[Federal Register Volume 82, Number 173 (Friday, September 8, 2017)]
[Rules and Regulations]
[Pages 42454-42457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18950]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0550; FRL-9966-98-Region 6]


Approval and Promulgation of Implementation Plans; Texas; El Paso 
Carbon Monoxide Limited Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving the required second 
carbon monoxide (CO) maintenance plan as a revision to the Texas State 
Implementation Plan (SIP). The El Paso, Texas CO maintenance area (El 
Paso Area) has been demonstrating consistent air quality monitoring at 
or below 85% of the CO National Ambient Air Quality Standard (NAAQS or 
standard). Because of this, the State of Texas, through its designee, 
submitted the required second maintenance plan for the El Paso Area as 
a Limited Maintenance Plan (LMP).

DATES: This final rule is effective on October 10, 2017.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2016-0550. 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://

[[Page 42455]]

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: Jeff Riley, 214-665-8542, 
[email protected].

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

I. Background

    The factual background for this action is discussed in detail in 
our March 21, 2017 direct final rule and proposal (82 FR 14442, 82 FR 
14499). Originally, we issued a direct final rule to approve the 
required second CO maintenance plan for the El Paso, Texas CO 
maintenance area as a revision to the Texas SIP.
    However, the direct final rule and proposal stated that if any 
relevant adverse comments were received by the end of the public 
comment period on April 20, 2017, the direct final rule would be 
withdrawn and we would respond to the comments in a subsequent final 
action. Relevant adverse comments were received during the comment 
period, and the direct final rule was withdrawn on May 22, 2017 (82 FR 
23148). The background information found in the direct final is still 
relevant and our March 21, 2017 proposal provides the basis for this 
final action.
    We received comments on our proposal from one commenter. Our 
response to the comments are below.

II. Response to Comments

    Comment 1: The Commenter states that ``(a)dditional CO monitors are 
necessary to effectively monitor compliance'' of the CO NAAQS in the El 
Paso maintenance area, and asserts that the current El Paso CO 
monitoring network operated by TCEQ is inadequate in terms of the 
number, siting, type, and scale of representativeness of the monitors 
that comprise the network.
    Response 1: EPA disagrees with the assertion that the current El 
Paso CO monitoring network is inadequate to effectively monitor 
compliance with the CO NAAQS. Each state-submitted annual monitoring 
network plan is evaluated by EPA pursuant to 40 CFR part 58.10 
requirements to determine if the criteria for implementation and 
maintenance of the area's air quality surveillance system have been 
met. Annual monitoring plans for the El Paso area have been reviewed 
and ultimately approved by EPA for the full extent of the timeframe 
noted by the Commenter. In recognition of significantly declining CO 
concentrations in the El Paso Area since 2000, Texas has gradually 
reduced and consolidated the El Paso CO monitoring network to three 
sites in 2015 with approval from the EPA. The reductions in the number 
of active network monitors specifically during the 2012-2014 timeframe 
were conducted in consultation with EPA, and were done in accordance 
with 40 CFR part 58.10 requirements. We have included EPA's responses 
to the State's annual monitoring network plans for the years 2012-2017 
in the docket for this rulemaking.
    We further note that 40 CFR 58.10(a)(1) requires that beginning 
July 1, 2007, the State shall adopt and submit to the Regional 
Administrator an annual monitoring network plan, and that this annual 
monitoring network plan must be made available for public inspection 
for at least 30 days prior to submission to EPA. This public inspection 
period of annual monitoring network plans has been provided by the 
State for all submittals since July 1, 2007, and no adverse comments 
have been received pertaining to the El Paso Area CO monitoring network 
in this time.
    In the September 21, 2016 limited maintenance plan SIP submission, 
the State provided data showing monitored CO values from 2006-2015, 
reflecting a 2015 8-hour CO design value of 2.8 ppm. Thus, the design 
value represented for the 8-hour standard was less than 31% of the CO 
NAAQS. Only 1 CO monitor is currently required for El Paso, the 
Chamizal monitor (AQS #48-141-0044) required for NCore (National Core 
monitoring network) monitoring. This is a neighborhood-scale, high CO 
concentration site for the city and it recorded a 2.3 ppm 8-hour CO 
design value for 2016, similar to the 2.4 ppm 8-hour CO design value 
for 2016 recorded at the nearby Ascarate Park monitor to the southeast 
of Chamizal. The 2.3 ppm and 2.4 ppm 8-hour CO design values are 
significantly below the 8-hour CO NAAQS of 9.4 ppm, representing 
ambient concentrations 24% and 26%, respectively, of the 8-hour CO 
NAAQS. Both of these monitors are located in the CO maintenance area, 
and we note that these design values also represent a continued 
downward trend of CO ambient concentrations beyond the 2015 design 
value provided in the State's September 21, 2016 submittal.
    The Commenter also states that the El Paso CO LMP should include a 
commitment to collocate at least one near-road nitrogen dioxide 
(NO2) monitor with a CO monitor as a contingency should a 
triggering event take place during the maintenance period. The basis of 
this argument is twofold: EPA network design criteria under 40 CFR part 
58, Appendix D require at least one CO monitor to operate collocated 
with one required near-road NO2 monitor in Core Based 
Statistical Areas with a population of 1,000,000 or more persons. 
Further, the Commenter refers to Texas Department of State Health 
Services (TDSHS) estimates that the El Paso population will be 
approaching 1,000,000 as early as 2020. The Commenter provided no 
specific citation for this TDSHS data.
    The 40 CFR part 58, Appendix D standard for population data is 
considered to be U.S. Census Bureau data. Based on U.S. Census data, El 
Paso will most likely not reach 1,000,000 in population by 2028. The 
current population growth estimate rate per year for El Paso is 5,811/
year based upon U.S. Census estimates from 2010-2016.\1\ The 2010 
estimate was 807,108 and the 2016 estimate was 841,971. Using this 
growth estimate rate, the U.S. Census data indicates that the 
population of El Paso would reach around 912,000 in 2028, and would 
reach 1,000,000 by roughly 2043. So, pursuant to EPA 40 CFR part 58 
requirements, a near road NO2/CO monitoring site will most 
likely not be required in El Paso until well after 2028 due to this 
slower growth estimation rate. At this time and based on the data 
provided, EPA does not believe such a contingency would provide 
meaningful air quality benefit to the El Paso area.
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    \1\ https://www.census.gov/data/tables/2016/demo/popest/total-metro-and-micro-statistical-areas.html.
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    Comment 2: The Commenter argues that statements made by the current 
EPA Administration on March 15, 2017 are an indication that the Tier 3 
Motor Vehicle Emission and Fuel Standards may be repealed or weakened, 
and therefore the state's reliance upon these standards as Federal 
control measures is a tenuous assumption.
    Response 2: We disagree with the Commenter. The EPA 
Administration's March 15, 2017 statements do not pertain to the Tier 3 
Motor Vehicle Emission and Fuel Standards. See 79 FR 23414 (April 28, 
2014). Rather, these statements concern reopening a mid-term evaluation 
of the National Program for greenhouse gas (GHG) emissions and fuel 
economy standards for light-duty vehicles, developed jointly by EPA and 
the National Highway Traffic Safety Administration (NHTSA). The Phase 2 
standards of this program, applying to model years 2017-2025, were 
promulgated in the Final Rule for 2017 and Later Model Year Light-Duty 
Vehicle Greenhouse Gas Emissions and

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Corporate Average Fuel Economy Standards. 77 FR 62624 (October 15, 
2012). This rulemaking is separate, distinct, and independent of the 
action we are addressing here. The October 15, 2012 rulemaking is 
therefore beyond the scope of this rulemaking action and we refer the 
Commenter to the October 15, 2012 action for further detail.
    To EPA's knowledge, no such statements have been made concerning 
implementation of the Tier 3 Motor Vehicle Emission and Fuel Standards, 
and therefore the state's reliance upon these standards as valid 
Federal control measures is appropriate for this SIP action. At this 
time, we see no legal requirement for the state to revise the LMP with 
an explicit commitment to reevaluate its reliance thereof in the 
speculative chance that a Federal measure could be weakened or removed 
some time in the future. We note that in any case of Federal measures 
being repealed or weakened, pursuant to 42 U.S.C. 7410(k)(5), the EPA 
has Clean Air Act authority to require a state to revise an approved 
SIP if it finds that it has become substantially inadequate to maintain 
the NAAQS. Moreover, CAA section 175A provides the EPA discretion to 
require the state to submit a revised SIP should the area fail to 
maintain the NAAQS.
    Comment 3: The Commenter claims that the El Paso CO LMP lacks an 
adequate contingency plan because the State has not identified an 
appropriate trigger, and ``has not identified measures that will be 
promptly adopted nor . . . identified a schedule or procedure to 
implement additional control measures.''
    Response 3: The State's September 21, 2016 LMP submission 
identifies violation of the CO NAAQS as a contingency trigger. EPA's 
interpretation of section 175A of the CAA, as it pertains to LMP's for 
CO, is contained in the October 6, 1995, national guidance memorandum 
titled ``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, Office of Air Quality 
Planning and Standards.\2\ While the Commenter correctly notes that 
under EPA's guidance, ``states are encouraged to choose a pre-violation 
action level as a trigger'', the guidance explicitly states that a 
violation of the NAAQS is an acceptable trigger.\3\ Further, the State 
has identified potential contingency measures, as well as a schedule 
and procedure for timely implementation in the event of a CO NAAQS 
violation.
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    \2\ A copy of the October 6, 1995 Guidance Memorandum is 
included in the docket for this rulemaking.
    \3\ EPA's September 4, 1992, John Calcagni policy memorandum 
entitled ``Procedures for Processing Requests to Redesignate Areas 
to Attainment'' provides further support of this interpretation.
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    EPA disagrees with the Commenter's contention that the maintenance 
plan's implementation schedules for contingency measures fail to 
satisfy the ``prompt response'' requirement in CAA section 175A(d). 
This section of the CAA requires that a maintenance plan include such 
contingency provisions as the Administrator deems necessary to assure 
that the state ``will promptly correct any violation'' of the NAAQS 
that occurs after redesignation of an area. Thus, Congress gave EPA 
discretion to evaluate and determine the contingency measures that EPA 
``deems necessary'' to assure that the state will ``promptly correct'' 
any subsequent violation.
    Section 175A does not establish any deadlines for implementation of 
contingency measures after redesignation to attainment. It also 
provides far more latitude than does Section 172(c)(9), which applies 
to a different set of contingency measures applicable to nonattainment 
areas. Section 172(c)(9) contingency measures must ``take effect . . . 
without further action by the State or [EPA].'' By contrast, section 
175A(d) allows EPA to take into account the need of a state to assess, 
adopt, and implement contingency measures if and when a violation 
occurs after an area's redesignation to attainment. As noted by the 
U.S. Court of Appeals for the Sixth Circuit in Greenbaum v. EPA, 370 
F.3d 527, 540 (6th Cir. 2004), that was cited by the Commenter, the EPA 
``has been granted broad discretion by Congress in determining what is 
`necessary to assure' prompt correction'' under section 175A, and ``no 
pre-determined schedule for adoption of the measures is necessary in 
each specific case.'' In making this determination, EPA accounts for 
the time that is required for states to analyze data and address the 
causes and appropriate means of remedying a violation. EPA also 
considers the time required to adopt and implement appropriate measures 
in assessing what ``promptly'' means in this context.
    In the case of the El Paso Area, EPA believes that the contingency 
measures set forth in the submittal, combined with the State's 
commitment to implement contingency measures as expeditiously as 
practicable but no later than 18 months of a trigger, provide assurance 
that the State will ``promptly'' correct a future NAAQS CO violation. 
Given the uncertainty regarding the nature of the contingency measures 
required to address a violation, a State may need up to 24 months to 
enact new statutes; develop new or modified regulations and complete 
notice and comment rulemaking; or take actions authorized by current 
state law that require the purchase and installation of equipment 
(e.g., diesel retrofits) or the development and implementation of new 
programs. In addition, EPA has previously approved implementation of 
contingency measures within 24 months of a violation to comply with the 
requirements of Section 175A in several instances. See, e.g., 81 FR 
76891 (November 4, 2016), 80 FR 61775 (October 14, 2015), 79 FR 67120 
(November 12, 2014), 78 FR 44494 (July 24, 2013), 77 FR 34819 (June 12, 
2012), 76 FR 59512 (Sept. 27, 2011), 75 FR 2091 (January 14, 2010). EPA 
also notes that the Commenter did not provide any rationale for 
concluding that a suggested 120-day implementation period of control 
strategies is necessary to satisfy section 175A.

III. Final Action

    We are approving the CO LMP for the El Paso Area submitted by the 
TCEQ on September 21, 2016 as a revision to the Texas SIP because the 
State adequately demonstrates that the El Paso Area will maintain the 
CO NAAQS and meet all the criteria of a LMP through the second 10-year 
maintenance period.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
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.);

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     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 Clean Air Act; 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 7, 2017. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: August 29, 2017.
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 second table entitled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas 
SIP'' is amended by adding a new entry at the end of the table for 
``Second 10-year Carbon Monoxide maintenance plan (limited maintenance 
plan) for the El Paso CO area'' 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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                                                  * * * * * * *
Second 10-year Carbon Monoxide     El Paso, TX........       9/21/2016  9/8/2017, [Insert    ...................
 maintenance plan (limited                                               Federal Register
 maintenance plan) for the El                                            citation].
 Paso CO area.
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[FR Doc. 2017-18950 Filed 9-7-17; 8:45 am]
 BILLING CODE 6560-50-P