[Federal Register Volume 81, Number 195 (Friday, October 7, 2016)]
[Rules and Regulations]
[Pages 69685-69687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24115]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2012-0953; FRL-9952-76-Region 6]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Infrastructure Requirements for Consultation With Government 
Officials, Public Notification and Prevention of Significant 
Deterioration and Visibility Protection for the 2008 Ozone and 2010 
Nitrogen Dioxide National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
portions of State Implementation Plan (SIP) submittals from the State 
of Texas pertaining to Clean Air Act (CAA) section 110(a)(2)(J): 
Consultation with Government Officials, Public Notification, and 
Prevention of Significant Deterioration and Visibility Protection for 
the 2008 Ozone (O3) and 2010 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 SIP is adequate to meet the State's responsibilities 
under the CAA. This direct final rule and the accompanying proposal 
will complete the rulemaking process started in our February 8, 2016, 
proposal, approve Section 110(a)(2)(J), and confirm that the SIP has 
adequate infrastructure to implement, maintain and enforce this section 
of the CAA with regard to the 2008 O3 and 2010 
NO2 NAAQS.

DATES: This rule is effective on December 6, 2016 without further 
notice, unless the EPA receives relevant adverse comment by November 7, 
2016. If EPA receives such comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2012-0953, 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. 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. 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 Sherry Fuerst, (214) 665-
6454, [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: Sherry Fuerst, 214-665-6454, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Ms. Fuerst or Bill Deese at 214-665-7253.

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

I. Background

    On March 12, 2008, EPA revised the levels of the ozone (hereafter 
the 2008 O3) NAAQS (73 FR 16436, March 27, 2008). Likewise, 
on January 22, 2010, we revised the nitrogen dioxide NAAQS (hereafter 
the 2010 NO2) (75 FR 6474, February 9, 2010). 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). We issued guidance addressing 
the i-SIP elements for NAAQS.\1\ One of these applicable infrastructure 
elements, CAA section 110(a)(2)(J), requires the SIP must meet the 
following three CAA requirements: (1) Section 121, relating to 
interagency consultation regarding certain CAA requirements; (2) 
section 127, relating to public notification of NAAQS exceedances and 
related issues; and (3) prevention of significant deterioration of air 
quality and visibility protection.
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    \1\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013.
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    The Texas Commission on Environmental Quality submitted i-SIP 
demonstrations of how the existing Texas SIP meets the requirements of 
the 2010 NO2 NAAQS on December 7, 2012, and for the 2008 
O3 NAAQS on

[[Page 69686]]

December 13, 2012. A detailed discussion of our evaluation of how the 
Texas submittals meet 110(a)(2)(J) is provided in our February 8, 2016 
proposal (81 FR 6483 at 6486)) and in the Technical Support Document 
(TSD) for that action. The TSD can be accessed through 
www.regulations.gov (Document EPA-R06-OAR-2012-0953-002). We proposed 
to approve elements of the i-SIP submittals from the State of Texas for 
the O3 and NO2 NAAQS but for element (J) and 
subsequently, we took final action to approve all but element (J) on 
September 9, 2016 (81 FR 62375). However, through inadvertent errors, 
we neglected to complete the rulemaking process for CAA section 
110(a)(2)(J) for both O3 and NO2 NAAQS in the 
proposal and final documents.

II. EPA's Evaluation

    In the proposal, we discussed how the requirements of section 
110(a)(2)(J) for both NO2 and O3 NAAQS were met. 
However, we neglected to explicitly propose approval of the specific 
provisions of Section 110(a)(2)(J) anywhere in the Preamble and 
definitely not in our ``Proposed Action'' section at 81 FR 6487. The 
public had the opportunity to review and comment on our evaluation of 
this provision in the Preamble but we never formally proposed this 
provision for approval. As such, we could not finalize approval of 
section 110(a)(2)(J) for the 2008 O3 and 2010 NO2 
NAAQS at 81 FR 62375.
    Please see EPA's proposed approval at 81 FR 6483 for our technical 
evaluation. The evaluation of all subsections of CAA section 
110(a)(2)(J) can be found at 81 FR 6483, page 6486. The TSD for 81 FR 
6483 is available in the docket, provides additional details to support 
our determination that this element meets the federal requirements and 
is fully approvable. We incorporate our previous evaluation of this 
element into this action. EPA did receive and respond to comments on 
the proposed action, but none of the comments received were specific to 
element (J) of CAA section 110(a)(2). See 81 FR 62375 September 9, 
2016. Our evaluation and preliminary determination of approvability did 
not change as a result of these comments.
    This final action is merely correcting our previous error in 
failing to propose approval of this element on the basis of our 
previous technical evaluation and preliminary determination. EPA has 
not changed its rationale. We therefore are approving the portions of 
the December 13, 2012, and December 7, 2012, i-SIP submissions from 
Texas as meeting the infrastructure element (J) for the 2008 ozone 
NAAQS and the 2010 NO2 NAAQS. We continue to assert that Texas' 
existing SIP provides for implementation, maintenance, and enforcement 
of the 2008 O3 and 2010 NO2 NAAQS.

III. Final Action

    We are approving portions of the following SIP submittals 
pertaining to CAA section 110(a)(2)(J): (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.
    EPA is publishing this rule without prior proposal because we view 
this as a non-controversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if relevant adverse 
comments are received. This rule will be effective on December 6, 2016 
without further notice unless we receive relevant adverse comment by 
November 7, 2016. If we receive relevant adverse comments, we will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. We will address all public 
comments in a subsequent final rule based on the proposed rule. We will 
not institute a second comment period on this action. Any parties 
interested in commenting must do so now. Please note that if we receive 
relevant adverse comment on an amendment, paragraph, or section of this 
rule and if that provision may be severed from the remainder of the 
rule, we may adopt as final those provisions of the rule that are not 
the subject of an adverse comment.

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, EPA's 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, as 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 rule 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

[[Page 69687]]

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 December 6, 2016. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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).)
    Samuel Coleman was designated the Acting Regional Administrator on 
September 30, 2016, through the order of succession outlined in 
Regional Order R6-1110.1, a copy of which is included in the docket for 
this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone.

    Dated: September 30, 2016.
Samuel Coleman,
Acting 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 revising the entries 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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                                                             State
     Name of SIP provision      Applicable  geographic    submittal/    EPA approval date         Comments
                                or  nonattainment area  effective date
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                                                  * * * * * * *
Infrastructure and Transport    Statewide.............       12/7/2012  9/9/2016, 81 FR    Approval for
 SIP Revisions for the 2010                                              62375.             110(a)(2)(A), (B),
 Nitrogen Dioxide Standard.                                                                 (C), (D)(i)
                                                                                            (portions pertaining
                                                                                            to nonattainment and
                                                                                            interference with
                                                                                            maintenance), D(ii),
                                                                                            (E), (F), (G), (H),
                                                                                            (K), (L) and (M).
                                                                                            Approval for
                                                                                            110(a)(2)(J) on 10/7/
                                                                                            2016, [Insert
                                                                                            Federal Register
                                                                                            citation].
Infrastructure and Transport    Statewide.............      12/13/2012  9/9/2016, 81 FR    Approval for
 SIP Revisions for the 2008                                              62375.             110(a)(2)(A), (B),
 Ozone Standard.                                                                            (C), (D)(i) (portion
                                                                                            pertaining to PSD),
                                                                                            D(ii), (E), (F),
                                                                                            (G), (H), (K), (L)
                                                                                            and (M). Approval
                                                                                            for 110(a)(2)(J) 10/
                                                                                            7/2016, [Insert
                                                                                            Federal Register
                                                                                            citation].
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[FR Doc. 2016-24115 Filed 10-6-16; 8:45 am]
 BILLING CODE 6560-50-P