81 FR 53284 - Approval and Promulgation of Air Quality Implementation Plans; Texas; Interstate Transport of Air Pollution for the 2008 Ozone National Ambient Air Quality Standards
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 156 (August 12, 2016)
Federal Register Volume 81, Issue 156 (August 12, 2016)
| Page Range | 53284-53290 | |
| FR Document | 2016-19151 |
[Federal Register Volume 81, Number 156 (Friday, August 12, 2016)] [Rules and Regulations] [Pages 53284-53290] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-19151] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2012-0985; FRL-9950-50-Region 6] Approval and Promulgation of Air Quality Implementation Plans; Texas; Interstate Transport of Air Pollution for the 2008 Ozone National Ambient Air Quality Standards AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is disapproving the portion of a Texas State Implementation Plan (SIP) submittal pertaining to interstate transport of air pollution which will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone National Ambient Air Quality Standard (NAAQS) in other states. Disapproval establishes a 2-year deadline for the EPA to promulgate a Federal Implementation Plan (FIP) for Texas to address the Clean Air Act (CAA) interstate transport requirements pertaining to significant contribution to nonattainment and interference with maintenance of the 2008 ozone NAAQS in other states, unless the EPA approves a SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for Texas. DATES: This rule is effective on September 12, 2016. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2012-0985. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information 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. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202- 2733. FOR FURTHER INFORMATION CONTACT: Carl Young, 214-665-6645, young.carl@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' and ``our'' means the EPA. I. Background This rulemaking addresses an infrastructure SIP submittal from the state of Texas addressing, among other things, the requirements of CAA section 110(a)(2)(D)(i)(I), also known as the good neighbor provision (or interstate transport prongs 1 and 2), with respect to the 2008 ozone NAAQS. The background for this action is discussed in detail in our April 11, 2016 proposal (81 FR 21290). In that action we proposed to disapprove the portion of the December 13, 2012 Texas SIP submittal pertaining to CAA section 110(a)(2)(D)(i)(I) which requires that the State prohibit any emissions activity within the state from emitting air pollutants which will significantly contribute to nonattainment (prong 1) or interfere with maintenance (prong 2) of the 2008 ozone NAAQS in other states.\1\ In proposing to disapprove the SIP submittal as to prongs 1 and 2 of the good neighbor provision, we noted several deficiencies in Texas' submittal: (1) Texas limited its discussion of data only to areas designated nonattainment in states that are geographically closest to Texas (Arizona, Arkansas, Colorado, Illinois, Indiana, Louisiana, Mississippi, Missouri, Tennessee, and Wisconsin); and (2) Texas did not give the ``interfere with maintenance'' clause of CAA section 110(a)(2)(D)(i)(I) independent significance because its analysis did not attempt to evaluate the potential impact of Texas emissions on areas that are currently measuring clean data, but that may have issues maintaining that air quality.\2\ Finally, the EPA explained that Texas and other states could no longer rely on the implementation of the Clean Air Interstate Rule (CAIR) to satisfy emission reduction obligations with respect to the 2008 ozone NAAQS (81 FR 21290, 21294-5). The EPA is finalizing its proposed disapproval in this action. --------------------------------------------------------------------------- \1\ In a separate action, we disapproved the portion of the SIP submittal pertaining to the CAA section 110(a)(2)(D)(i)(II) requirement to address the interstate transport of air pollution which will interfere with other states' programs for visibility protection (81 FR 296, January 5, 2016). We proposed to approve the other portions of the infrastructure SIP submittal on February 8, 2016 (81 FR 6483). \2\ In addition, the EPA cited at proposal certain technical information the agency had released in order to facilitate efforts to address interstate transport requirements for the 2008 ozone NAAQS, and that this information was used to support the proposed Cross-State Air Pollution Rule Update for the 2008 ozone NAAQS (CSAPR Update) (81 FR 21299, 21292). We noted that such information contradicts Texas' conclusions that its SIP contained adequate provisions to meet the CAA interstate transport requirements with respect to the 2008 ozone NAAQS. See Notice of Data Availability (NODA), 80 FR 46271, (August 4, 2015) and the proposed CSAPR Update, 80 FR 75706 (December 3, 2015). We also noted at proposal that the EPA technical information in the NODA and the proposed CSAPR Update accounted for the emission reductions resulting from controls listed in the SIP, implemented within the state, and nonetheless showed that Texas will contribute to downwind air quality problems. The CSAPR Update, however, is outside the scope of this action, and is irrelevant to the question of whether the Texas SIP should be disapproved. --------------------------------------------------------------------------- We received three comments during the comment period on our proposed SIP disapproval. The comments were submitted by the State of Texas (Texas Commission on Environmental Quality ``TCEQ''), Luminant (a Texas electricity producer) and a member of the public. A synopsis of the comments and our responses are provided below. II. Response to Comments Comment: Comments were received from a member of the public that was supportive of the EPA's basis for its proposed action, but added that (1) the public can better understand how we are using the most current information if we clarify and explain how the projections and modeling discussed in the evaluation for our proposal are informed by recent ozone monitoring data, and (2) the commenter stated that the EPA took too long to propose action on the Texas SIP revision, noting that Texas would benefit from earlier review of its analysis by the EPA. Response: We agree with the commenter's conclusion that Texas's SIP submittal was inadequate to address the statutory interstate transport requirements with respect to the 2008 ozone NAAQS. With respect to the commenter's first concern, the projections and modeling released c in the August 4, 2015 NODA and the proposed CSAPR Update, which we also o recited in the EPA's proposed action on the Texas SIP submittal. In our CSAPR Update proposal, we explained how the CSAPR Update Rule proposed to use recent ozone monitoring data to inform our evaluation of interstate transport (80 FR 75706, 75724). We proposed to identify as nonattainment receptors those monitoring sites that (1) measured ozone concentrations that exceed the NAAQS based on monitoring data from years 2012-2014, and (2) are projected to exceed the NAAQS in 2017 [[Page 53285]] based on an average design value.\3\ We proposed to identify maintenance receptors as those monitoring sites that have measured ozone concentrations that meet the NAAQS (clean data) based on monitoring data from years 2012-2014 and are projected to exceed the NAAQS in 2017 based on a maximum or average design value. We proposed this method of projecting from recent monitoring data to 2017 to identify maintenance receptors, since the monitoring sites of the proposed maintenance receptors currently meeting the NAAQS could be subject to conditions that may allow violations to reoccur and therefore may have future maintenance concerns. For more information about how the EPA identified 2017 nonattainment and maintenance receptors, please see pages 75723-75726 in the proposed CSAPR Update. (80 FR 75706). Today's rulemaking does not address which monitoring sites are identified as nonattainment and maintenance receptors with respect to interstate transport for the 2008 ozone NAAQS. Such determination, including more recent ozone monitoring data which will inform that analysis, will be addressed in the EPA's final CSAPR Update and are outside the scope of this final action. The EPA's disapproval is based on the inadequacies in the analysis provided in Texas's SIP submittal, as described in this document and in EPA's proposed action on that SIP. --------------------------------------------------------------------------- \3\ The design value for the 2008 ozone NAAQS is the 3-year average of the annual 4th highest daily maximum 8-hour ozone concentration at a monitoring site. --------------------------------------------------------------------------- With respect to the timeliness of the EPA's action on the Texas SIP submittal, CAA section 110(k)(2) requires the EPA to act on SIPs within one year after a submittal is determined to be complete. We determined that the Texas infrastructure SIP submittal, which includes transport, was complete on December 20, 2012. While the EPA generally agrees that prompt action on state SIP submittals can be beneficial to the states' planning efforts, in this case, the D.C. Circuit's decision in North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008) provided the holding that states must give the ``interfere with maintenance'' clause of CAA section 110(a)(2)(D)(i)(I) independent significance, which Texas failed to do. Comment: The TCEQ stated that it does not support the EPA's proposed disapproval of the state's interstate transport portion of its SIP submittal because the TCEQ's interstate transport analysis adequately addresses the requirements of CAA section 110(a)(2)(D)(i)(I). Specifically, TCEQ stated that the EPA failed to issue guidance in a timely manner for states to use in developing infrastructure and transport SIP revisions for the 2008 ozone NAAQS. TCEQ therefore contends that it is inappropriate for the EPA to conclude that the state's analysis of ozone contributions to other areas is incomplete when the EPA did not provide timely guidance stating what would constitute a complete analysis. TCEQ explained that its SIP revision was submitted on December 13, 2012 in order to meet the January 4, 2013 deadline by which the EPA was court-ordered to issue findings of failure to submit infrastructure SIPs for the 2008 ozone NAAQS. TCEQ notes that the EPA did not issue infrastructure SIP guidance until September 13, 2013, eight months following the January 2013 deadline, which did not contain any information on what would constitute an adequate interstate transport analysis. TCEQ further notes that the EPA did not provide information to states regarding interstate transport for the 2008 ozone NAAQS until 2015, through information provided in a January 22, 2015 memo, an August 4, 2015 NODA, and the December 3, 2015 CSAPR Update proposal, which was well after the state's SIP submittal. Therefore, as a result of the EPA's lack of timely transport guidance for the 2008 ozone standard and subsequent NODA regarding 2017 nonattainment and maintenance receptor linkages and contributions, TCEQ contends that it was forced to expend effort and resources to develop its SIP revision without knowing how the EPA would evaluate Texas' interstate transport obligation. Further, the EPA has routinely failed to issue timely guidance for SIP revisions and to even meet statutory SIP review deadlines in the CAA. As a result, the EPA has disrupted the SIP development process nationwide, undermining the states' ability to submit sufficient SIP revisions. Response: We disagree that Texas' December 13, 2012 SIP submittal containing the state's transport analysis adequately addressed the requirements of CAA section 110(a)(2)(D)(i)(I). Rather, the state's analysis was deficient to address the statutory requirements, as detailed in the proposal and in more detail in this document. CAA section 110(a)(2)(D)(i)(I) requires that for a new or revised standard, each SIP must contain adequate provisions to prohibit any emissions activity within the state from emitting air pollutants that will ``contribute significantly to nonattainment'' or ``interfere with maintenance'' of the applicable air quality standard in any other state--here being the 2008 ozone standard. (81 FR 21290-1, April 11, 2016). Texas submitted an analysis of monitoring data, wind patterns, emissions data and emissions controls and concluded that based on monitoring data, due to decreases in ozone design values and existing control measures, emissions from sources from within the state do not contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states. We find that Texas' analysis was not adequate because Texas limited its discussion of data only to areas designated nonattainment in states that are geographically closest to the state and we find this approach incomplete, (as detailed in our proposal), since the state did not consider other areas that were not formally designated as nonattainment. (81 FR 21292). Moreover, the state did not give the ``interfere with maintenance'' clause of CAA section 110(a)(2)(D)(i)(I) independent significance, consistent with the D.C. Circuit's decision in North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008), because its analysis did not attempt to evaluate the potential impact of Texas emissions on areas that are currently measuring clean data, but that may have issues maintaining that air quality. (81 FR 21292). As we noted at proposal the EPA's most recent technical information demonstrates that emissions from Texas do impact air quality in other states relative to the 2008 ozone NAAQS. (81 FR 21292-3). With regard to the timelines of EPA guidance, in EPA v. EME Homer City Generation, L.P., the Supreme Court clearly held that ``nothing in the statute places the EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations.'' 134 S. Ct. 1584, 1601 (2014).\4\ While we have taken a different approach in some prior rulemakings by providing states with an opportunity to submit a SIP after we quantified the states' budgets (e.g., the [[Page 53286]] NOX SIP Call and CAIR \5\), the CAA does not require such an approach. Regarding the commenter's contention that the EPA's alleged inability to review SIP submittals within the CAA timelines undermines the ability of states to submit sufficient SIPs, the State's ability to submit a sufficient SIP that meets the applicable requirements is unrelated to the EPA's timeline for review. --------------------------------------------------------------------------- \4\ ``Nothing in the Act differentiates the Good Neighbor Provision from the several other matters a State must address in its SIP. Rather, the statute speaks without reservation: Once a NAAQS has been issued, a State `shall' propose a SIP within three years, Sec. 7410(a)(1), and that SIP `shall' include, among other components, provisions adequate to satisfy the Good Neighbor Provision, Sec. 7410(a)(2).'' EPA v. EME Homer City Generation, L.P., 134 S. Ct. at 1600. \5\ For information on the NOX SIP call see 63 FR 57356 (October 27, 1998). For information on CAIR (the Clean Air Interstate Rule) see 70 FR 25162 (May 12, 2005). --------------------------------------------------------------------------- Comment: TCEQ and Luminant both state that the EPA's public notice on the proposed disapproval is not meaningful because they contend that the outcome was predetermined when the EPA proposed a FIP for Texas in the proposed CSAPR Update. They stated that at the time of the proposed FIP to update CSAPR, the EPA had taken no action on the previously submitted SIP submittal from Texas addressing interstate transport with respect to the 2008 ozone NAAQS. The commenters contend that the EPA should have evaluated the SIP submittal prior to proposing a CSAPR Update that included Texas. The commenters also stated that we had not satisfied the prerequisites of CAA section 110(c)(1) when we issued the proposed FIP for Texas in the proposed CSAPR Update. The commenters therefore contend that the proposed SIP disapproval is only a post hoc rationalization for the proposed CSAPR Update, and our approach is unlawful and impermissibly treads on cooperative federalism required under the CAA. Lastly, the commenters claim that had we reviewed the SIP revision before proposing the CSAPR Update for Texas, the state would have had the opportunity contemplated by the CAA to correct any problems with its SIP in a timely fashion and avoid the imposition of the FIP. Response: We disagree with the commenters that the proposed disapproval was predetermined when the EPA issued the proposed CSAPR Update that included a FIP for Texas. Our proposal to disapprove the Texas SIP provided proper notice and an opportunity for public comment, as legally required, and provided distinct bases for the proposed disapproval. Importantly, the proposed disapproval of the Texas SIP allowed an opportunity for submittal of any information that could have changed our proposed views concerning (1) the adequacy of the SIP submittal, and (2) the effect of Texas emissions on ozone levels in downwind states as demonstrated in the modeling and contribution information the EPA relied upon for its proposed disapproval. The EPA has not received any information demonstrating the identified inadequacies of the SIP submittal and the data showing the effect of Texas emissions in downwind states are inaccurate. Whether the EPA appropriately proposed the CSAPR Update is outside the scope of this action, and is irrelevant to the question of whether the Texas SIP should be disapproved. The bases for the disapproval are further explained in both the proposal and this final action, and do not rely upon the proposed CSAPR Update. As described in the proposal and earlier in this document, whether or not the EPA had proposed the CSAPR Update, Texas' SIP submittal failed to include an analysis that appropriately evaluated the impact of state emissions on areas in other states, regardless of current nonattainment designations and considering the ability of areas currently measuring clean data to maintain that standard. These deficiencies are completely independent of any analysis conducted to support the CSAPR Update proposal. Moreover, while the CSAPR Update proposal also relied upon the same modeling and contribution information to identify which states might be subject to a FIP in the final rulemaking, in the absence of an approvable SIP, the proposed disapproval of the Texas SIP did not rely upon the proposed findings in the CSAPR Update but rather cited, in addition to other deficiencies identified with the Texas SIP, technical data that was relevant to and informative for both proposals. Our actions are consistent with CAA section 110(c) prerequisites in promulgating a FIP. In our December 3, 2015 Federal Register notice, we proposed to include Texas in the CSAPR Update (80 FR 75706). In that proposal we recognized that we could not promulgate a FIP for any state, including Texas, in the final CSAPR Update unless we found that the state had failed to make an approvable SIP submittal (80 FR 75719- 20). A proposed rulemaking does not constitute a promulgation of a rule by the EPA, and therefore the proposed CSAPR Update does not constitute a ``predetermined outcome'' of EPA's review of Texas' SIP submittal, as the commenters describe, nor a promulgated FIP under CAA section 110(c). Were the EPA to finalize an approval of Texas' SIP, the EPA would not finalize the proposed inclusion of Texas in any final CSAPR Update. However, for the reasons described earlier, the EPA is finalizing its disapproval of Texas' SIP. However, this final action does not promulgate a FIP nor make any final determination regarding whether and when the EPA will promulgate a FIP. The EPA will determine whether to issue a FIP in the context of the CSAPR Update in the rulemaking for that action, and thus any concerns regarding the EPA's authority to issue a FIP are appropriately raised only in the context of that rulemaking. Finally, the EPA disagrees with the commenters' claim that had we reviewed the SIP revision before proposing the CSAPR Update for Texas, the state would have had the opportunity contemplated by the CAA to correct any problems with its SIP in a timely fashion in order to avoid the imposition of the FIP. Contrary to commenters' assertions, CAA does not contemplate that a state have an opportunity to correct deficiencies with its SIP either before the EPA takes action to act on the SIP or before the EPA imposes a FIP after disapproval of a SIP. CAA section 110(c) provides that the EPA ``shall promulgate a [FIP] at any time within two years after'' the EPA either finds that a state has failed to make a required submittal or disapproves a SIP, in whole or in part. As the Supreme Court confirmed in EPA v. EME Homer City Generation. L.P., ``EPA is not obliged to wait two years or postpone its action even a single day: The Act empowers the Agency to promulgate a FIP `at any time' within the two-year limit.'' EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1600-01 (2014). The EPA notes, however, that states have the ability at any time, including before or after the imposition of a FIP, to submit an approvable SIP, which corrects any deficiency. Comment: TCEQ commented that we inappropriately stated that it should have considered possible contributions to downwind areas that are not designated nonattainment but may nonetheless measure exceedances of the NAAQS. TCEQ further stated that we fail to mention how Texas might have accomplished this theoretical exercise particularly without EPA guidance on how to develop its transport SIP and considering the EPA relies on nationwide modeling to determine potential exceedances in areas that are attaining the NAAQS that is not made available to states prior to the statutory due dates for state transport SIPs. The TCEQ concedes that the EPA may now consider the CSAPR schema to be appropriate guidance for transport regulation, but contends that it is still not possible for states to effectively respond with timely transport SIPs. The commenter again notes that the EPA did [[Page 53287]] not explain what type of transport analysis would be considered satisfactory when the EPA issued SIP guidance in 2013. Response: Regardless of an air quality designation, any area may violate the NAAQS if upwind emissions affecting air quality are not adequately controlled. The EPA has routinely interpreted the obligation to prohibit emissions that ``significantly contribute to nonattainment'' of the NAAQS in downwind states to be independent of formal designations because exceedances can happen in any area.\6\ Nothing in the CAA limits States' obligations under the good neighbor provision to downwind areas that have been formally designated nonattainment. To the contrary, CAA section 110(a)(2)(D)(i)(I) requires States to prohibit emissions that ``will contribute significantly to nonattainment in . . . any other State.'' (emphasis added). The future tense demonstrates that Congress intended this requirement to be forward-looking and apply to areas that will be in nonattainment regardless of formal designation. An area with air quality that is projected to exceed the NAAQS would be in nonattainment, and thus not meeting public health-based standards, regardless of whether it has been formally designated as a nonattainment area. An upwind state cannot be relieved of its obligation to address interstate transport of air pollution merely because of a lack of formal designation. Thus, Texas should have considered possible contributions to downwind areas that are not designated nonattainment but may nonetheless measure exceedances of the NAAQS in considering whether Texas emissions significantly contribute to nonattainment in another state. --------------------------------------------------------------------------- \6\ See, e.g., Clean Air Interstate Rule, 70 FR 25162, 25265 (May 12, 2005) (``As to impacts, CAA section 110(a)(2)(D) refers only to prevention of `nonattainment' in other States, not to prevention of nonattainment in designated nonattainment areas or any similar formulation requiring that designations for downwind nonattainment areas must first have occurred.''); Cross-State Air Pollution Rule, 76 FR 48208, 48211 (Aug. 8, 2011) (evaluating nonattainment and maintenance concerns based on modeled projections); Brief for Respondents U.S. Environmental Protection Agency at 23-24, EME Homer City Generation, L.P. v. EPA, Case No. 11-1302 (D.C. Cir. Jan. 16, 2015), ECF No. 1532516 (defending the EPA's identification of air quality problems in CSAPR independent of area designations). Cf. Final Response to Petition from New Jersey Regarding SO2 Emissions From the Portland Generating Station, 76 FR 69052 (Nov. 7, 2011) (finding facility in violation of the prohibitions of CAA section 110(a)(2)(D)(i)(I) with respect to the 2010 SO2 NAAQS prior to issuance of designations for that standard). --------------------------------------------------------------------------- With respect to the ``interfere with maintenance'' requirement, the court in North Carolina v. EPA, (531 F.3d 896, D.C. Cir. 2008), was specifically concerned with areas not designated nonattainment when it rejected the view that ``a state can never `interfere with maintenance' unless the EPA determines that at one point it `contribute[d] significantly to nonattainment.' '' 531 F.3d at 910. The court pointed out that areas barely attaining the standard due in part to emissions from upwind sources would have ``no recourse'' pursuant to such an interpretation. Id. Accordingly, and as described in the proposal, the court explained that the regulatory authority must give ``independent significance'' to the maintenance prong of CAA section 110(a)(2)(D)(i)(I) by separately identifying such downwind areas for purposes of defining states' obligations pursuant to the good neighbor provision. Thus, Texas should have considered the potential impact of its emissions on areas that are currently measuring clean data, but may have issues maintaining that air quality. Although the TCEQ questions how it could have completed such an analysis without explicit guidance from the EPA and before the EPA had conducted air quality modeling evaluating downwind air quality and contributions, as explained earlier, states bear the primary responsibility for demonstrating that their plans contain adequate provisions to address the statutory interstate transport provisions and the EPA is not required to issue guidance. In separate interstate transport actions, the EPA has reviewed and finalized action on interstate transport SIPs in states where air quality modeling was not available or where the total weight of evidence for finalizing action on the state's SIP was not solely based on air quality modeling, according to these standards.\7\ As evidenced by these actions, consideration of monitoring data is one valid way to evaluate potential interstate transport impacts, but it does not absolve a state from evaluating its downwind impact regardless of formal area designations and considering the requirements of both prongs of the good neighbor provision. As we noted above and as found by the Supreme Court in EME Homer City Generation, L.P., the lack of guidance does not relieve either the states of the obligation to submit SIPs that address CAA section 110(a)(2)(D)(i)(I) nor the EPA of the obligation to review such SIPs consistent with the statutory requirements of the good neighbor provision. For the 2015 ozone NAAQS, we plan to provide information pertaining to interstate transport of air pollution later this year.\8\ Interstate transport SIPs for the 2015 ozone NAAQS are due October 26, 2018. We plan to continue our ongoing dialogue with states to assist in developing an appropriate transport SIP. --------------------------------------------------------------------------- \7\ See, e.g., Air Quality State Implementation Plans; Approvals and Promulgations: Utah; Interstate Transport of Pollution for the 2006 PM2.5 NAAQS May 20, 2013 (78 FR 29314); Final Rule, 78 FR 48615 (August 9, 2013); Approval and Promulgation of Implementation Plans; State of California; Interstate Transport of Pollution; Significant Contribution to Nonattainment and Interference With Maintenance Requirements, Proposed Rule, 76 FR 146516, 14616-14626 (March 17, 2011); Final Rule, 76 FR 34872 (June 15, 2011); Approval and Promulgation of State Implementation Plans; State of Colorado; Interstate Transport of Pollution for the 2006 24-Hour PM2.5 NAAQS, Proposed Rule, 80 FR 27121, 27124- 27125 (May 12, 2015); Final Rule, 80 FR 47862 (August 10, 2015). \8\ See pages 6-7 of the attachment to the October 1, 2015 EPA memorandum ``Implementing the 2015 Ozone National Ambient Air Quality Standards'' from Janet McCabe, Acting Assistant Administrator, Office of Air and Radiation to Regional Administrators, Regions 1-10, https://www.epa.gov/sites/production/files/2015-10/documents/implementation_memo.pdf. --------------------------------------------------------------------------- Comment: TCEQ and Luminant both state that in our CSAPR Update proposal the EPA did not give independent effect to both the ``contribute significantly to nonattainment'' and the ``interfere with maintenance'' requirements as nonattainment and maintenance receptors are treated exactly the same way as far as linkages to states are defined and emission budgets are set. Luminant also claims that the EPA would be in violation of the Supreme Court in EME Homer City Generation, L.P. if we impose the same ``cost-effective controls'' to address both interference with maintenance and significant contribution to nonattainment. Further, the comments state that because some states are linked to receptors in marginal nonattainment areas, the EPA is requiring emissions reductions from upwind states, including Texas, to assist states that do not have make emission reductions or institute control strategies of their own. Further, the comments claim that we have failed to identify any balance between local controls in areas with potential maintenance problems and reductions that it is requiring of states upwind that it models as contributing at least 1% of the relevant NAAQS to these areas with modeled, not monitored, issues. The commenters also disagree with the EPA's finding that the Texas SIP submittal did not give independent significance to the CAA ``interfere with [[Page 53288]] maintenance'' requirement and contend that we have misconstrued that requirement by stating that TCEQ did not evaluate areas currently measuring clean data. Luminant contends that Texas' SIP does give independent significance to the ``interfere with maintenance'' clause. TCEQ claims that the EPA has not promulgated a rule that identifies a required or recommended methodology for the EPA or states to give independent consideration to possible contributions that may interfere with maintenance in downwind areas, and contend that it is arbitrary and capricious for the EPA to propose disapproval for failure to meet a standard or requirement that did not exist at the time the statutory obligation matured. Response: As described in the proposal, the EPA proposed disapproval in part because the Texas SIP submittal did not address the potential impact of Texas emissions on maintenance areas. Reiterating our position explained in the proposal, the D.C. Circuit in North Carolina explained that the regulatory authority must give ``independent significance'' to the maintenance prong of CAA section 110(a)(2)(D)(i)(I) by evaluating the impact of upwind state emissions on downwind areas that, while currently in attainment, are at risk of future nonattainment, considering historic variability. North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008). While one commenter contends that Texas evaluated the interference with maintenance prong and concluded monitoring data do not suggest that emissions from Texas contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS for areas in any other state, nothing in Texas' SIP submittal indicates that it performed any analysis to support its conclusion as the State limited its discussion of data only to certain areas designated nonattainment and did not consider whether those or any other areas might have trouble maintaining the standard even if they measured clean data. Thus, contrary to the commenter's assertion, Texas did not give independent meaning to the interference with maintenance prong by evaluating the impact of upwind state emissions on downwind areas that, while currently in attainment, are at risk of future nonattainment, as required by the statute and as clarified by the D.C. Circuit in North Carolina. The EPA disagrees with the commenter's assertion that this standard or requirement did not exist at the time the statutory obligation to submit a transport SIP matured. At the time Texas was obligated to submit a SIP addressing interstate transport requirements for the 2008 ozone NAAQS, CAA section 110(a)(2)(D)(i)(I) clearly required states to submit a plan containing adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will interfere with maintenance by any other state with respect to a particular NAAQS. This requirement has not changed since Texas' obligation to submit a transport SIP matured, and contrary to commenter's assertion, the EPA is not obligated to identify a required or recommended methodology for giving independent consideration to possible contributions that may interfere with maintenance in downwind areas prior to proposing action on a SIP addressing such statutory requirement. Nonetheless, the State's SIP made no attempt to evaluate the maintenance prong with respect to the 2008 ozone NAAQS aside from its conclusory assertion that the requirements were satisfied. To the extent the commenter has raised concerns with respect to the EPA's interpretation and application of the CAA, including the ``interfere with maintenance'' clause, in the context of the CSAPR Update rulemaking, such comments are appropriately raised and addressed in that rulemaking. The EPA is not finalizing in this rule any determinations regarding the identification of specific downwind maintenance receptors, the magnitude of Texas' contribution to those receptors, and the quantity of any emission reductions that might be necessary. Such determinations will be made in the context of the CSAPR Update rulemaking. To the extent that Luminant refers to the EPA's approach as not compliant with the Supreme Court's EME Homer City Generation, L.P. decision, this comment relates to the CSPAR Update rulemaking and not our action today. Thus, it is outside the scope of this action and would be more appropriately addressed in that separate rulemaking. Comment: TCEQ claims that the EPA has not demonstrated that a contribution by upwind states of 1% of the NAAQS will interfere with maintenance in identified maintenance areas. Further the TCEQ contends that the EPA has not demonstrated that a 1% of the NAAQS contribution to modeled emissions in maintenance areas is appropriate for linking an upwind state to a maintenance monitor. Further, they contend that EPA has not demonstrated that the amount of reductions necessary to cure a contribution to nonattainment is also appropriate to ensure that an upwind state is not interfering with maintenance. Lastly, TCEQ states that the 1% contribution threshold is arbitrary. Response: The EPA explained in the CSPAR Update proposal its reasoning for why we believe it appropriate to use the same approach used in CSAPR to establish a 1% air screening threshold for the evaluation of interstate transport requirements for the 2008 ozone NAAQS, including the interference with maintenance requirement. 81 FR 21292-94. The commenter does not explain its allegations that the 1% threshold is arbitrary nor does the commenter explain how the EPA has not demonstrated this threshold is appropriate to show interference by upwind states with maintenance in identified maintenance areas. Nonetheless, while the EPA cited the modeling conducted for the CSAPR Update as showing Texas may significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in downwind states, we did not propose to make a specific finding of contribution or to quantify any specific emissions reduction obligation. We did not rely upon a 1% contribution threshold for this action. Rather, the evaluation of whether emissions from Texas significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS downwind, relying upon the use of a 1% contribution threshold, and if so what reductions are necessary to address that contribution, is being conducted in the context of the CSAPR Update rulemaking. Accordingly, this comment relates to the CSPAR Update rulemaking and not our action today. Thus, it is outside the scope of this action and would be more appropriately addressed in that separate rulemaking. The EPA will consider timely-submitted comments regarding the EPA's air quality modeling and various associated legal and policy decisions in finalizing that rulemaking. Comment: TCEQ stated that it supports the use of ambient air quality monitoring data as the only valid basis for making nonattainment designations and identifying nonattainment and maintenance receptors and that it does not support the use of modeling as the basis for designations or identifying either nonattainment or maintenance receptors for transport. TCEQ contends that using modeling for these actions could result in major capital expenditures for industry to fix something that may not be a real problem, and claims that to base these actions on modeling is inconsistent with [[Page 53289]] historical and present EPA policies. TCEQ also notes that the EPA does not redesignate an area to attainment when an area models attainment as part of an attainment demonstration, but rather uses monitoring data to verify attainment before redesignation. Response: While the EPA does rely on ambient air quality monitoring data to make decisions on ozone nonattainment designations and redesignations, the EPA has routinely based its determination of receptors for purposes of evaluating interstate ozone transport on air quality modeling projections.\9\ This is because, regardless of designation, any area may violate the NAAQS if upwind emissions affecting air quality are not adequately controlled, and areas currently measuring clean data may still violate the NAAQS if conditions change such that attainment with the NAAQS can no longer be maintained. Thus, the means by which the EPA makes decisions with respect to area designations is not relevant to our identification of receptors that should be evaluated for interstate transport of air pollution. In North Carolina v. EPA, the D.C. Circuit concluded that the EPA's reliance on future projections to identify such receptors was a reasonable application of the statute. North Carolina, 531 F.3d at 914. Nonetheless, while the EPA has relied upon modeling to identify downwind air quality problems, the EPA has also stated that states may consider other types of data when evaluating interstate transport in developing their SIPs. See Memorandum from William T. Harnett to Regional Air Division Directors, Regions I-X, ``Guidance on SIP Elements Required Under [CAA] Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5 ) National Ambient Air Quality Standards (NAAQS)'', September 25, 2009.\10\ Indeed, as described earlier, the EPA has regularly evaluated interstate transport SIPs in western states, where modeling has not typically been available, considering monitored data in a manner that is consistent with the standards described in this document. --------------------------------------------------------------------------- \9\ See CSAPR (76 FR 48208, August 8, 2011), CAIR (70 FR 25162, May 12, 2005) and the NOX SIP call (63 FR 57356, October 27, 1998). \10\ https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20090925_harnett_section_110(a)_sip_2006_24-hr_pm2.5_naaqs.pdf. --------------------------------------------------------------------------- Comment: TCEQ stated that we failed to give comments on the adequacy of the State's interstate transport analysis during the State public comment period and that the lack of comments led the State to believe that the submitted analysis was adequate to show how Texas contributes to other states' ozone concentrations. Response: The EPA's authority and obligation under the Act is to review a SIP submittal and determine whether it meets the applicable requirements of the Act and regulations, regardless of whether we commented on a State's proposed SIP during its State rulemaking process. There is no requirement in the Act that the EPA must review, evaluate, and comment on a State's proposed SIP revision during the state rulemaking process, and no reasonable or legal basis for states to assume that the EPA's choosing to not provide comment on their analysis during the state public comment period constitutes the Agency's endorsement of such analysis. Comment: Luminant stated that the EPA needs to revise the CSAPR ozone season NOX budgets in accordance with the D.C. Circuit's remand in EME Homer City Generation, L.P. before the EPA can evaluate Texas' SIP submittal. See EME Homer City Generation, L.P. v EPA, 795 F.3d 118 (D.C. Cir. 2015). Luminant stated that, by failing to issue new budgets for the 1997 ozone NAAQS, we are in violation of the D.C. Circuit's specific remand instructions. The commenter contends that the EPA cannot rationally evaluate Texas' SIP submittal until we comply with the court's remand. The commenter specifically contends that the EPA must replace the CSAPR budgets with lawful budgets that do not require more control than necessary to comply with the 1997 ozone NAAQS, and that otherwise, the EPA has no basis to disapprove the Texas SIP submittal. By failing to establish lawful budgets, the commenter claims that the EPA does not have the information necessary to evaluate additional reductions associated with Texas' plan to comply with the 2008 ozone NAAQS. Response: The EPA has an independent statutory obligation to evaluate Texas' SIP submittal addressing the good neighbor provision with respect to the 2008 ozone NAAQS. The fact that the EPA has not yet completed its response to the D.C. Circuit's remand to address interstate transport with respect to the 1997 ozone NAAQS does not preclude either the state from addressing its own statutory obligation with respect to the 2008 ozone NAAQS pursuant to CAA section 110(a)(2)(D)(i)(I) or the EPA from fulfilling its statutory obligation to review the SIP submittal pursuant to CAA section 110(k). As noted earlier, the EPA has identified several deficiencies with the interstate transport analysis in the Texas SIP submittal that are unrelated to the CSAPR rulemakings either with respect to the 1997 or 2008 ozone standards. The EPA has proposed its intended response to address the D.C. Circuit's remand of the CSAPR ozone season NOX budgets in the context of the CSAPR Update, which is expected to be finalized later this year. The commenter does not explain how the EPA's finalization of this action with respect to the 1997 ozone standard would aid in the state's evaluation of transport with respect to the 2008 ozone standard. Nonetheless, should the commenter have any concerns about the EPA's approach to addressing the court's remand, the appropriate venue for the EPA's evaluation of those concerns is in the context of the CSAPR Update rulemaking. Any concerns are outside the scope of this rulemaking. Comment: Luminant stated that we must reopen the comment period for the CSAPR Update rulemaking. Luminant contends that comments previously submitted on the CSAPR Update proposal have limited utility because the EPA's rationale for disapproving Texas' SIP submittal was not known at the time those comments were submitted for that proposal. Response: As noted earlier, the EPA has identified several deficiencies with the interstate transport analysis in the Texas SIP submittal that are unrelated to the CSAPR Update rulemaking. Moreover, any request to reopen the public comment period on the CSAPR Update is not appropriately raised in this rulemaking. III. Final Action For the reasons described in the proposal and in this final action, the EPA is disapproving a portion of the December 13, 2012 SIP submittal from Texas seeking to address the required infrastructure element under CAA section 110(a)(2)(D)(i)(I) with respect to the State's significant contribution to nonattainment or interference with maintenance of the 2008 ozone NAAQS in other states, known as prongs 1 and 2 of the good neighbor provision. In a separate action, we disapproved the portion of the SIP submittal pertaining to the CAA section 110(a)(2)(D)(i)(II) requirement to address the interstate transport of air pollution which will interfere with other states' programs for visibility protection (81 FR 296, January 5, 2016). We proposed to approve the other portions of the infrastructure SIP submittal on February 8, 2016 (81 FR 6483). We expect to take final action on the other portions of the Texas infrastructure SIP at a later date. [[Page 53290]] Pursuant to CAA section 110(c)(1), this disapproval establishes a 2-year deadline for the EPA to promulgate a FIP for Texas to address the requirements of CAA section 110(a)(2)(D)(i) with respect to the 2008 ozone NAAQS unless Texas submits and we approve a SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for Texas pursuant to CAA section 179 because this action does not pertain to a part D plan for nonattainment areas required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA section 110(k)(5). IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This final action is not a ``significant regulatory action'' and was therefore not submitted to the Office of Management and Budget for review. B. Paperwork Reduction Act (PRA) This final action does not impose an information collection burden under the PRA because it does not contain any information collection activities. C. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action merely disapproves a SIP submittal as not meeting certain CAA requirements. D. Unfunded Mandates Reform Act (UMRA) This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. 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. This action does not apply on any Indian reservation land, any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. 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 only 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 merely disapproves a SIP submittal as not meeting certain CAA requirements. H. Executive Order 13211: Actions 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 This rulemaking does not involve technical standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action merely disapproves a SIP submittal as not meeting certain CAA requirements. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Ozone. Dated: August 1, 2016. Ron Curry, Regional Administrator, Region 6. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart SS--Texas 0 2. Section 52.2275 is amended by adding paragraph (l) to read as follows: Sec. 52.2275 Control strategy and regulations: Ozone. * * * * * (l) The portion of the SIP submitted on December 13, 2012 addressing Clean Air Act section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS is disapproved. [FR Doc. 2016-19151 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
![53284 Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Rules and Regulations
the submittal titled ‘‘Reasonably copy at EPA Region 6, 1445 Ross Texas and other states could no longer
Available Control Technology (RACT) Avenue, Suite 700, Dallas, Texas 75202– rely on the implementation of the Clean
as Applicable to the 8-Hour Ozone 2733. Air Interstate Rule (CAIR) to satisfy
Standard,’’ dated October 26, 2006, as FOR FURTHER INFORMATION CONTACT: Carl emission reduction obligations with
adopted on October 26, 2006 and Young, 214–665–6645, young.carl@ respect to the 2008 ozone NAAQS (81
submitted on July 11, 2007. epa.gov. FR 21290, 21294–5). The EPA is
(ii) [Reserved] finalizing its proposed disapproval in
SUPPLEMENTARY INFORMATION:
(2) [Reserved] this action.
Throughout this document, ‘‘we,’’ ‘‘us,’’
[FR Doc. 2016–18900 Filed 8–11–16; 8:45 am] We received three comments during
and ‘‘our’’ means the EPA.
BILLING CODE 6560–50–P the comment period on our proposed
I. Background SIP disapproval. The comments were
This rulemaking addresses an submitted by the State of Texas (Texas
ENVIRONMENTAL PROTECTION infrastructure SIP submittal from the Commission on Environmental Quality
AGENCY state of Texas addressing, among other ‘‘TCEQ’’), Luminant (a Texas electricity
things, the requirements of CAA section producer) and a member of the public.
40 CFR Part 52 A synopsis of the comments and our
110(a)(2)(D)(i)(I), also known as the
[EPA–R06–OAR–2012–0985; FRL–9950–50– good neighbor provision (or interstate responses are provided below.
Region 6] transport prongs 1 and 2), with respect II. Response to Comments
to the 2008 ozone NAAQS. The
Approval and Promulgation of Air background for this action is discussed Comment: Comments were received
Quality Implementation Plans; Texas; in detail in our April 11, 2016 proposal from a member of the public that was
Interstate Transport of Air Pollution for (81 FR 21290). In that action we supportive of the EPA’s basis for its
the 2008 Ozone National Ambient Air proposed to disapprove the portion of proposed action, but added that (1) the
Quality Standards the December 13, 2012 Texas SIP public can better understand how we
submittal pertaining to CAA section are using the most current information
AGENCY: Environmental Protection
110(a)(2)(D)(i)(I) which requires that the if we clarify and explain how the
Agency (EPA).
State prohibit any emissions activity projections and modeling discussed in
ACTION: Final rule.
within the state from emitting air the evaluation for our proposal are
SUMMARY: The Environmental Protection pollutants which will significantly informed by recent ozone monitoring
Agency (EPA) is disapproving the contribute to nonattainment (prong 1) or data, and (2) the commenter stated that
portion of a Texas State Implementation interfere with maintenance (prong 2) of the EPA took too long to propose action
Plan (SIP) submittal pertaining to the 2008 ozone NAAQS in other states.1 on the Texas SIP revision, noting that
interstate transport of air pollution In proposing to disapprove the SIP Texas would benefit from earlier review
which will significantly contribute to submittal as to prongs 1 and 2 of the of its analysis by the EPA.
nonattainment or interfere with good neighbor provision, we noted Response: We agree with the
maintenance of the 2008 ozone National several deficiencies in Texas’ submittal: commenter’s conclusion that Texas’s
Ambient Air Quality Standard (NAAQS) (1) Texas limited its discussion of data SIP submittal was inadequate to address
in other states. Disapproval establishes only to areas designated nonattainment the statutory interstate transport
a 2-year deadline for the EPA to in states that are geographically closest requirements with respect to the 2008
promulgate a Federal Implementation to Texas (Arizona, Arkansas, Colorado, ozone NAAQS. With respect to the
Plan (FIP) for Texas to address the Clean Illinois, Indiana, Louisiana, Mississippi, commenter’s first concern, the
Air Act (CAA) interstate transport Missouri, Tennessee, and Wisconsin); projections and modeling released c in
requirements pertaining to significant and (2) Texas did not give the ‘‘interfere the August 4, 2015 NODA and the
contribution to nonattainment and with maintenance’’ clause of CAA proposed CSAPR Update, which we also
interference with maintenance of the section 110(a)(2)(D)(i)(I) independent o recited in the EPA’s proposed action
2008 ozone NAAQS in other states, significance because its analysis did not on the Texas SIP submittal. In our
unless the EPA approves a SIP that attempt to evaluate the potential impact CSAPR Update proposal, we explained
meets these requirements. Disapproval of Texas emissions on areas that are how the CSAPR Update Rule proposed
does not start a mandatory sanctions currently measuring clean data, but that to use recent ozone monitoring data to
clock for Texas. may have issues maintaining that air inform our evaluation of interstate
DATES: This rule is effective on quality.2 Finally, the EPA explained that transport (80 FR 75706, 75724). We
September 12, 2016. proposed to identify as nonattainment
1 In a separate action, we disapproved the portion receptors those monitoring sites that (1)
ADDRESSES: The EPA has established a
of the SIP submittal pertaining to the CAA section measured ozone concentrations that
docket for this action under Docket ID 110(a)(2)(D)(i)(II) requirement to address the exceed the NAAQS based on monitoring
No. EPA–R06–OAR–2012–0985. All interstate transport of air pollution which will
data from years 2012–2014, and (2) are
documents in the docket are listed on interfere with other states’ programs for visibility
projected to exceed the NAAQS in 2017
the http://www.regulations.gov Web protection (81 FR 296, January 5, 2016). We
proposed to approve the other portions of the
site. Although listed in the index, some infrastructure SIP submittal on February 8, 2016 (81 2008 ozone NAAQS. See Notice of Data Availability
information is not publicly available, FR 6483). (NODA), 80 FR 46271, (August 4, 2015) and the
e.g., Confidential Business Information 2 In addition, the EPA cited at proposal certain proposed CSAPR Update, 80 FR 75706 (December
or other information whose disclosure is technical information the agency had released in 3, 2015). We also noted at proposal that the EPA
order to facilitate efforts to address interstate technical information in the NODA and the
restricted by statute. Certain other
ehiers on DSK5VPTVN1PROD with RULES
transport requirements for the 2008 ozone NAAQS, proposed CSAPR Update accounted for the
material, such as copyrighted material, and that this information was used to support the emission reductions resulting from controls listed
is not placed on the Internet and will be proposed Cross-State Air Pollution Rule Update for in the SIP, implemented within the state, and
publicly available only in hard copy. the 2008 ozone NAAQS (CSAPR Update) (81 FR nonetheless showed that Texas will contribute to
21299, 21292). We noted that such information downwind air quality problems. The CSAPR
Publicly available docket materials are contradicts Texas’ conclusions that its SIP Update, however, is outside the scope of this action,
available either electronically through contained adequate provisions to meet the CAA and is irrelevant to the question of whether the
http://www.regulations.gov or in hard interstate transport requirements with respect to the Texas SIP should be disapproved.
VerDate Sep<11>2014 14:21 Aug 11, 2016 Jkt 238001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\12AUR1.SGM 12AUR1](https://thefederalregister.org/doc/81_FR_53440/page/1.svg)
![53286 Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Rules and Regulations
NOXSIP Call and CAIR 5), the CAA does and contribution information the EPA this final action does not promulgate a
not require such an approach. Regarding relied upon for its proposed FIP nor make any final determination
the commenter’s contention that the disapproval. The EPA has not received regarding whether and when the EPA
EPA’s alleged inability to review SIP any information demonstrating the will promulgate a FIP. The EPA will
submittals within the CAA timelines identified inadequacies of the SIP determine whether to issue a FIP in the
undermines the ability of states to submittal and the data showing the context of the CSAPR Update in the
submit sufficient SIPs, the State’s ability effect of Texas emissions in downwind rulemaking for that action, and thus any
to submit a sufficient SIP that meets the states are inaccurate. concerns regarding the EPA’s authority
applicable requirements is unrelated to Whether the EPA appropriately to issue a FIP are appropriately raised
the EPA’s timeline for review. proposed the CSAPR Update is outside only in the context of that rulemaking.
Comment: TCEQ and Luminant both the scope of this action, and is irrelevant Finally, the EPA disagrees with the
state that the EPA’s public notice on the to the question of whether the Texas SIP commenters’ claim that had we
proposed disapproval is not meaningful should be disapproved. The bases for reviewed the SIP revision before
because they contend that the outcome the disapproval are further explained in proposing the CSAPR Update for Texas,
was predetermined when the EPA both the proposal and this final action, the state would have had the
proposed a FIP for Texas in the and do not rely upon the proposed opportunity contemplated by the CAA
proposed CSAPR Update. They stated CSAPR Update. As described in the to correct any problems with its SIP in
that at the time of the proposed FIP to proposal and earlier in this document, a timely fashion in order to avoid the
update CSAPR, the EPA had taken no whether or not the EPA had proposed imposition of the FIP. Contrary to
action on the previously submitted SIP the CSAPR Update, Texas’ SIP submittal commenters’ assertions, CAA does not
submittal from Texas addressing failed to include an analysis that contemplate that a state have an
interstate transport with respect to the appropriately evaluated the impact of opportunity to correct deficiencies with
2008 ozone NAAQS. The commenters state emissions on areas in other states, its SIP either before the EPA takes
contend that the EPA should have regardless of current nonattainment action to act on the SIP or before the
evaluated the SIP submittal prior to designations and considering the ability EPA imposes a FIP after disapproval of
proposing a CSAPR Update that of areas currently measuring clean data a SIP. CAA section 110(c) provides that
included Texas. The commenters also to maintain that standard. These the EPA ‘‘shall promulgate a [FIP] at any
stated that we had not satisfied the deficiencies are completely independent time within two years after’’ the EPA
prerequisites of CAA section 110(c)(1) of any analysis conducted to support the either finds that a state has failed to
when we issued the proposed FIP for CSAPR Update proposal. make a required submittal or
Texas in the proposed CSAPR Update. Moreover, while the CSAPR Update disapproves a SIP, in whole or in part.
The commenters therefore contend that proposal also relied upon the same As the Supreme Court confirmed in EPA
the proposed SIP disapproval is only a modeling and contribution information v. EME Homer City Generation. L.P.,
post hoc rationalization for the to identify which states might be subject ‘‘EPA is not obliged to wait two years
proposed CSAPR Update, and our to a FIP in the final rulemaking, in the or postpone its action even a single day:
approach is unlawful and impermissibly absence of an approvable SIP, the The Act empowers the Agency to
treads on cooperative federalism proposed disapproval of the Texas SIP promulgate a FIP ‘at any time’ within
required under the CAA. Lastly, the did not rely upon the proposed findings the two-year limit.’’ EPA v. EME Homer
commenters claim that had we reviewed in the CSAPR Update but rather cited, City Generation, L.P., 134 S. Ct. 1584,
in addition to other deficiencies 1600–01 (2014). The EPA notes,
the SIP revision before proposing the
identified with the Texas SIP, technical however, that states have the ability at
CSAPR Update for Texas, the state
data that was relevant to and any time, including before or after the
would have had the opportunity
informative for both proposals. imposition of a FIP, to submit an
contemplated by the CAA to correct any Our actions are consistent with CAA
problems with its SIP in a timely approvable SIP, which corrects any
section 110(c) prerequisites in deficiency.
fashion and avoid the imposition of the promulgating a FIP. In our December 3, Comment: TCEQ commented that we
FIP. 2015 Federal Register notice, we inappropriately stated that it should
Response: We disagree with the
proposed to include Texas in the have considered possible contributions
commenters that the proposed
CSAPR Update (80 FR 75706). In that to downwind areas that are not
disapproval was predetermined when proposal we recognized that we could designated nonattainment but may
the EPA issued the proposed CSAPR not promulgate a FIP for any state, nonetheless measure exceedances of the
Update that included a FIP for Texas. including Texas, in the final CSAPR NAAQS. TCEQ further stated that we
Our proposal to disapprove the Texas Update unless we found that the state fail to mention how Texas might have
SIP provided proper notice and an had failed to make an approvable SIP accomplished this theoretical exercise
opportunity for public comment, as submittal (80 FR 75719–20). A proposed particularly without EPA guidance on
legally required, and provided distinct rulemaking does not constitute a how to develop its transport SIP and
bases for the proposed disapproval. promulgation of a rule by the EPA, and considering the EPA relies on
Importantly, the proposed disapproval therefore the proposed CSAPR Update nationwide modeling to determine
of the Texas SIP allowed an opportunity does not constitute a ‘‘predetermined potential exceedances in areas that are
for submittal of any information that outcome’’ of EPA’s review of Texas’ SIP attaining the NAAQS that is not made
could have changed our proposed views submittal, as the commenters describe, available to states prior to the statutory
concerning (1) the adequacy of the SIP nor a promulgated FIP under CAA due dates for state transport SIPs. The
submittal, and (2) the effect of Texas section 110(c). Were the EPA to finalize TCEQ concedes that the EPA may now
ehiers on DSK5VPTVN1PROD with RULES
emissions on ozone levels in downwind an approval of Texas’ SIP, the EPA consider the CSAPR schema to be
states as demonstrated in the modeling would not finalize the proposed appropriate guidance for transport
5 For information on the NO SIP call see 63 FR
inclusion of Texas in any final CSAPR regulation, but contends that it is still
X
57356 (October 27, 1998). For information on CAIR
Update. However, for the reasons not possible for states to effectively
(the Clean Air Interstate Rule) see 70 FR 25162 described earlier, the EPA is finalizing respond with timely transport SIPs. The
(May 12, 2005). its disapproval of Texas’ SIP. However, commenter again notes that the EPA did
VerDate Sep<11>2014 14:21 Aug 11, 2016 Jkt 238001 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 E:\FR\FM\12AUR1.SGM 12AUR1](https://thefederalregister.org/doc/81_FR_53440/page/3.svg)
![Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Rules and Regulations 53287
not explain what type of transport North Carolina v. EPA, (531 F.3d 896, area designations and considering the
analysis would be considered D.C. Cir. 2008), was specifically requirements of both prongs of the good
satisfactory when the EPA issued SIP concerned with areas not designated neighbor provision. As we noted above
guidance in 2013. nonattainment when it rejected the view and as found by the Supreme Court in
Response: Regardless of an air quality that ‘‘a state can never ‘interfere with EME Homer City Generation, L.P., the
designation, any area may violate the maintenance’ unless the EPA lack of guidance does not relieve either
NAAQS if upwind emissions affecting determines that at one point it the states of the obligation to submit
air quality are not adequately ‘contribute[d] significantly to SIPs that address CAA section
controlled. The EPA has routinely nonattainment.’ ’’ 531 F.3d at 910. The 110(a)(2)(D)(i)(I) nor the EPA of the
interpreted the obligation to prohibit court pointed out that areas barely obligation to review such SIPs
emissions that ‘‘significantly contribute attaining the standard due in part to consistent with the statutory
to nonattainment’’ of the NAAQS in emissions from upwind sources would requirements of the good neighbor
downwind states to be independent of have ‘‘no recourse’’ pursuant to such an provision. For the 2015 ozone NAAQS,
formal designations because interpretation. Id. Accordingly, and as we plan to provide information
exceedances can happen in any area.6 described in the proposal, the court pertaining to interstate transport of air
Nothing in the CAA limits States’ explained that the regulatory authority pollution later this year.8 Interstate
obligations under the good neighbor must give ‘‘independent significance’’ to transport SIPs for the 2015 ozone
provision to downwind areas that have the maintenance prong of CAA section NAAQS are due October 26, 2018. We
been formally designated 110(a)(2)(D)(i)(I) by separately plan to continue our ongoing dialogue
nonattainment. To the contrary, CAA identifying such downwind areas for with states to assist in developing an
section 110(a)(2)(D)(i)(I) requires States purposes of defining states’ obligations appropriate transport SIP.
to prohibit emissions that ‘‘will pursuant to the good neighbor Comment: TCEQ and Luminant both
contribute significantly to provision. Thus, Texas should have state that in our CSAPR Update
nonattainment in . . . any other State.’’ considered the potential impact of its proposal the EPA did not give
(emphasis added). The future tense emissions on areas that are currently independent effect to both the
demonstrates that Congress intended measuring clean data, but may have ‘‘contribute significantly to
this requirement to be forward-looking issues maintaining that air quality. nonattainment’’ and the ‘‘interfere with
and apply to areas that will be in Although the TCEQ questions how it maintenance’’ requirements as
nonattainment regardless of formal could have completed such an analysis nonattainment and maintenance
designation. An area with air quality without explicit guidance from the EPA receptors are treated exactly the same
that is projected to exceed the NAAQS and before the EPA had conducted air way as far as linkages to states are
would be in nonattainment, and thus quality modeling evaluating downwind defined and emission budgets are set.
not meeting public health-based air quality and contributions, as Luminant also claims that the EPA
standards, regardless of whether it has explained earlier, states bear the would be in violation of the Supreme
been formally designated as a primary responsibility for Court in EME Homer City Generation,
nonattainment area. An upwind state demonstrating that their plans contain L.P. if we impose the same ‘‘cost-
cannot be relieved of its obligation to adequate provisions to address the effective controls’’ to address both
address interstate transport of air statutory interstate transport provisions interference with maintenance and
pollution merely because of a lack of and the EPA is not required to issue significant contribution to
formal designation. Thus, Texas should guidance. In separate interstate nonattainment.
have considered possible contributions transport actions, the EPA has reviewed Further, the comments state that
to downwind areas that are not and finalized action on interstate because some states are linked to
designated nonattainment but may transport SIPs in states where air quality receptors in marginal nonattainment
nonetheless measure exceedances of the modeling was not available or where the areas, the EPA is requiring emissions
NAAQS in considering whether Texas total weight of evidence for finalizing reductions from upwind states,
emissions significantly contribute to action on the state’s SIP was not solely including Texas, to assist states that do
nonattainment in another state. based on air quality modeling, not have make emission reductions or
With respect to the ‘‘interfere with according to these standards.7 As institute control strategies of their own.
maintenance’’ requirement, the court in evidenced by these actions, Further, the comments claim that we
consideration of monitoring data is one have failed to identify any balance
6 See, e.g., Clean Air Interstate Rule, 70 FR 25162, valid way to evaluate potential between local controls in areas with
25265 (May 12, 2005) (‘‘As to impacts, CAA section interstate transport impacts, but it does potential maintenance problems and
110(a)(2)(D) refers only to prevention of not absolve a state from evaluating its
‘nonattainment’ in other States, not to prevention of reductions that it is requiring of states
nonattainment in designated nonattainment areas or downwind impact regardless of formal upwind that it models as contributing at
any similar formulation requiring that designations least 1% of the relevant NAAQS to these
for downwind nonattainment areas must first have 7 See, e.g., Air Quality State Implementation
areas with modeled, not monitored,
occurred.’’); Cross-State Air Pollution Rule, 76 FR Plans; Approvals and Promulgations: Utah;
48208, 48211 (Aug. 8, 2011) (evaluating Interstate Transport of Pollution for the 2006 PM2.5 issues.
nonattainment and maintenance concerns based on NAAQS May 20, 2013 (78 FR 29314); Final Rule, The commenters also disagree with
modeled projections); Brief for Respondents U.S. 78 FR 48615 (August 9, 2013); Approval and the EPA’s finding that the Texas SIP
Environmental Protection Agency at 23–24, EME Promulgation of Implementation Plans; State of submittal did not give independent
Homer City Generation, L.P. v. EPA, Case No. 11– California; Interstate Transport of Pollution;
1302 (D.C. Cir. Jan. 16, 2015), ECF No. 1532516 Significant Contribution to Nonattainment and significance to the CAA ‘‘interfere with
(defending the EPA’s identification of air quality Interference With Maintenance Requirements,
ehiers on DSK5VPTVN1PROD with RULES
problems in CSAPR independent of area Proposed Rule, 76 FR 146516, 14616–14626 (March 8 See pages 6–7 of the attachment to the October
designations). Cf. Final Response to Petition from 17, 2011); Final Rule, 76 FR 34872 (June 15, 2011); 1, 2015 EPA memorandum ‘‘Implementing the 2015
New Jersey Regarding SO2 Emissions From the Approval and Promulgation of State Ozone National Ambient Air Quality Standards’’
Portland Generating Station, 76 FR 69052 (Nov. 7, Implementation Plans; State of Colorado; Interstate from Janet McCabe, Acting Assistant Administrator,
2011) (finding facility in violation of the Transport of Pollution for the 2006 24-Hour PM2.5 Office of Air and Radiation to Regional
prohibitions of CAA section 110(a)(2)(D)(i)(I) with NAAQS, Proposed Rule, 80 FR 27121, 27124–27125 Administrators, Regions 1–10, https://
respect to the 2010 SO2 NAAQS prior to issuance (May 12, 2015); Final Rule, 80 FR 47862 (August www.epa.gov/sites/production/files/2015-10/
of designations for that standard). 10, 2015). documents/implementation_memo.pdf.
VerDate Sep<11>2014 14:21 Aug 11, 2016 Jkt 238001 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\12AUR1.SGM 12AUR1](https://thefederalregister.org/doc/81_FR_53440/page/4.svg)
![Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Rules and Regulations 53289
historical and present EPA policies. Texas contributes to other states’ ozone are unrelated to the CSAPR rulemakings
TCEQ also notes that the EPA does not concentrations. either with respect to the 1997 or 2008
redesignate an area to attainment when Response: The EPA’s authority and ozone standards.
an area models attainment as part of an obligation under the Act is to review a The EPA has proposed its intended
attainment demonstration, but rather SIP submittal and determine whether it response to address the D.C. Circuit’s
uses monitoring data to verify meets the applicable requirements of the remand of the CSAPR ozone season
attainment before redesignation. Act and regulations, regardless of NOX budgets in the context of the
Response: While the EPA does rely on whether we commented on a State’s CSAPR Update, which is expected to be
ambient air quality monitoring data to proposed SIP during its State finalized later this year. The commenter
make decisions on ozone nonattainment rulemaking process. There is no does not explain how the EPA’s
designations and redesignations, the requirement in the Act that the EPA finalization of this action with respect to
EPA has routinely based its must review, evaluate, and comment on the 1997 ozone standard would aid in
determination of receptors for purposes a State’s proposed SIP revision during the state’s evaluation of transport with
of evaluating interstate ozone transport the state rulemaking process, and no respect to the 2008 ozone standard.
on air quality modeling projections.9 reasonable or legal basis for states to Nonetheless, should the commenter
This is because, regardless of assume that the EPA’s choosing to not have any concerns about the EPA’s
designation, any area may violate the provide comment on their analysis approach to addressing the court’s
NAAQS if upwind emissions affecting during the state public comment period remand, the appropriate venue for the
air quality are not adequately constitutes the Agency’s endorsement of EPA’s evaluation of those concerns is in
controlled, and areas currently such analysis. the context of the CSAPR Update
measuring clean data may still violate Comment: Luminant stated that the rulemaking. Any concerns are outside
the NAAQS if conditions change such EPA needs to revise the CSAPR ozone the scope of this rulemaking.
that attainment with the NAAQS can no season NOX budgets in accordance with
Comment: Luminant stated that we
longer be maintained. Thus, the means the D.C. Circuit’s remand in EME Homer
must reopen the comment period for the
by which the EPA makes decisions with City Generation, L.P. before the EPA can
CSAPR Update rulemaking. Luminant
respect to area designations is not evaluate Texas’ SIP submittal. See EME
contends that comments previously
relevant to our identification of Homer City Generation, L.P. v EPA, 795
submitted on the CSAPR Update
receptors that should be evaluated for F.3d 118 (D.C. Cir. 2015). Luminant
proposal have limited utility because
interstate transport of air pollution. In stated that, by failing to issue new
the EPA’s rationale for disapproving
North Carolina v. EPA, the D.C. Circuit budgets for the 1997 ozone NAAQS, we
are in violation of the D.C. Circuit’s Texas’ SIP submittal was not known at
concluded that the EPA’s reliance on
specific remand instructions. The the time those comments were
future projections to identify such
commenter contends that the EPA submitted for that proposal.
receptors was a reasonable application
of the statute. North Carolina, 531 F.3d cannot rationally evaluate Texas’ SIP Response: As noted earlier, the EPA
at 914. Nonetheless, while the EPA has submittal until we comply with the has identified several deficiencies with
relied upon modeling to identify court’s remand. The commenter the interstate transport analysis in the
downwind air quality problems, the specifically contends that the EPA must Texas SIP submittal that are unrelated to
EPA has also stated that states may replace the CSAPR budgets with lawful the CSAPR Update rulemaking.
consider other types of data when budgets that do not require more control Moreover, any request to reopen the
evaluating interstate transport in than necessary to comply with the 1997 public comment period on the CSAPR
developing their SIPs. See ozone NAAQS, and that otherwise, the Update is not appropriately raised in
Memorandum from William T. Harnett EPA has no basis to disapprove the this rulemaking.
to Regional Air Division Directors, Texas SIP submittal. By failing to III. Final Action
Regions I–X, ‘‘Guidance on SIP establish lawful budgets, the commenter
Elements Required Under [CAA] claims that the EPA does not have the For the reasons described in the
Sections 110(a)(1) and (2) for the 2006 information necessary to evaluate proposal and in this final action, the
24-Hour Fine Particle (PM2.5) National additional reductions associated with EPA is disapproving a portion of the
Ambient Air Quality Standards Texas’ plan to comply with the 2008 December 13, 2012 SIP submittal from
(NAAQS)’’, September 25, 2009.10 ozone NAAQS. Texas seeking to address the required
Indeed, as described earlier, the EPA Response: The EPA has an infrastructure element under CAA
has regularly evaluated interstate independent statutory obligation to section 110(a)(2)(D)(i)(I) with respect to
transport SIPs in western states, where evaluate Texas’ SIP submittal the State’s significant contribution to
modeling has not typically been addressing the good neighbor provision nonattainment or interference with
available, considering monitored data in with respect to the 2008 ozone NAAQS. maintenance of the 2008 ozone NAAQS
a manner that is consistent with the The fact that the EPA has not yet in other states, known as prongs 1 and
standards described in this document. completed its response to the D.C. 2 of the good neighbor provision.
Comment: TCEQ stated that we failed Circuit’s remand to address interstate In a separate action, we disapproved
to give comments on the adequacy of transport with respect to the 1997 ozone the portion of the SIP submittal
the State’s interstate transport analysis NAAQS does not preclude either the pertaining to the CAA section
during the State public comment period state from addressing its own statutory 110(a)(2)(D)(i)(II) requirement to address
and that the lack of comments led the obligation with respect to the 2008 the interstate transport of air pollution
State to believe that the submitted ozone NAAQS pursuant to CAA section which will interfere with other states’
analysis was adequate to show how 110(a)(2)(D)(i)(I) or the EPA from programs for visibility protection (81 FR
ehiers on DSK5VPTVN1PROD with RULES
fulfilling its statutory obligation to 296, January 5, 2016). We proposed to
9 See CSAPR (76 FR 48208, August 8, 2011), CAIR review the SIP submittal pursuant to approve the other portions of the
(70 FR 25162, May 12, 2005) and the NOX SIP call CAA section 110(k). As noted earlier, infrastructure SIP submittal on February
(63 FR 57356, October 27, 1998).
10 https://www3.epa.gov/ttn/naaqs/aqmguide/
the EPA has identified several 8, 2016 (81 FR 6483). We expect to take
collection/cp2/20090925_harnett_section_110(a)_ deficiencies with the interstate transport final action on the other portions of the
sip_2006_24-hr_pm2.5_naaqs.pdf. analysis in the Texas SIP submittal that Texas infrastructure SIP at a later date.
VerDate Sep<11>2014 14:21 Aug 11, 2016 Jkt 238001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\12AUR1.SGM 12AUR1](https://thefederalregister.org/doc/81_FR_53440/page/6.svg)
![53290 Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Rules and Regulations
Pursuant to CAA section 110(c)(1), tribe has demonstrated that a tribe has Under section 307(b)(1) of the CAA,
this disapproval establishes a 2-year jurisdiction, or non-reservation areas of petitions for judicial review of this
deadline for the EPA to promulgate a Indian country. Thus, Executive Order action must be filed in the United States
FIP for Texas to address the 13175 does not apply to this action. Court of Appeals for the appropriate
requirements of CAA section circuit by October 11, 2016. Filing a
G. Executive Order 13045: Protection of
110(a)(2)(D)(i) with respect to the 2008 petition for reconsideration by the
ozone NAAQS unless Texas submits Children From Environmental Health
Administrator of this final rule does not
and we approve a SIP that meets these Risks and Safety Risks
affect the finality of this action for the
requirements. Disapproval does not start The EPA interprets Executive Order purposes of judicial review nor does it
a mandatory sanctions clock for Texas 13045 as applying only to those extend the time within which a petition
pursuant to CAA section 179 because regulatory actions that concern for judicial review may be filed, and
this action does not pertain to a part D environmental health or safety risks that shall not postpone the effectiveness of
plan for nonattainment areas required the EPA has reason to believe may such rule or action. This action may not
under CAA section 110(a)(2)(I) or a SIP disproportionately affect children, per be challenged later in proceedings to
call pursuant to CAA section 110(k)(5). the definition of ‘‘covered regulatory enforce its requirements. (See CAA
action’’ in section 2–202 of the section 307(b)(2).)
IV. Statutory and Executive Order Executive Order. This action is not
Reviews subject to Executive Order 13045 List of Subjects in 40 CFR Part 52
A. Executive Order 12866: Regulatory because it merely disapproves a SIP Environmental protection, Air
Planning and Review and Executive submittal as not meeting certain CAA pollution control, Incorporation by
Order 13563: Improving Regulation and requirements. reference, Ozone.
Regulatory Review H. Executive Order 13211: Actions That Dated: August 1, 2016.
This final action is not a ‘‘significant Significantly Affect Energy Supply, Ron Curry,
regulatory action’’ and was therefore not Distribution or Use Regional Administrator, Region 6.
submitted to the Office of Management This action is not subject to Executive 40 CFR part 52 is amended as follows:
and Budget for review. Order 13211, because it is not a
B. Paperwork Reduction Act (PRA) significant regulatory action under PART 52—APPROVAL AND
Executive Order 12866. PROMULGATION OF
This final action does not impose an IMPLEMENTATION PLANS
information collection burden under the I. National Technology Transfer and
PRA because it does not contain any Advancement Act ■ 1. The authority citation for part 52
information collection activities. continues to read as follows:
This rulemaking does not involve
C. Regulatory Flexibility Act (RFA) technical standards. Authority: 42 U.S.C. 7401 et seq.
I certify that this action will not have J. Executive Order 12898: Federal Subpart SS—Texas
a significant economic impact on a Actions To Address Environmental
substantial number of small entities Justice in Minority Populations and ■ 2. Section 52.2275 is amended by
under the RFA. This action merely Low-Income Populations adding paragraph (l) to read as follows:
disapproves a SIP submittal as not
The EPA believes the human health or § 52.2275 Control strategy and
meeting certain CAA requirements.
environmental risk addressed by this regulations: Ozone.
D. Unfunded Mandates Reform Act action will not have potential
* * * * *
(UMRA) disproportionately high and adverse (l) The portion of the SIP submitted
This action does not contain any human health or environmental effects on December 13, 2012 addressing Clean
unfunded mandate as described in on minority, low-income or indigenous Air Act section 110(a)(2)(D)(i)(I) for the
UMRA, 2 U.S.C. 1531–1538, and does populations. This action merely 2008 ozone NAAQS is disapproved.
not significantly or uniquely affect small disapproves a SIP submittal as not
[FR Doc. 2016–19151 Filed 8–11–16; 8:45 am]
governments. The action imposes no meeting certain CAA requirements.
enforceable duty on any state, local or The Congressional Review Act, 5 BILLING CODE 6560–50–P
tribal governments or the private sector. U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
E. Executive Order 13132: Federalism Fairness Act of 1996, generally provides ENVIRONMENTAL PROTECTION
that before a rule may take effect, the AGENCY
This action does not have federalism
implications. It will not have substantial agency promulgating the rule must 40 CFR Part 52
direct effects on the states, on the submit a rule report, which includes a
relationship between the national copy of the rule, to each House of the [EPA–R10–OAR–2015–0397; FRL–9950–58–
Congress and to the Comptroller General Region 10]
government and the states, or on the
distribution of power and of the United States. The EPA will
submit a report containing this action Approval and Promulgation of
responsibilities among the various Implementation Plans; Idaho:
levels of government. and other required information to the
U.S. Senate, the U.S. House of Stationary Source Permitting
F. Executive Order 13175: Consultation Representatives, and the Comptroller Revisions
and Coordination With Indian Tribal General of the United States prior to AGENCY: Environmental Protection
ehiers on DSK5VPTVN1PROD with RULES
Governments publication of the rule in the Federal Agency (EPA).
This action does not have tribal Register. A major rule cannot take effect ACTION: Final rule.
implications as specified in Executive until 60 days after it is published in the
Order 13175. This action does not apply Federal Register. This action is not a SUMMARY: The Environmental Protection
on any Indian reservation land, any ‘‘major rule’’ as defined by 5 U.S.C. Agency (EPA) is approving, and
other area where the EPA or an Indian 804(2). incorporating by reference, revisions to
VerDate Sep<11>2014 14:21 Aug 11, 2016 Jkt 238001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\12AUR1.SGM 12AUR1](https://thefederalregister.org/doc/81_FR_53440/page/7.svg)
Document Created: 2018-02-09 11:33:14
Document Modified: 2018-02-09 11:33:14
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective on September 12, 2016. | |
| Contact | Carl Young, 214-665-6645, [email protected] | |
| FR Citation | 81 FR 53284 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference and Ozone |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR