[Federal Register Volume 81, Number 69 (Monday, April 11, 2016)]
[Proposed Rules]
[Pages 21290-21295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08275]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2012-0985; FRL-9944-84-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: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to 
disapprove the portion of a Texas State

[[Page 21291]]

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 Standards (NAAQS) in other states. Disapproval will establish 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: Comments must be received on or before May 11, 2016.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2012-0985, at http://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Carl Young, 214-665-6645, 
[email protected]. For the full EPA public comment policy, information 
about CBI or multimedia submissions, and general guidance on making 
effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Carl Young, 214-665-6645, 
[email protected]. To inspect the hard copy materials, please schedule 
an appointment with Mr. Young or Mr. Bill Deese at 214-665-7253.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means the EPA.

I. Background

    On March 12, 2008, the EPA revised the levels of the primary and 
secondary 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 
ppm (73 FR 16436). The CAA requires states to submit, within three 
years after promulgation of a new or revised standard, SIPs meeting the 
applicable ``infrastructure'' elements of sections 110(a)(1) and (2). 
One of these applicable infrastructure elements, CAA section 
110(a)(2)(D)(i), requires SIPs to contain ``good neighbor'' provisions 
to prohibit certain adverse air quality effects on neighboring states 
due to interstate transport of pollution. There are four sub-elements 
within CAA section 110(a)(2)(D)(i). This action reviews how the first 
two sub-elements of the good neighbor provisions, at CAA section 
110(a)(2)(D)(i)(I) were addressed in an infrastructure SIP submission 
from Texas for the 2008 ozone NAAQS. These sub-elements require that 
each SIP for a new or revised standard 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.
    Ozone is not emitted directly into the air, but is created by 
chemical reactions between oxides of nitrogen (NOX) and 
volatile organic compounds (VOCs) in the presence of sunlight. 
Emissions from electric utilities and industrial facilities, motor 
vehicles, gasoline vapors, and chemical solvents are some of the major 
sources of NOX and VOCs. Because ground-level ozone 
formation increases with temperature and sunlight, ozone levels are 
generally higher during the summer. Increased temperature also 
increases emissions of VOCs and can indirectly increase NOX 
emissions.\1\
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    \1\ 80 FR 75706, 75711.
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    The EPA has addressed the interstate transport requirements of CAA 
section 110(a)(2)(D)(i)(I) with respect to ozone in several past 
regulatory actions. The NOX SIP Call, promulgated in 1998, 
addressed the good neighbor provision for the 1979 1-hour ozone NAAQS 
and the 1997 8-hour ozone NAAQS.\2\ The rule required 22 states and the 
District of Columbia to amend their SIPs and limit NOX 
emissions that contribute to ozone nonattainment. The Clean Air 
Interstate Rule (CAIR), promulgated in 2005, addressed both the 1997 
PM2.5 and ozone standards under the good neighbor provision 
and required SIP revisions in 28 states and the District of Columbia to 
limit NOX and SO2 emissions that contribute to 
nonattainment of those standards.\3\ CAIR was remanded to the EPA by 
the D.C. Circuit in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 
2008), modified on reh'g, 550 F.3d 1176. In response to the remand of 
CAIR, the EPA promulgated the Cross State Air Pollution Rule (CSAPR) on 
July 6, 2011, to address CAA section 110(a)(2)(D)(i)(I) in the eastern 
\4\ portion of the United States.\5\ With respect to ozone, CSAPR 
limited ozone season nitrogen oxide (NOX) emissions from 
electric generating units (EGUs). CSAPR addressed interstate transport 
as to the 1997 8-hour ozone NAAQS, the 1997 annual fine particulate 
matter (PM2.5) NAAQS and the 2006 24-hour PM2.5 
NAAQS, but did not address the 2008 8-hour ozone standard.
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    \2\ NOX SIP Call, 63 FR 57371 (October 27, 1998).
    \3\ Clean Air Interstate Rule (CAIR), 70 FR 25172 (May 12, 
2005).
    \4\ When we discuss the eastern United States we mean the 
contiguous U.S. states excluding the 11 western states of Arizona, 
California, Colorado, Idaho, Montana, New Mexico, Nevada, Oregon, 
Utah, Washington, and Wyoming.
    \5\ Cross-State Air Pollution Rule (CSAPR), 76 FR 48208 (August 
8, 2011).
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II. Texas SIP Revision Addressing Interstate Transport of Air Pollution 
for the 2008 Ozone NAAQS

    On December 13, 2012, Texas submitted a SIP revision addressing 
certain CAA infrastructure requirements for the 2008 ozone NAAQS. This 
action concerns the portion of the December 13, 2012, SIP submittal 
pertaining to the CAA section 110(a)(2)(D)(i)(I) requirement to address 
the interstate transport of air pollution which will significantly 
contribute to nonattainment or interference with maintenance of the 
2008 ozone NAAQS in other states. 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).
    In the portion of its SIP submittal addressing interstate 
transport, Texas provided an analysis of monitoring data, wind 
patterns, emissions data and

[[Page 21292]]

emissions controls. Texas notes that, at the time of the SIP submittal, 
it had not yet implemented control measures in its two areas designated 
nonattainment for the 2008 ozone NAAQS because the nonattainment SIP 
was not due until 2015. Texas cited numerous control measures that were 
implemented to address prior ozone NAAQS. Texas also includes 1990-2010 
design value data for the areas designated nonattainment for the 2008 
ozone NAAQS in Texas and in nearby nonattainment areas and notes that 
design values have generally decreased since 2000. Texas focuses on 
wind patterns and the distance between in-state ozone nonattainment 
areas (Dallas-Fort Worth and the Houston-Galveston-Brazoria) and the 
closest designated nonattainment areas (Baton Rouge, Louisiana, and 
Memphis, Tennessee) in other states, and monitored data in between 
these areas. Texas concluded that it is difficult to determine how much 
ozone at the out-of-state nonattainment areas is due to transport of 
ozone and how much is due to other sources of ozone precursors.
    Texas's analysis includes 2010 8-hour ozone design values from 
monitors in states located in the EPA Region 6.\6\ Texas summarized 
NOX emission trends for Texas EGUs from 1995-2011 and 
discusses how federal rulemakings, such as CAIR and the CSAPR affected 
EGU emissions. Lastly, Texas described additional non-EGU control 
measures and SIPs that reduce NOX and VOC emissions within 
the state.
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    \6\ These states are Arkansas, Louisiana, Oklahoma, and New 
Mexico.
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    Texas concluded in its analysis that (based on monitoring data) due 
to (1) decreases in ozone design values, and (2) existing control 
measures, emissions from sources within the state do not contribute 
significantly to nonattainment or interfere with maintenance of the 
2008 ozone NAAQS in any other state. A copy of the Texas SIP submittal 
may be accessed online at http://www.regulations.gov, Docket No. EPA-
R06-OAR-2012-0985.

III. The EPA's Evaluation

    As we noted above, the Texas SIP submittal included an analysis of 
monitoring data, wind patterns, emissions data and emissions controls. 
The information provided in the Texas analysis is helpful in assessing 
past air quality and we agree that ozone concentrations have decreased 
since 2000. However, we disagree with Texas's conclusion concerning 
interstate transport for the 2008 ozone NAAQS.
    Texas limits 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). This approach is 
incomplete for two reasons. First, transported emissions may cause an 
area to measure exceedances of the standard even if that area is not 
formally designated nonattainment by the EPA. However, Texas only 
evaluated its potential impact on the nearest designated nonattainment 
areas in other states without considering potential exceedances in 
other areas not designated nonattainment. Thus, Texas did not fully 
evaluate whether emissions from the state significantly contribute to 
nonattainment in other states.
    Second, in remanding CAIR to the EPA in the North Carolina 
decision, the D.C. Circuit explained that the regulating authority must 
give the ``interfere with maintenance'' clause of section 
110(a)(2)(D)(i)(I) ``independent significance'' 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.\7\ Texas does not give the 
``interfere with maintenance'' clause of 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.
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    \7\ 531 F.3d at 910-11 (holding that the EPA must give 
``independent significance'' to each prong of CAA section 
110(a)(2)(D)(i)(I)).
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    Furthermore, in addition to being incomplete, the EPA has recently 
shared new technical information with states to facilitate efforts to 
address interstate transport requirements for the 2008 ozone NAAQS 
which contradicts the conclusions of the Texas analysis. The EPA 
developed this technical information following the same approach used 
to evaluate interstate transport in CSAPR in order to support the 
recently proposed Cross-State Air Pollution Rule Update for the 2008 
Ozone NAAQS, 80 FR 75706 (December 3, 2015) (``CSAPR Update Rule''). In 
CSAPR, we used detailed air quality analyses to determine whether an 
eastern state's contribution to downwind air quality problems was at or 
above specific thresholds. If a state's contribution did not exceed the 
specified air quality screening threshold, the state was not considered 
``linked'' to identified downwind nonattainment and maintenance 
receptors and was therefore not considered to significantly contribute 
to nonattainment or interfere with maintenance of the standard in those 
downwind areas. If a state exceeded that threshold, the state's 
emissions were further evaluated, taking into account both air quality 
and cost considerations, to determine what, if any, emissions 
reductions might be necessary. For the reasons stated below, we believe 
it is appropriate to use the same approach we used in CSAPR to 
establish an air quality screening threshold for the evaluation of 
interstate transport requirements for the 2008 ozone standard.
    In CSAPR, we proposed an air quality screening threshold of one 
percent of the applicable NAAQS and requested comment on whether one 
percent was appropriate. The EPA evaluated the comments received and 
ultimately determined that one percent was an appropriately low 
threshold because there were important, even if relatively small, 
contributions to identified nonattainment and maintenance receptors 
from multiple upwind states. In response to commenters who advocated a 
higher or lower threshold than one percent, we compiled the 
contribution modeling results for CSAPR to analyze the impact of 
different possible thresholds for the eastern United States. The EPA's 
analysis showed that the one percent threshold captures a high 
percentage of the total pollution transport affecting downwind states, 
while the use of higher thresholds would exclude increasingly larger 
percentages of total transport. For example, at a five percent 
threshold, the majority of interstate pollution transport affecting 
downwind receptors would be excluded. In addition, the EPA determined 
that it was important to use a relatively lower one percent threshold 
because there are adverse health impacts associated with ambient ozone 
even at low levels. The EPA also determined that a lower threshold such 
as 0.5 percent would result in relatively modest increases in the 
overall percentages of fine particulate matter and ozone pollution 
transport captured relative to the amounts captured at the one-percent 
level. The EPA determined that a ``0.5 percent threshold could lead to 
emission reduction responsibilities in additional states that 
individually have a very small impact on those receptors--an indicator 
that emission controls in those states are likely to have a smaller air 
quality impact at the downwind receptor. We are not convinced that

[[Page 21293]]

selecting a threshold below one percent is necessary or desirable.''
    In the final CSAPR, we determined that one percent was a reasonable 
choice considering the combined downwind impact of multiple upwind 
states in the eastern United States, the health effects of low levels 
of fine particulate matter and ozone pollution, and the EPA's previous 
use of a one percent threshold in CAIR. The EPA used a single ``bright 
line'' air quality threshold equal to one percent of the 1997 8-hour 
ozone standard, or 0.08 ppm. The projected contribution from each state 
was averaged over multiple days with projected high modeled ozone, and 
then compared to the one percent threshold. We concluded that this 
approach for setting and applying the air quality threshold for ozone 
was appropriate because it provided a robust metric, was consistent 
with the approach for fine particulate matter used in CSAPR, and 
because it took into account, and would be applicable to, any future 
ozone standards below 0.08 ppm. The EPA has subsequently proposed to 
use the same threshold for purposes of evaluating interstate transport 
with respect to the 2008 ozone standard in the CSAPR Update Rule.
    In 2015 we (1) provided notice of data availability (NODA) for the 
EPA's updated ozone transport modeling for the 2008 ozone NAAQS for 
public review and comment (80 FR 46271, August 4, 2015), and (2) 
proposed the CSAPR Update Rule to address interstate transport with 
respect to the 2008 ozone NAAQS (80 FR 75706, December 3, 2015). The 
CSAPR Update Rule would further restrict ozone season NOX 
emissions from EGUs in 23 states, including Texas, beginning in the 
2017 ozone season. Our proposal also addresses a 2015 D.C. Circuit 
court decision that largely upheld CSAPR, but that, among other things, 
remanded without vacatur the NOX ozone-season emission 
budgets for EGUs in Texas and 10 other states that were established in 
CSAPR to address the 1997 ozone NAAQS.\8\
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    \8\ EME Homer City v. EPA, [795 F.3d 118 (D.C. Circuit 2015)] 
(July 28, 2015).
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    The modeling data released in this NODA was also used to support 
the proposed CSAPR Update Rule. The moderate area attainment date for 
the 2008 ozone standard is July 11, 2018. In order to demonstrate 
attainment by this attainment deadline, states will use 2015 through 
2017 ambient ozone data. Therefore, the EPA proposed that 2017 is an 
appropriate future year to model for the purpose of examining 
interstate transport for the 2008 ozone NAAQS. The EPA used 
photochemical air quality modeling to project ozone concentrations at 
air quality monitoring sites to 2017 and estimated state-by-state ozone 
contributions to those 2017 concentrations. This modeling used the 
Comprehensive Air Quality Model with Extensions (CAMx version 6.11) to 
model the 2011 base year, and the 2017 future base case emissions 
scenarios to identify projected nonattainment and maintenance sites 
with respect to the 2008 ozone NAAQS in 2017. The EPA used nationwide 
state-level ozone source apportionment modeling (CAMx Ozone Source 
Apportionment Technology/Anthropogenic Precursor Culpability Analysis 
technique) to quantify the contribution of 2017 base case 
NOX and VOC emissions from all sources in each state to the 
2017 projected receptors. The air quality model runs were performed for 
a modeling domain that covers the 48 contiguous United States and 
adjacent portions of Canada and Mexico. The NODA and the supporting 
technical support documents have been included in the docket for this 
SIP action.
    The modeling data released in the NODA and the CSAPR Update Rule 
are the most up-to-date information the EPA has developed to inform our 
analysis of upwind state linkages to downwind air quality problems. As 
discussed in the CSAPR Update Rule proposal, the air quality modeling 
(1) identified locations in the U.S. where the EPA expects 
nonattainment or maintenance problems in 2017 for the 2008 ozone NAAQS 
(i.e., nonattainment or maintenance receptors), and (2) quantified the 
projected contributions of emissions from upwind states to downwind 
ozone concentrations at those receptors in 2017 (80 FR 75706, 75720-30, 
December 3, 2015). Consistent with CSAPR, the EPA proposed to use a 
threshold of 1 percent of the 2008 ozone NAAQS (0.75 parts per billion) 
to identify linkages between upwind states and downwind nonattainment 
or maintenance receptors. The EPA proposed that eastern states with 
contributions to a specific receptor that meet or exceed this screening 
threshold are considered ``linked'' to that receptor, and were analyzed 
further to quantify available emissions reductions necessary to address 
interstate transport to these receptors.
    Table 1 is a summary of the air quality modeling results for Texas 
from Table V.D-1 of the proposed CSAPR Update Rule.\9\ As the state's 
downwind contribution to proposed nonattainment and maintenance 
receptors exceeded the threshold, the analysis for the proposal 
concluded that Texas emissions significantly contribute to 
nonattainment and interfere with maintenance of the 2008 ozone NAAQS in 
other states. Texas emissions were linked to eastern nonattainment 
receptors in Sheboygan, Wisconsin, and to maintenance receptors in 
Maryland, Michigan, New Jersey, New York, Ohio and Pennsylvania (Tables 
V.D-2 and V.D-3, 80 FR 75706, 75728-30).\10\
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    \9\ 80 FR 75706, 75727-28.
    \10\ Tables V.D-2 and V.D-3, 80 FR 75706, 75728-30.

              Table 1--Texas' Largest Contribution to Downwind Nonattainment and Maintenance Areas
                                          [Proposed CSAPR update rule]
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                                                                                    Downwind         Downwind
                                                 Largest           Largest       nonattainment     maintenance
      2008 Ozone NAAQS         Air quality      downwind          downwind         receptors        receptors
                                threshold    contribution to   contribution to    located  in       located in
                                              nonattainment      maintenance         states           states
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0.075 ppm (75 parts per       0.75 ppb....  2.44 ppb........  2.95 ppb........  Wisconsin......  Maryland,
 billion or ppb).                                                                                 Michigan, New
                                                                                                  Jersey, New
                                                                                                  York, Ohio and
                                                                                                  Pennsylvania.
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    Additionally, Texas emissions were also linked to two projected 
nonattainment receptors in the Denver, Colorado area, with Texas's 
largest downwind contribution to those nonattainment receptors being 
1.58 parts per billion (ppb).\11\ Texas has not provided a 
demonstration that its SIP is adequate to address interstate transport 
to the Denver, Colorado receptors. The EPA believes contribution from 
an individual state equal to or above 1 percent of the NAAQS could be 
considered significant where the

[[Page 21294]]

collective contribution of emissions from one or more upwind states is 
responsible for a considerable portion of the downwind air quality 
problem regardless of where the receptor is geographically located.\12\ 
In this case, Texas has more than a 2% contribution to receptors in 
Denver, which we consider significant.
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    \11\ See document EPA-HQ-OAR-2015-0500-0007 in http://www.regulations.gov.
    \12\ 76 FR 48238 (Aug. 8, 2011); 80 FR 75714 (Dec. 3, 2015).
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    As discussed previously, our modeling and analysis released in our 
NODA and proposed CSAPR Update Rule is the most up-to-date information 
for assessing interstate transport of air pollution for the 2008 ozone 
NAAQS. Analysis of wind patterns, emissions data, and ambient 
monitoring data as provided in the Texas SIP submittal does not 
quantify the magnitude of impact from Texas emissions to downwind 
states. For example, wind patterns can only give an indication of the 
possibility of transport; emissions data and ambient monitoring data 
can indicate the potential for air quality problems. The Texas analysis 
only discusses general ozone season wind patterns as being from the 
south to the east and the limited potential for transport to Memphis 
and Baton Rouge. However, the general wind patterns are generally 
consistent with transport to the impacted receptors in Wisconsin and 
Colorado, and there are observed winds from the west and northwest that 
could, on some days, transport pollutants towards other areas, such as 
Baton Rouge. Downward trends in (1) emissions and (2) observed ozone 
concentrations can indicate progress towards reducing impact, but do 
not provide information on the magnitude of the remaining impact or the 
potential benefit from additional emission reductions. Air quality 
modeling, however, brings together emissions data, atmospheric 
chemistry and meteorological information that simulate the transport 
and fate of pollutants and estimate concentrations of pollutants 
(including ozone) across the modeling domain. Air quality modeling can 
also provide estimates of upwind impacts by estimating the contribution 
of a state's emissions to downwind pollutant concentrations. Our 
modeling and analysis provided the magnitude of impact and show that 
Texas emissions significantly contribute to ozone concentrations in 
areas of nonattainment and interfere with maintenance of the 2008 ozone 
NAAQS in other states.
    Texas provided a great deal of information documenting significant 
emission reductions that have been made throughout the state and 
particularly in the eastern half of the state between 1990 and 2010. 
These include reductions from controls on EGUs in East Texas and 
controls on a variety of NOX sources in the 1-hour ozone and 
8-hour ozone nonattainment areas of Houston-Galveston-Brazoria, 
Beaumont-Port Arthur and Dallas-Fort Worth. These controls have 
resulted in significant reductions in ozone levels in Texas and 
undoubtedly have reduced the amount of transported pollution to other 
states. However, these reductions were largely put in place to address 
the 1-hour ozone NAAQS, and as a result, their compliance dates, and 
therefore the emission reductions achieved through these measures, 
predate and were therefore accounted for in the EPA's modeling baseline 
of 2011 for the 2008 ozone NAAQS. Accordingly, the most recent 
technical analysis available to the EPA contradicts Texas's conclusion 
that the state's SIP contains adequate provisions to address interstate 
transport as to the 2008 ozone standard. Furthermore, Texas did not 
demonstrate how these rules and data for a less stringent standard 
provide sufficient controls on emissions to address interstate 
transport for the 2008 ozone NAAQS. Despite the substantial reductions 
in Texas, we have subsequently published information and proposed an 
update to CSAPR that addresses the 2008 ozone NAAQS that includes 
Texas's cited rules and demonstrates Texas still has an interstate 
impact on other states.
    Among the emissions reductions cited by Texas in its SIP, Texas 
cites its participation in CAIR as a control measure that results in 
control of NOX emissions within the state. Texas notes that 
under CAIR, Texas EGUs were not included in the ozone season 
NOX emissions trading program, but were subject to the 
annual NOX emissions trading program. The CAIR ozone season 
NOX emissions trading program was intended to address 
interstate transport of air pollution for the 1997 ozone NAAQS. The 
CAIR annual NOX emissions trading program, along with the 
annual sulfur dioxide (SO2) trading program, was intended to 
address interstate transport of air pollution for the 1997 fine 
particulate matter (PM2.5) NAAQS.
    Texas also noted that: (1) A 2008 court decision (the North 
Carolina decision) directed the EPA replace CAIR, but kept it in place 
temporarily; (2) the EPA replaced CAIR with CSAPR; (3) CSAPR included 
Texas EGU budgets for ozone-season NOX emissions, annual 
NOX emissions and annual SO2 NOX 
emissions to address interstate transport of air pollution for the 1997 
ozone NAAQS, the 1997 annual PM2.5 NAAQS and the 2006 24-
hour PM2.5 NAAQS; and (4) in August 2012, the U.S. Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit) issued a 
decision vacating CSAPR and requiring continued implementation of CAIR 
until the EPA develops a replacement. Therefore, Texas concluded that 
CAIR remains a federally enforceable requirement.
    Subsequent to Texas's submission of its SIP, On April 29, 2014, the 
U.S. Supreme Court reversed that D.C. Circuit decision vacating CSAPR 
and remanded the case to the D.C. Circuit for further proceedings. On 
October 23, 2014, the D.C. Circuit granted our motion to lift the 
judicial stay on CSAPR and delay compliance deadlines by three years. 
Consistent with the Court's order we issued an interim final rule 
amending CSAPR so that compliance could begin in an orderly manner on 
January 1, 2015 (79 FR 71663, December 3, 2014), replacing CAIR. On 
July 28, 2015, the D.C. Circuit issued its decision on the issues 
raised on remand from the Supreme Court. The court denied all of 
petitioners' facial challenges to CSAPR, but remanded several emissions 
budgets to the EPA for reconsideration.\13\ A final rule making the 
revised CSAPR implementation schedule permanent was issued on March 14, 
2016.\14\
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    \13\ As to Texas in particular, the court remanded without 
vacatur the state's phase 2 SO2 annual emissions budget 
and the phase 2 ozone-season NOX emissions budget for 
reconsideration. The court concluded that these budgets resulted in 
over-control of sources in Texas with respect to the air quality 
concerns to which Texas was linked in our air quality modeling. As 
stated above, our CSAPR update proposal for the 2008 ozone NAAQS 
responds to the court remand of the NOX ozone-season 
emission budgets for EGUs in Texas that were established for the 
1997 ozone NAAQS.
    \14\ 81 FR 13275 (March 14, 2016)
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    Accordingly, CAIR implementation ended in 2014 and CSAPR 
implementation began in 2015. States and the EPA are no longer 
implementing the CAIR trading programs. Thus, it is no longer 
appropriate for states to rely on CAIR to satisfy emission reduction 
obligations. Moreover, as indicated above, Texas's SIP addresses 
interstate transport obligations for a different and more stringent 
standard (the 2008 ozone NAAQS) and it is not sufficient to merely cite 
evidence of compliance with older programs such as CAIR or measures 
implemented for prior ozone NAAQS as a means for satisfying

[[Page 21295]]

interstate transport obligations for the 2008 ozone NAAQS.
    The EPA is proposing to disapprove the Texas SIP for CAA section 
110(a)(2)(D)(i)(I) requirements. As explained above, the Texas analysis 
does not adequately demonstrate that the SIP contains provisions 
prohibiting emissions that will significantly contribute to 
nonattainment or interfere with maintenance of the 2008 ozone NAAQS. 
Moreover, the EPA's most recent modeling indicates that emissions from 
Texas are projected to significantly contribute to downwind 
nonattainment and maintenance receptors in other states.\15\
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    \15\ Texas and others interested parties have provided comments 
on both the NODA and proposed CSAPR Update Rule. See Docket No. EPA-
HQ-OAR-2015-0500 at http://www.regulations.gov. We will consider 
these comments in final rulemaking to CSAPR Update Rule. Even absent 
this data, Texas's SIP failed to adequately address the requirements 
of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone 
NAAQS.
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IV. Proposed Action

    We propose to disapprove the portion of a December 13, 2012 Texas 
SIP submittal pertaining to CAA section 110(a)(2)(D)(i)(I), the 
interstate transport of air pollution which will significantly 
contribute to nonattainment or interfere with maintenance of the 2008 
ozone NAAQS in other states. The EPA requests comment on our evaluation 
of Texas's interstate transport SIP.
    Pursuant to CAA section 110(c)(1), disapproval will establish 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).

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This 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 proposed 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 proposes to disapprove a SIP submission as not meeting 
the CAA.

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 proposes to disapprove a SIP 
submission as not meeting the CAA.

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 proposes to disapprove a 
SIP submission as not meeting the CAA.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Nitrogen dioxide, 
Volatile organic compounds.

    Dated: April 4, 2016.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2016-08275 Filed 4-8-16; 8:45 am]
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