction 
(85 FR 32561 & table 3) the extended deadline provides certainty to the 
public as to the timeline for submittal and implementation of state 
plans to achieve those reductions and preserves the original, three-
year period for submittal as of the date of reinstatement of the rule.
    Moreover, an extension equal to the number of days from when the 
ACE rule was vacated to the rule's submittal date is logical and is 
consistent with recent actions in which the D.C. Circuit granted a 
compliance date extension for a rule that had been stayed or vacated 
for a period of time. Michigan v. EPA, No. 98-1497, Order, Doc. Id. No. 
540209 (D.C. Cir. Aug. 30, 2000) (extending the date for sources to 
implement state implementation plan (SIP) revisions required under 
EPA's NOX SIP call rule by the number of days the D.C. 
Circuit had stayed the rule, so that sources will have the same number 
of days for developing the SIP revisions as provided in the original 
rule); ``Rulemaking To Amend Dates in Federal Implementation Plans 
Addressing Interstate Transport of Ozone and Fine Particulate Matter: 
Interim final rule with request for comment,'' 79 FR 71663 (December 3, 
2014) (amending the Code of Federal Regulations to correctly reflect 
the deadlines for sources to comply with the Cross-State Air Pollution 
Rule, which deadlines were revised by the D.C. Circuit when it lifted 
the previous stay of the rule and, accordingly, delayed the compliance 
deadlines by three years).
    For the same reasons, the EPA is also making today's action 
effective immediately upon publication in the Federal Register. Section 
553(d) of the APA provides that rules generally may not take effect 
until 30 days after they are published in the Federal Register. The 
purpose of this APA provision is to ``give affected parties a 
reasonable time to adjust their behavior before the final rule takes 
effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 
1104 (8th Cir. 1977) (quoting legislative history). However, when an 
agency grants or recognizes an exemption or relieves a restriction, 
affected parties do not need a reasonable time to adjust because the 
effect is not adverse. Thus, APA section 553(d) allows an effective 
date less than 30 days after publication for any rule that ``grants or 
recognizes an exemption or relieves a restriction'' (see 5 U.S.C. 
553(d)(1)). An accelerated effective date may also be appropriate for 
``good cause'' pursuant to APA section 553(d)(3) where an agency can 
``balance the necessity for immediate implementation against principles 
of fundamental fairness which require that all affected persons be 
afforded a reasonable amount of time to prepare for the effective date 
of its ruling.'' Gavrilovic, 551 F.2d at 1105. The EPA has determined 
that the state plan submittal date extension is effective upon 
publication because it relieves a restriction, thereby providing 
obligated parties with additional time to comply with the ACE rule's 
requirements. There is additionally good cause for immediate 
implementation of these requirements to avoid confusion and uncertainty 
among states and regulated industry regarding the timing of their 
compliance obligations.
    It should be noted that the EPA has initiated a rulemaking process 
to repeal the ACE rule and replace it with another emissions guideline 
under CAA section 111(d) that would direct states to develop plans that 
establish standards of performance for CO2 emissions from 
existing coal-fired electricity generating units. The EPA expects to 
propose this repeal and replacement rulemaking in the spring of 2023. 
If finalized, states would no longer be required to submit state plans 
to meet the requirements of ACE rule, and instead would be required to 
submit state plans to meet the requirements of the replacement 
emissions guideline, on the schedule established by that guideline.

[[Page 14920]]

II. Statutory and Executive Order Reviews

    Additional information about these 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 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA. In this action, the EPA is extending the date of state plan 
submittal by the time that was lost due to the ACE rule being vacated. 
Any burden for information collection requests is consistent with the 
original ACE rule.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute 
a ``rule for which the agency publishes a general notice of proposed 
rulemaking pursuant to section 553(b) of this title, or any other law. 
. . .'' 5 U.S.C. 601(2). The EPA is not publishing a notice of proposed 
rulemaking for this rule because it is invoking the APA ``good cause'' 
exemption under 5 U.S.C. 553(b).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. In this action, the EPA is extending the date of 
state plan submittal by the time that was lost due to the ACE rule 
being vacated. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR 
Part 51

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs 
federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations (people of color) and low-income 
populations.
    The EPA believes that this type of action does not concern human 
health or environmental conditions and therefore cannot be evaluated 
with respect to potentially disproportionate and adverse effects on 
people of color, low-income populations and/or Indigenous peoples. In 
this action, the EPA is extending the date of state plan submittal by 
the time that was lost due to the ACE rule being vacated.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

III. Statutory Authority

    The statutory authority for this action is provided by sections 
111, 301, and 302 of the CAA as amended (42 U.S.C. 7411, 7601, 7602). 
This action is also subject to section 553(b)(3)(B) of the APA (5 
U.S.C. 553(b)(3)(B).

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Reporting and recordkeeping requirements, 
Greenhouse gases.

Michael Regan,
Administrator.

    For the reasons set forth in the preamble, 40 CFR chapter I is 
amended as follows:

PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES

0
1. The authority citation for part 60 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart UUUUa--Emission Guidelines for Greenhouse Gas Emissions 
From Existing Electric Utility Generating Units

0
2. Revise Sec.  60.5745a to read as follows:


Sec.  60.5745a  What are the timing requirements for submitting my 
plan?

    You must submit a plan with the information required under Sec.  
60.5740a by April 15, 2024.

[FR Doc. 2023-04959 Filed 3-9-23; 8:45 am]
BILLING CODE 6560-50-P


