[Federal Register Volume 81, Number 175 (Friday, September 9, 2016)]
[Rules and Regulations]
[Pages 62375-62378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21593]


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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.

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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, [email protected].

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:
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    \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\
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    \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\
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    \3\ Id. at 740-41.
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    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\
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    \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.
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    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).
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    \8\ See, e.g., 76 FR 48208, 48236-37 (Aug. 8, 2011).
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    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
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                                     Applicable           State
     Name of SIP provision          geographic or      submittal/     EPA approval date          Comments
                                 nonattainment area  effective date
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                                                  * * * * * * *
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).
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[FR Doc. 2016-21593 Filed 9-8-16; 8:45 am]
 BILLING CODE 6560-50-P