United States: EPA Publishes Final "Update" To The Cross State Air Pollution Rule

EPA's update to the Cross State Air Pollution Rule is designed to address interstate transport issues under the 2008 ozone standard. The rule establishes Federal Implementation Plans (FIPs) for 22 states in the eastern half of the U.S. (see map below) and requires ozone season NOx reductions directly from fossil fuel fired Electric Generating Units (EGUs) in those states. The rule is styled as an "update" to the Cross State Air Pollution Rule because it uses the same regulatory frameworks, with some updates, as EPA's original Cross State Air Pollution Rule, which was finalized in 2011, vacated by the DC Circuit but ultimately upheld by the Supreme Court. Most of the states subject to the CSAPR Update rule were also subject to the original CSAPR rule with the exception of Kansas, which will be new to the ozone season NOx program under the CSAPR Update Rule. The rule establishes new, more stringent ozone season NOx emissions budgets for each state subject to the rule, and those budgets take effect in May 2017. While the rule was signed and posted on EPA's website on September 7, 2016, the final rule was published in the Federal Register today and a copy of the Federal Register version can be found here. EPA has also separately published the unit-specific allowance allocations for the affected EGUs under the rule. The allowance allocations were issued in final form, without public review and comment, in a NODA published in the Federal Register on September 30, 2016.

Petitions for review of EPA's final CSAPR Update Rule must be filed with the U.S. Court of Appeals for the D.C. Circuit by December 27, 2016. Petitions for administrative reconsideration should also be filed by that date.

Petitions for review of EPA's final unit-level allowance allocations, however, must be filed with the D.C. Circuit no later than November 29, 2016. Petitions for administrative reconsideration should also be filed by that date and may be warranted given the lack of opportunity for public review and comment.

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