81 FR 62375 - Approval and Promulgation of Air Quality Implementation Plans; Texas; Infrastructure or Requirements for the 2008 Ozone and 2010 Nitrogen Dioxide National Ambient Air Quality Standards
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 175 (September 9, 2016)
Federal Register Volume 81, Issue 175 (September 9, 2016)
| Page Range | 62375-62378 | |
| FR Document | 2016-21593 |
[Federal Register Volume 81, Number 175 (Friday, September 9, 2016)] [Rules and Regulations] [Pages 62375-62378] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-21593] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2012-0953; FRL-9950-77-Region 6] Approval and Promulgation of Air Quality Implementation Plans; Texas; Infrastructure or Requirements for the 2008 Ozone and 2010 Nitrogen Dioxide National Ambient Air Quality Standards AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is approving elements of State Implementation Plan (SIP) submissions from the State of Texas for Ozone (O3 ) and Nitrogen Dioxide (NO2 ) National Ambient Air Quality Standards (NAAQS). These submittals address how the existing SIP provides for implementation, maintenance, and enforcement of the 2008 O3 and 2010 NO2 NAAQS (infrastructure SIPs or i-SIPs). These i-SIPs ensure that the State's SIP is adequate to meet the State's responsibilities under the Federal Clean Air Act (CAA). DATES: This rule is effective on October 11, 2016. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2012-0953. 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 form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202- 2733. FOR FURTHER INFORMATION CONTACT: Sherry Fuerst, telephone (214) 665- 6454, fuerst.sherry@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and ``our'' means the EPA. I. Background The background for this action is discussed in detail in our February 8, 2016, proposal (81 FR 6483). In that document we proposed to approve elements of SIP submittals from the State of Texas for the 2008 O3 and 2010 NO2 NAAQS. These submittals address how the existing SIP provides for implementation, maintenance, and enforcement of the 2008 O3 and 2010 NO2 i- SIPs. We received comments on the proposal submitted jointly from two organizations. Our response to the comments are below. II. Response to Comments Comment: We received one set of comments--submitted jointly by the Sierra Club and Downwinders at Risk--on the February 8, 2016 proposal to approve certain elements of Texas's SIP submissions for the 2008 ozone and 2010 NO2 NAAQS. These comments are provided in the docket for today's rulemaking action. The commenters contend that EPA cannot approve the section 110(a)(2)(A) portion of Texas's 2008 ozone infrastructure SIP submission because of Fifth Circuit ``binding precedent'' purportedly holding this portion of the submission must ``prohibit upwind sources in Texas from significantly contributing to nonattainment in downwind areas'' in Texas. Specifically, the commenters contend that there are five coal-fired power plants in East Texas that ``significantly contribute'' to Dallas-Fort Worth's ozone nonattainment problem and that the Texas i-SIP fails to address those emissions. Response: We disagree with the commenters that infrastructure SIPs must include detailed attainment and maintenance plans for all areas of the state and must be disapproved if air quality data and modeling show current and future nonattainment. We believe that section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and that they contain enforceable control measures and demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS. The commenters suggest that EPA must disapprove the Texas ozone infrastructure SIP because of the fact that areas in Texas have air quality data and modeling projections above or forecasting above the standard, which proves that the infrastructure SIP is [[Page 62376]] inadequate. We disagree with the commenters because EPA does not believe that section 110(a)(2)(A) requires detailed planning SIPs demonstrating either attainment or maintenance for specific geographic areas of the state. The infrastructure SIP is triggered by promulgation of the NAAQS, not designation. Moreover, infrastructure SIPs are due three years following promulgation of the NAAQS. Thus, during a significant portion of the period that a state has available for developing the infrastructure SIP, it does not know what the designation will be for individual areas of the state. In light of the structure of the CAA, our long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state. Our interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in ``air quality control regions'' (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas in compliance with the NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for ``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the plan must include ``emission limitations, schedules, and timetables for compliance with such limitations and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].'' In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of the state were violating the NAAQS (i.e., were nonattainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS, with the primary provisions for ozone in section 182. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the clause ``as may be necessary to insure attainment and maintenance [of the NAAQS]'' with ``as may be necessary or appropriate to meet the applicable requirements of this chapter.'' Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping- stone in the planning process for a specific NAAQS. More detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS. For all of these reasons, EPA disagrees with the commenters that we must disapprove an infrastructure SIP revision if there are monitored or forecasted violations of the standard in the state and the section 110(a)(2)(A) revision does not have detailed plans for demonstrating how the state will bring that area into attainment. Rather we believe that the proper inquiry at this juncture is whether the state has met the basic structural SIP requirements appropriate at the point in time we are acting upon the submittal. Further, we disagree with the commenters' suggestion that the Texas SIP does not adequately address the CAA section 110(a)(2)(A) requirement for enforceable emission limits based on Sierra Club v. EPA, 314 F.3d 735 (5th Cir. 2002). The commenters contend that the Fifth Circuit's opinion in Sierra Club mandates disapproval by EPA of this i-SIP because Texas has areas measuring nonattainment of the NAAQS at issue. The Fifth Circuit's opinion is not ``binding precedent'' on this point, and mandates no such disapproval. To the extent the Fifth Circuit discussed section 110(a)(2)(A) at all in Sierra Club, it was in dicta. The Fifth Circuit's Sierra Club opinion primarily concerned the distinct issue of whether EPA's ``extension of the statutory date'' for Beaumont, Texas to attain the one-hour ozone NAAQS (and approval of Texas's attainment SIP based on that extension) complied with the CAA.\1\ The court's lone citation to CAA section 110(a)(2)(A) appears in a portion of the opinion titled, ``Factual and Procedural Background,'' following a brief discussion of CAA section 110(a)(2)(D)(i)(I). Read in full context, it is clear that the court's mention of section 110(a)(2)(A) is merely a recitation of the regulatory background, not a holding: --------------------------------------------------------------------------- \1\ See Sierra Club v. EPA, 314 F.3d 735, 739-43 (5th Cir. 2002). The case also addressed whether EPA had reasonably concluded that no additional Reasonably Available Control Measures were required for the Beaumont area. See id. at 743-45. Under the CAA, states must adopt SIPs specifying emission limitations applicable to pollution sources in order to maintain and enforce each NAAQS. 42 U.S.C. 7410(a). SIPs are submitted to the EPA, which may approve, conditionally approve, or disapprove the SIPs in full or in part. Id. Sec. 7410(k). Significantly, the CAA has a provision that requires SIPs to contain provisions regulating emissions that ``contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard.'' Id. Sec. 7410(a)(2)(D)(i)(I). In addition, as noted in the challenged final action, the EPA has interpreted 42 U.S.C. 7410 (a)(2)(A) as incorporating a similar requirement that an upwind area be prohibited from contributing significantly to nonattainment in a downwind area within the same state. See 66 FR 26,917.\2\ --------------------------------------------------------------------------- \2\ Id. at 737. This lone mention of CAA section 110(a)(2)(A) was likely because EPA had invoked its interpretation of that section as one justification for why it was reasonable to read the Act as permitting the relevant deadline extension. While this passing mention of CAA section 110(a)(2)(A) was dicta, the Fifth Circuit's decision invalidating EPA's extension policy was not: Regardless of the merits of EPA's proffered interpretation of CAA section 110(a)(2)(A), the court held at Chevron step one that the CAA did not authorize EPA to grant extensions of the attainment date.\3\ --------------------------------------------------------------------------- \3\ Id. at 740-41. --------------------------------------------------------------------------- The EPA interpretation mentioned off-hand in the Sierra Club opinion--i.e., that section 110(a)(2)(A) incorporates a similar requirement for intrastate transport as section 110(a)(2)(D)(i)(I) does for interstate transport--is no longer the Agency's interpretation and has not been so for quite some time.\4\ EPA's prior [[Page 62377]] interpretation is not ``carved in stone''; agencies are permitted to change their interpretations.\5\ EPA's most recent interpretation of CAA section 110(a)(2)(A) can be found in the 2013 Infrastructure SIP Guidance,\6\ as well as relatively recent regulatory actions.\7\ --------------------------------------------------------------------------- \4\ Likewise, the details of the Agency's interpretation of CAA section 110(a)(2)(D)(i)(I) have also changed, in part guided by U.S. Supreme Court and D.C. Circuit case law evaluating EPA's rulemakings under that provision. See, e.g., North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008) (evaluating EPA's Clean Air Interstate Rule, 70 FR 25,162 (May 12, 2005); EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), rev'd 134 S. Ct. 1584 (2014), remanded to 795 F.3d 118 (D.C. Cir. 2015) (evaluating EPA's Cross-State Air Pollution Rule, 76 FR 48208 (Aug. 8 2011)). \5\ See Nat'l Cable and Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981-82 (2005) (quoting Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 863-64 (1984)). \6\ Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2). \7\ See, e.g., 80 FR 33840. --------------------------------------------------------------------------- Even if the Fifth Circuit had not reversed the EPA's extension policy at Chevron step one (which it did), and even if the EPA had not subsequently changed its interpretation of CAA section 110(a)(2)(A) (which it has), the commenters would still be incorrect in their contention that EPA must use the same ``significant contribution'' analysis for intrastate emissions that EPA has recently used for interstate emissions under section 110(a)(2)(D)(i)(I). That analysis is based in part on an evaluation of ``the total `collective contribution' '' of multiple upwind interstate sources that is captured at various significance thresholds; \8\ it was never intended to apply in the intrastate context. Nor does the relevant statutory phrase, ``significant contribution,'' appear in CAA section 110(a)(2)(A). --------------------------------------------------------------------------- \8\ See, e.g., 76 FR 48208, 48236-37 (Aug. 8, 2011). --------------------------------------------------------------------------- Section 110(a)(2)(A) of the CAA requires enforceable emission limits and control measures. As noted in the 2012 Infrastructure SIP Guidance, a different part of the CAA, part D, outlines the process, timeframe, and substantive requirements for states to bring their nonattainment areas into attainment. The Fifth Circuit's Sierra Club opinion says nothing to the contrary. The court in no way ruled that infrastructure SIPs must contain provisions prohibiting upwind intrastate areas from ``significantly contributing'' to nonattainment in downwind intrastate areas, or that EPA must apply the same technical analysis to intrastate emissions as it does for interstate emissions under a different subsection. Commenters' reliance on the Fifth Circuit's opinion as setting forth that precedent is misplaced. In short, we disagree that the Sierra Club opinion constitutes ``binding precedent'' requiring us to disapprove the infrastructure SIP for CAA section 110(a)(2)(A). III. Final Action We are approving elements of the (1) December 13, 2012, SIP submittal for the State of Texas pertaining to the implementation, maintenance and enforcement of the 2008 ozone NAAQS, and; (2) December 7, 2012, SIP submittal pertaining to the implementation, maintenance and enforcement of the 2010 nitrogen dioxide NAAQS as outlined in our February 8, 2016, proposal. Specifically, EPA is approving the following infrastructure elements or portions thereof: 110(a)(2)(A), (B), (C), (D)(i) (portions pertaining to PSD for 2008 O3 and 2010 NO2 and portions pertaining to nonattainment and interference with maintenance for 2010 NO2 ), D(ii), (E), (F), (G), (H), (K), (L) and (M). IV. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, our role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); Does not contain any unfunded mandate or significantly or uniquely affect small governments, described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 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. 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 November 8, 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 section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, [[Page 62378]] Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements. Dated: August 31, 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. In Sec. 52.2270(e), the table titled ``EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP'' is amended by adding entries at the end for ``Infrastructure and Transport SIP Revisions for the 2010 Nitrogen Dioxide Standard'' and ``Infrastructure and Transport SIP Revisions for the 2008 Ozone Standard'' to read as follows. Sec. 52.2270 Identification of plan. * * * * * (e) * * * EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP ---------------------------------------------------------------------------------------------------------------- Applicable State Name of SIP provision geographic or submittal/ EPA approval date Comments nonattainment area effective date ---------------------------------------------------------------------------------------------------------------- * * * * * * * Infrastructure and Transport Statewide......... 12/7/2012 9/9/2016, [Insert Approval for SIP Revisions for the 2010 Federal Register 110(a)(2)(A), (B), Nitrogen Dioxide Standard. citation]. (C), (D)(i) (portions pertaining to nonattainment and interference with maintenance), D(ii), (E), (F), (G), (H), (K), (L) and (M). Infrastructure and Transport Statewide......... 12/13/2012 9/9/2016, [Insert Approval for SIP Revisions for the 2008 Federal Register 110(a)(2)(A), (B), Ozone Standard. citation]. (C), (D)(i) (portion pertaining to PSD), D(ii), (E), (F), (G), (H), (K), (L) and (M). ---------------------------------------------------------------------------------------------------------------- [FR Doc. 2016-21593 Filed 9-8-16; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Rules and Regulations 62375
Dated: August 24, 2016. PART 52—APPROVAL AND Subpart R—Kansas
Mark Hague, PROMULGATION OF
Regional Administrator, Region 7. IMPLEMENTATION PLANS ■ 2. In § 52.870(e) the table is amended
by adding entry (44) in numerical order
For the reasons stated in the to read as follows:
preamble, EPA is amending 40 CFR part ■ 1. The authority citation for part 52
52 as set forth below: continues to read as follows: § 52.870 Identification of plan.
Authority: 42 U.S.C. 7401 et seq. * * * * *
(e) * * *
EPA-APPROVED KANSAS NONREGULATORY SIP PROVISIONS
Name of nonregulatory SIP re- Applicable geographic or State submittal EPA approval date Explanation
vision nonattainment area date
* * * * * * *
(44) Section 110(a)(2) Infra- Statewide ............................... 11/16/15 9/9/16, [Insert Federal Reg- This action addresses the fol-
structure Requirements for ister citation]. lowing CAA elements:
the 2012 PM2.5 NAAQS. 110(a)(2)(A), (B), (C), (D),
(E), (F), (G), (H), (J), (K),
(L), and (M). 110(a)(2)(I) is
not applicable. [EPA–R07–
OAR–2016–0313; FRL– ]
[FR Doc. 2016–21474 Filed 9–8–16; 8:45 am] site. Although listed in the index, some submissions for the 2008 ozone and
BILLING CODE 6560–50–P information is not publicly available, 2010 NO2 NAAQS. These comments are
e.g., Confidential Business Information provided in the docket for today’s
or other information whose disclosure is rulemaking action. The commenters
ENVIRONMENTAL PROTECTION restricted by statute. Certain other contend that EPA cannot approve the
AGENCY material, such as copyrighted material, section 110(a)(2)(A) portion of Texas’s
is not placed on the Internet and will be 2008 ozone infrastructure SIP
40 CFR Part 52 publicly available only in hard copy submission because of Fifth Circuit
[EPA–R06–OAR–2012–0953; FRL–9950–77– form. Publicly available docket ‘‘binding precedent’’ purportedly
Region 6] materials are available either holding this portion of the submission
electronically through http:// must ‘‘prohibit upwind sources in Texas
Approval and Promulgation of Air www.regulations.gov or in hard copy at from significantly contributing to
Quality Implementation Plans; Texas; the EPA Region 6, 1445 Ross Avenue, nonattainment in downwind areas’’ in
Infrastructure or Requirements for the Suite 700, Dallas, Texas 75202–2733. Texas. Specifically, the commenters
2008 Ozone and 2010 Nitrogen Dioxide FOR FURTHER INFORMATION CONTACT: contend that there are five coal-fired
National Ambient Air Quality Sherry Fuerst, telephone (214) 665– power plants in East Texas that
Standards 6454, fuerst.sherry@epa.gov. ‘‘significantly contribute’’ to Dallas-Fort
SUPPLEMENTARY INFORMATION: Worth’s ozone nonattainment problem
AGENCY: Environmental Protection
Throughout this document ‘‘we,’’ ‘‘us,’’ and that the Texas i-SIP fails to address
Agency (EPA).
and ‘‘our’’ means the EPA. those emissions.
ACTION: Final rule. Response: We disagree with the
I. Background commenters that infrastructure SIPs
SUMMARY: The Environmental Protection
The background for this action is must include detailed attainment and
Agency (EPA) is approving elements of
discussed in detail in our February 8, maintenance plans for all areas of the
State Implementation Plan (SIP)
2016, proposal (81 FR 6483). In that state and must be disapproved if air
submissions from the State of Texas for
document we proposed to approve quality data and modeling show current
Ozone (O3) and Nitrogen Dioxide (NO2)
elements of SIP submittals from the and future nonattainment. We believe
National Ambient Air Quality Standards
State of Texas for the 2008 O3 and 2010 that section 110(a)(2)(A) is reasonably
(NAAQS). These submittals address
NO2 NAAQS. These submittals address interpreted to require states to submit
how the existing SIP provides for
how the existing SIP provides for SIPs that reflect the first step in their
implementation, maintenance, and
implementation, maintenance, and planning for attaining and maintaining
enforcement of the 2008 O3 and 2010
enforcement of the 2008 O3 and 2010 a new or revised NAAQS and that they
NO2 NAAQS (infrastructure SIPs or i-
NO2 i-SIPs. contain enforceable control measures
SIPs). These i-SIPs ensure that the
We received comments on the and demonstration that the state has the
State’s SIP is adequate to meet the
proposal submitted jointly from two available tools and authority to develop
State’s responsibilities under the
organizations. Our response to the and implement plans to attain and
Federal Clean Air Act (CAA).
comments are below. maintain the NAAQS.
DATES: This rule is effective on October The commenters suggest that EPA
ehiers on DSK5VPTVN1PROD with RULES
11, 2016. II. Response to Comments must disapprove the Texas ozone
ADDRESSES: EPA has established a Comment: We received one set of infrastructure SIP because of the fact
docket for this action under Docket ID comments—submitted jointly by the that areas in Texas have air quality data
No. EPA–R06–OAR–2012–0953. All Sierra Club and Downwinders at Risk— and modeling projections above or
documents in the docket are listed on on the February 8, 2016 proposal to forecasting above the standard, which
the http://www.regulations.gov Web approve certain elements of Texas’s SIP proves that the infrastructure SIP is
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![62376 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Rules and Regulations
inadequate. We disagree with the Congress again amended the CAA and extension) complied with the CAA.1
commenters because EPA does not added yet another layer of more The court’s lone citation to CAA section
believe that section 110(a)(2)(A) requires prescriptive planning requirements for 110(a)(2)(A) appears in a portion of the
detailed planning SIPs demonstrating each of the NAAQS, with the primary opinion titled, ‘‘Factual and Procedural
either attainment or maintenance for provisions for ozone in section 182. At Background,’’ following a brief
specific geographic areas of the state. that same time, Congress modified discussion of CAA section
The infrastructure SIP is triggered by section 110 to remove references to the 110(a)(2)(D)(i)(I). Read in full context, it
promulgation of the NAAQS, not section 110 SIP providing for is clear that the court’s mention of
designation. Moreover, infrastructure attainment, including removing pre- section 110(a)(2)(A) is merely a
SIPs are due three years following existing section 110(a)(2)(A) in its recitation of the regulatory background,
promulgation of the NAAQS. Thus, entirety and renumbering subparagraph not a holding:
during a significant portion of the (B) as section 110(a)(2)(A). Additionally, Under the CAA, states must adopt SIPs
period that a state has available for Congress replaced the clause ‘‘as may be specifying emission limitations applicable to
developing the infrastructure SIP, it necessary to insure attainment and pollution sources in order to maintain and
does not know what the designation maintenance [of the NAAQS]’’ with ‘‘as enforce each NAAQS. 42 U.S.C. 7410(a). SIPs
will be for individual areas of the state. may be necessary or appropriate to meet are submitted to the EPA, which may
In light of the structure of the CAA, our the applicable requirements of this approve, conditionally approve, or
long-standing position regarding chapter.’’ Thus, the CAA has disapprove the SIPs in full or in part. Id.
significantly evolved in the more than § 7410(k). Significantly, the CAA has a
infrastructure SIPs is that they are
40 years since it was originally enacted. provision that requires SIPs to contain
general planning SIPs to ensure that the provisions regulating emissions that
state has adequate resources and While at one time section 110 did
‘‘contribute significantly to nonattainment in,
authority to implement a NAAQS in provide the only detailed SIP planning or interfere with maintenance by, any other
general throughout the state and not provisions for states and specified that State with respect to any such national
detailed attainment and maintenance such plans must provide for attainment primary or secondary ambient air quality
plans for each individual area of the of the NAAQS, under the structure of standard.’’ Id. § 7410(a)(2)(D)(i)(I). In
state. the current CAA, section 110 is only the addition, as noted in the challenged final
initial stepping-stone in the planning action, the EPA has interpreted 42 U.S.C.
Our interpretation that infrastructure 7410 (a)(2)(A) as incorporating a similar
process for a specific NAAQS. More
SIPs are more general planning SIPs is requirement that an upwind area be
detailed, later-enacted provisions
consistent with the statute as prohibited from contributing significantly to
govern the substantive planning
understood in light of its history and nonattainment in a downwind area within
process, including planning for
structure. When Congress enacted the the same state. See 66 FR 26,917.2
attainment of the NAAQS.
CAA in 1970, it did not include For all of these reasons, EPA disagrees This lone mention of CAA section
provisions requiring states and the EPA with the commenters that we must 110(a)(2)(A) was likely because EPA had
to label areas as attainment or disapprove an infrastructure SIP invoked its interpretation of that section
nonattainment. Rather, states were revision if there are monitored or as one justification for why it was
required to include all areas of the state forecasted violations of the standard in reasonable to read the Act as permitting
in ‘‘air quality control regions’’ (AQCRs) the state and the section 110(a)(2)(A) the relevant deadline extension. While
and section 110 set forth the core revision does not have detailed plans for this passing mention of CAA section
substantive planning provisions for demonstrating how the state will bring 110(a)(2)(A) was dicta, the Fifth
these AQCRs. At that time, Congress that area into attainment. Rather we Circuit’s decision invalidating EPA’s
anticipated that states would be able to believe that the proper inquiry at this extension policy was not: Regardless of
address air pollution quickly pursuant juncture is whether the state has met the the merits of EPA’s proffered
to the very general planning provisions basic structural SIP requirements interpretation of CAA section
in section 110 and could bring all areas appropriate at the point in time we are 110(a)(2)(A), the court held at Chevron
in compliance with the NAAQS within acting upon the submittal. step one that the CAA did not authorize
five years. Moreover, at that time, Further, we disagree with the EPA to grant extensions of the
section 110(a)(2)(A)(i) specified that the commenters’ suggestion that the Texas attainment date.3
section 110 plan provide for SIP does not adequately address the The EPA interpretation mentioned
‘‘attainment’’ of the NAAQS and section CAA section 110(a)(2)(A) requirement off-hand in the Sierra Club opinion—
110(a)(2)(B) specified that the plan must for enforceable emission limits based on i.e., that section 110(a)(2)(A)
include ‘‘emission limitations, Sierra Club v. EPA, 314 F.3d 735 (5th incorporates a similar requirement for
schedules, and timetables for Cir. 2002). The commenters contend intrastate transport as section
compliance with such limitations and that the Fifth Circuit’s opinion in Sierra 110(a)(2)(D)(i)(I) does for interstate
such other measures as may be Club mandates disapproval by EPA of transport—is no longer the Agency’s
necessary to insure attainment and this i-SIP because Texas has areas interpretation and has not been so for
maintenance [of the NAAQS].’’ In 1977, measuring nonattainment of the NAAQS quite some time.4 EPA’s prior
Congress recognized that the existing at issue. The Fifth Circuit’s opinion is
structure was not sufficient and many not ‘‘binding precedent’’ on this point, 1 See Sierra Club v. EPA, 314 F.3d 735, 739–43
areas were still violating the NAAQS. At and mandates no such disapproval. (5th Cir. 2002). The case also addressed whether
that time, Congress for the first time To the extent the Fifth Circuit EPA had reasonably concluded that no additional
Reasonably Available Control Measures were
added provisions requiring states and discussed section 110(a)(2)(A) at all in required for the Beaumont area. See id. at 743–45.
EPA to identify whether areas of the Sierra Club, it was in dicta. The Fifth 2 Id. at 737.
ehiers on DSK5VPTVN1PROD with RULES
state were violating the NAAQS (i.e., Circuit’s Sierra Club opinion primarily 3 Id. at 740–41.
were nonattainment) and established concerned the distinct issue of whether 4 Likewise, the details of the Agency’s
specific planning requirements in EPA’s ‘‘extension of the statutory date’’ interpretation of CAA section 110(a)(2)(D)(i)(I) have
also changed, in part guided by U.S. Supreme Court
section 172 for areas not meeting the for Beaumont, Texas to attain the one- and D.C. Circuit case law evaluating EPA’s
NAAQS. In 1990, many areas still had hour ozone NAAQS (and approval of rulemakings under that provision. See, e.g., North
air quality not meeting the NAAQS and Texas’s attainment SIP based on that Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008)
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![62378 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Rules and Regulations
Nitrogen dioxide, Ozone, Reporting and PART 52—APPROVAL AND Provisions and Quasi-Regulatory
recordkeeping requirements. PROMULGATION OF Measures in the Texas SIP’’ is amended
Dated: August 31, 2016. IMPLEMENTATION PLANS by adding entries at the end for
‘‘Infrastructure and Transport SIP
Ron Curry, ■ 1. The authority citation for part 52 Revisions for the 2010 Nitrogen Dioxide
Regional Administrator, Region 6. continues to read as follows: Standard’’ and ‘‘Infrastructure and
40 CFR part 52 is amended as follows: Authority: 42 U.S.C. 7401 et seq. Transport SIP Revisions for the 2008
Ozone Standard’’ to read as follows.
Subpart SS—Texas
§ 52.2270 Identification of plan.
■ 2. In § 52.2270(e), the table titled * * * * *
‘‘EPA Approved Nonregulatory (e) * * *
EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP
State
Applicable geographic
Name of SIP provision submittal/ EPA approval date Comments
or nonattainment area effective date
* * * * * * *
Infrastructure and Trans- Statewide ..................... 12/7/2012 9/9/2016, [Insert Fed- Approval for 110(a)(2)(A), (B), (C), (D)(i) (por-
port SIP Revisions for eral Register cita- tions pertaining to nonattainment and inter-
the 2010 Nitrogen Di- tion]. ference with maintenance), D(ii), (E), (F), (G),
oxide Standard. (H), (K), (L) and (M).
Infrastructure and Trans- Statewide ..................... 12/13/2012 9/9/2016, [Insert Fed- Approval for 110(a)(2)(A), (B), (C), (D)(i) (por-
port SIP Revisions for eral Register cita- tion pertaining to PSD), D(ii), (E), (F), (G),
the 2008 Ozone tion]. (H), (K), (L) and (M).
Standard.
[FR Doc. 2016–21593 Filed 9–8–16; 8:45 am] ADDRESSES: The EPA has established a Environmental Protection (CT DEEP)
BILLING CODE 6560–50–P docket for this action under Docket ID submitted a formal revision to its State
No. EPA–R01–OAR–2015–0238. All Implementation Plan (SIP). This SIP
documents in the docket are listed on revision consists of eighty-nine source-
ENVIRONMENTAL PROTECTION the http://www.regulations.gov Web specific Trading Agreement and Orders
AGENCY site. Although listed in the index, some (TAOs) that allow twenty-four
information is not publicly available, individual stationary sources of nitrogen
40 CFR Part 52 e.g., CBI or other information whose oxide (NOX) emissions to create and/or
[EPA–R01–OAR–2015–0238; FRL–9951–94– disclosure is restricted by statute. trade NOX emission credits in order to
Region 1] Certain other material, such as ensure more effective compliance with
copyrighted material, is not placed on EPA SIP-approved state regulations for
Air Plan Approval; Connecticut; NOX the Internet and will be publicly reducing NOX emissions. We previously
Emission Trading Orders as Single available only in hard copy form. approved source-specific TAOs of the
Source SIP Revisions Publicly available docket materials are same kind issued by CT DEEP under
AGENCY: Environmental Protection available electronically through http:// this program for these same sources on
Agency (EPA). www.regulations.gov. September 28, 1999 (64 FR 52233),
ACTION: Final rule. FOR FURTHER INFORMATION CONTACT: March 23, 2001 (66 FR 16135), and
Donald Dahl, Air Permits, Toxics, and September 9, 2013 (78 FR 54962). The
SUMMARY: The Environmental Protection Indoor Programs Unit, Office of November 15, 2011 SIP submittal also
Agency (EPA) is approving a State Ecosystem Protection, U.S. includes Consent Order 8029A issued to
Implementation Plan (SIP) revision Environmental Protection Agency, EPA Hamilton Sundstrand which addresses
submitted by the State of Connecticut. New England Regional Office, 5 Post Volatile Organic Compound (VOC)
This revision continues to allow Office Square, Suite 100, (OEP05–2), emissions.
facilities to create and/or use emission Boston, MA 02109–3912, phone number On June 15, 2016 (81 FR 38999) EPA
credits using NOX Emission Trading and (617) 918–1657, fax number (617) 918– published a notice of proposed
Agreement Orders (TAOs) to comply 0657, email Dahl.Donald@epa.gov. rulemaking (NPR) for the State of
with the NOX emission limits required Connecticut’s 2011 SIP revision
SUPPLEMENTARY INFORMATION:
by Regulations of Connecticut State submittal, proposing approval of the
Throughout this document whenever
Agencies (RCSA) section 22a-174–22 TAOs, except for Consent Order 8029A.
(Control of Nitrogen Oxides). The ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
The NPR also proposed approval of the
intended effect of this action is to EPA.
revised TAO 8110A issued to Yale
approve the individual trading orders to Table of Contents University. This TAO was originally
allow facilities to determine the most submitted as part of a July 1, 2004 SIP
ehiers on DSK5VPTVN1PROD with RULES
I. Summary of SIP Revision
cost-effective way to comply with the II. Final Action revision from Connecticut, and was
state regulation. This action is being III. Statutory and Executive Order Reviews modified by CT DEEP on May 29, 2015.
taken in accordance with the Clean Air The rationale supporting EPA’s
Act (CAA). I. Summary of SIP Revision proposed rulemaking action is
DATES: This final rule is effective on On November 15, 2011, the explained in the published NPR. The
October 11, 2016. Connecticut Department of Energy and NPR is available in the docket for this
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Document Created: 2018-02-09 13:15:23
Document Modified: 2018-02-09 13:15:23
| 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 October 11, 2016. | |
| Contact | Sherry Fuerst, telephone (214) 665- 6454, [email protected] | |
| FR Citation | 81 FR 62375 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone and Reporting and Recordkeeping Requirements |
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