On May 16, 2012, EPA withdrew a direct final rule that would have increased the Cross-State Air Pollution Rule (“CSAPR”) emissions budgets for Arkansas, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, New York, Ohio, Oklahoma, South Carolina, and Texas. Revisions to Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone, 77 Fed. Reg. 28,785 (May 16, 2012). The direct final rule also would have revised the new unit set-asides for Arkansas, Louisiana, and Texas.
After CSAPR was promulgated, the EPA became aware of incorrect data assumptions affecting the emissions budgets and new unit set-asides for some states. On February 21, 2012, EPA issued a direct final rule to correct the state budgets and new unit set-asides for these states. Revisions to the Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone, 77 Fed. Reg. 10,342 (Feb. 21, 2012) (to be codified 40 C.F.R pt. 97). As a backup plan, EPA also issued a parallel proposed rule proposing the same changes as the direct final rule. Revisions to the Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone, 77 Fed. Reg. 10,350 (proposed Feb. 21, 2012) (to be codified 40 C.F.R. pt. 97). The direct final rule was originally supposed to take effect on May 21, 2012.
EPA withdrew the direct final rule due to negative public comments it received. EPA now intends to move forward with the parallel proposed rule. While EPA will address the comments received on the direct final rule when it finalizes the proposed rule, it will not institute a second comment period on the proposed rule. Because the changes made to CSPAR by the withdrawn direct final rule were also proposed by EPA in the proposed rule, the provisions of the withdrawn direct final rule will presumably become law when the proposed rule is finalized.
