The US Environmental Protection Agency (EPA) has clarified near-term compliance obligations for states impacted by court orders that are stalling the agency's ambitious changes to its power plant NOx trading program.
Power plants in six states will be subject to less stringent ozone season emissions budgets that predate the agency's recent updates to the Cross-State Air Pollution (CSAPR) program, according to a prepublication version of an interim rule finalized by EPA last week. The regulation will take effect on 4 August, the same day that more stringent emissions caps should come into force in states not affected by recent judicial stays.
Arkansas, Mississippi, Missouri, and Texas — which EPA had planned to move into the more stringent Group 3 ozone season market — will remain members of Group 2 for the time being, along with Iowa, Kansas, and Tennessee. Kentucky and Louisiana, which were already part of Group 3, will move into what the agency is calling an "expanded" Group 2 market that will effectively function as its own program since allowances used for compliance in those two states will be "non-interchangeable" with other Group 2 allowances.
This regulatory action is only "on an interim basis," the agency says, with various court proceedings unresolved. Federal circuit courts have halted a precursor step EPA took of rejecting those six states' plans for addressing the interstate transport of ozone-forming NOx emissions, which has prevented the agency from enforcing its federal "good neighbor" plan there.
Other courts could make similar determinations in states like Alabama and Oklahoma, while Utah lawmakers have asked the US DC Circuit Court of Appeals to review the legality of EPA's federal plan nationwide.
Delays in publishing a final federal plan have already led to more generous emissions caps across Group 3 states than initially anticipated. And in the six states that are affected by judicial stay orders, the more stringent ozone season emissions budgets EPA planned might not take force at all.
Those six states were supposed to face a collective Group 3 cap of around 90,800 short tons (st) NOx this ozone season, which lasts from 1 May to 30 September, but will only confront a Group 2 cap of 112,500st if plans remain the same. Those caps would stay flat in future years unlike in the increasingly ambitious Group 3 market.
While EPA says it is requesting comment on the action, the agency is bypassing the more robust typical procedure for developing regulations, which it says is "impracticable and unnecessary" in this case.
