U.S. EPA’s “Good Neighbor Plan” Finds Its Way to the Federal Register. Let the Litigation Begin.

On June 5, 2023, U.S. EPA published the “Good Neighbor Plan” (GNP), also known as the Ozone Transport Federal Implementation Plan (FIP), in the Federal Register at 88 FR 36654.  U.S. EPA originally signed the GNP on March 15, 2023.  With the rule’s publication in the Federal Register, the GNP becomes effective on August 4, 2023, except in states (i.e., Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Texas) that were awarded a stay of U.S. EPA’s disapproval of their State Implementation Plans (SIPs) pending judicial review.

On February 13, 2023 (88 FR 9336), U.S. EPA fully or partially disapproved SIPs for 21 states that were submitted to fulfill their “good neighbor” obligations under the Clean Air Act (CAA) to address the 2015 National Ambient Air Quality Standards (NAAQS) for ozone.  U.S. EPA’s disapproval of these states’ SIPs resulted in the Federal GNP.  Several states, challenged U.S. EPA’s disapproval of their SIPs. Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Texas were awarded an administrative stay of their SIP disapprovals pending judicial review.  This ultimately means that the FIP is not effective in these states, pending legal review.  On June 1, 2023, U.S. EPA issued the “Goffman Memo” in response to the legal actions, noting that U.S. EPA will take action to ensure that the requirements of the GNP will not take effect in Arkansas, Kentucky, Louisiana, Missouri, and Texas while U.S. EPA’s disapprovals of the SIPs are being reviewed.  Note that Mississippi was not directly included in the Goffman Memo; however, it is expected that the same action by U.S. EPA would be applicable for Mississippi.

On June 8, 2023 a group of 17 Senators introduced a joint resolution of disapproval of the GNP under the Congressional Review Act (CRA) (S.J.Res.31).  This action has been referred to the Committee on Environment and Public Works.  In addition, several cement companies have requested that the GNP be vacated and remanded “because it is arbitrary, capricious, and not otherwise in accordance with law”.

This may be just the start of litigation on the GNP and associated SIP disapprovals, but it does not mean you can bury your head in the sand and wait for the GNP to disappear.  There is a lot to do, in a short amount of time.  For electric generating units (EGUs), now is the time to review allocations calculated by U.S. EPA for your facility and look at predictive measures to determine the impacts moving forward, as cost of compliance increases.  For non-electric generating units (Non-EGUs), there is a whole host of actions that need to be taken, such as determining applicability to your units, data collection, control device evaluation, permitting, monitoring challenges, etc. At a minimum, you should be evaluating compliance options and determining the time it will take to implement solutions while you wait to see if the rule will stand in your state for your facility. If the rule ultimately stands, it may be difficult to justify a compliance extension if you were waiting for the legal system instead of taking any action.

ALL4 has been actively looking at the GNP for a wide range of EGUs and Non-EGU sectors and we are actively working to get implementation questions answered. Need more information? you can review ALL4’s previous GNP blogs and webinars by looking here.  If you haven’t already started looking at what you need to do, the time to start is now.  If you have questions or need help planning for compliance with the GNP, please reach out to Eric Swisher, Amy Marshall or Roy Rakiewicz.