[Federal Register Volume 83, Number 192 (Wednesday, October 3, 2018)]
[Proposed Rules]
[Pages 49894-49897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21448]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2008-0408; FRL-9984-28--Region 6]
Approval and Promulgation of Implementation Plans; Texas;
Interstate Transport Requirements for the 1997 Ozone National Ambient
Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is proposing to approve portions
of two Texas State Implementation Plan (SIP) submittals that pertain to
the good neighbor and interstate transport requirements of the CAA with
respect to the 1997 ozone National Ambient Air Quality Standards
(NAAQS). The good neighbor provision requires each state, in its SIP,
to prohibit emissions that will significantly contribute to
nonattainment, or interfere with maintenance, of a NAAQS in other
states. In this action, EPA is proposing
[[Page 49895]]
to approve the Texas SIP submittals as having met the requirements of
the good neighbor provision for the 1997 ozone NAAQS in accordance with
section 110 of the CAA.
DATES: Written comments must be received on or before November 2, 2018.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2008-0408, 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 the 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 wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
A. The 1997 8-Hour Ozone NAAQS and Interstate Transport of Air
Pollution
Under section 109 of the CAA, we establish NAAQS to protect human
health and public welfare. In 1997, we established new 8-hour primary
and secondary ozone NAAQS of 0.08 parts per million (62 FR 38856, July
18, 1997).\1\ Ground level ozone is formed when nitrogen oxides
(NOX) and volatile organic compounds (VOCs) react in the
presence of sunlight.
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\1\ In 2008, we revised the 8-hour ozone NAAQS to 0.075 ppm (73
FR 16436, March 27, 2008) and in 2015 we revised the 8-hour ozone
NAAQS to 0.070 ppm (80 FR 65292, October 26, 2015). This proposal
pertains to the 1997 8-hour ozone NAAQS only.
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Section 110(a)(1) of the CAA requires states to submit, within
three years after promulgation of a new or revised standard, SIPs
meeting the applicable ``infrastructure'' elements set forth in Section
110(a)(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 the infrastructure SIP submittals
from Texas for the 1997 8-hour ozone NAAQS. These sub-elements require
that each SIP for a new or revised NAAQS 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.
The EPA has addressed the interstate transport requirements of CAA
section 110(a)(2)(D)(i)(I) with respect to the 1997 8-hour ozone NAAQS
in several past regulatory actions. Most relevant to this action, we
promulgated the Clean Air Interstate Rule (CAIR) in 2005 to address the
requirements of the good neighbor provision for the 1997 fine
particulate PM2.5 and 1997 ozone NAAQS (May 12, 2005, 70 FR
25172). While Texas was included in CAIR with respect to the 1997
PM2.5 NAAQS, we determined that Texas would not
significantly contribute to nonattainment or interfere with maintenance
of the 1997 ozone NAAQS in other states. However, CAIR was remanded 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. The court determined that CAIR
was ``fundamentally flawed'' and ordered EPA to ``redo its analysis
from the ground up.'' 531 F.3d at 929.
In 2011 we promulgated the Cross-State Air Pollution Rule (CSAPR)
to address the remand of CAIR.\2\ CSAPR addressed the state and federal
obligations under CAA section 110(a)(2)(D)(i)(I) to prohibit air
pollution contributing significantly to nonattainment in, or
interfering with maintenance by, any other state with regard to the
1997 8-hour ozone NAAQS and the 1997 annual PM2.5 NAAQS, as
well as the 2006 24-hour PM2.5 NAAQS. To address Texas'
transport obligation under CAA section 110(a)(2)(D)(i)(I) with regard
to the 1997 8-hour ozone NAAQS, CSAPR established Federal
Implementation Plan (FIP) requirements for affected electric generating
units (EGUs) in Texas, including an emissions budget that applied to
the EGUs' collective ozone-season emissions of NOX. The
CSAPR budgets were to be implemented in two phases, with phase 1 to be
implemented beginning with the 2012 ozone season and phase 2 to be
implemented beginning with the 2014 ozone season.\3\ Due to litigation,
phase 1 of CSAPR was not implemented until 2015 and phase 2 was set to
be implemented beginning in 2017. (81 FR 13275, March 14, 2016).
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\2\ Federal Implementation Plans; Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and
52.39 and 40 CFR part 97).
\3\ However, the implementation of the emissions budgets was
stayed by the D.C. Circuit in December 2011 pending further
litigation. The D.C. Circuit initially issued a decision in EME
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012) (EME
Homer City I), vacating CSAPR, but in April 2014, the Supreme Court
issued a opinion reversing the D.C. Circuit and remanding the case
for further proceedings. EPA v. EME Homer City Generation, L.P., 134
S. Ct. 1584, 1600-01 (2014). After the Supreme Court issued its
decision, the D.C. Circuit granted a motion from EPA to lift the
stay and toll the compliance timeframes by three years. See
Respondents' Motion to Lift the Stay Entered on December 30, 2011,
Document #1499505, EME Homer City Generation, L.P. v. EPA, No. 11-
1302 (D.C. Cir. filed June 26, 2014); Order, Document #1518738, EME
Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. issued
Oct. 23, 2014).
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In subsequent litigation (See generally EME Homer City Generation,
L.P. v. EPA, 795 F.3d 118 (D.C. Cir. Ct. App. 2015) (``EME Homer City
II'' herein)), the court reviewed our ability to regulate interstate
air pollution pursuant to the good neighbor provision. The court in EME
Homer City II declared the CSAPR phase 2 ozone season emission budgets
of 11 states invalid, including Texas, holding that those budgets over-
control with respect to the downwind air quality problems to which
those states were linked for the 1997 ozone NAAQS.\4\
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\4\ EME Homer City II, 795 F.3d at 129-30, 138 (D.C. Cir. Ct.
App. 2015).
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In our response to Homer City II, we addressed Texas's ozone-season
emissions budget in the regulation,
[[Page 49896]]
CSAPR Update, which was promulgated in 2016 to address the requirements
of the good neighbor provision for the 2008 ozone NAAQS.\5\ In the
original 2011 CSAPR, EPA noted that the reductions for 11 states,
including Texas, may not be sufficient to fully eliminate all
significant contribution to nonattainment or interference with
maintenance for certain downwind areas with respect to the 1997 ozone
NAAQS because EPA's analysis projected continued nonattainment and
maintenance problems at downwind receptors to which these upwind states
were linked after implementation of the CSAPR trading programs.
Specifically, exceedances were expected in Baton Rouge, Louisiana;
Houston, Texas; and Allegan, Michigan according to the remedy case
modeling conducted for the original CSAPR rule. The CSAPR Update used
2017 as the analytic year for the air quality modeling to determine
nonattainment and maintenance receptors and states linked to those
receptors. We evaluated this 2017 modeling to determine whether
additional emission reductions would be needed in these 11 states,
including Texas, to address the states' full good neighbor obligation
for the 1997 ozone NAAQS.
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\5\ CSAPR Update Rule for the 2008 ozone NAAQS, 81 FR 74504,
October 26, 2016.
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Despite our conclusion in the 2011 CSAPR that the 1997 ozone
transport problems to which Texas was linked were not fully resolved,
the court concluded in EME Homer City II that the ozone season emission
budget finalized for Texas may result in over-control as to the ozone
air quality problems to which the state was linked. 795 F.3d at 129-30.
In response to this determination, we removed Texas's phase 2 ozone
season budget as a constraint in the 2017 air quality modeling
conducted for the CSAPR Update. EPA concluded that, even in the absence
of this constraint, the 2017 air quality modeling shows that the
predicted average design values (DVs) \6\ used to identify
nonattainment receptors and the maximum DVs used to identify
maintenance receptors would both be below the level of the 1997 ozone
NAAQS for the downwind receptors of concern to which Texas was linked
in the original CSAPR rulemaking with respect the 1997 ozone NAAQS.
Accordingly, we found that Texas emissions would no longer contribute
significantly to nonattainment in, or interfere with maintenance by,
any other state with respect to the 1997 ozone NAAQS. (See generally,
81 FR 74504). Consistent with this finding, we removed the FIP
requirements associated with the 1997 ozone NAAQS, and sources in Texas
were no longer subject to the phase 2 ozone season budget calculated to
address that standard. See 40 CFR 52.38(b)(2)(ii) (relieving sources in
Texas of the obligation to comply with the remanded phase 2 ozone
season emission budgets after 2016).\7\
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\6\ DVs are used to determine whether a NAAQS is being met.
\7\ EPA notes that, because Texas was linked to downwind air
quality problems with respect to the 2008 ozone NAAQS in its
analysis, the EPA promulgated a new ozone season NOX
emission budget to address that standard at 40 CFR 97.810(a).
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B. Texas SIP Submittals Pertaining to the 1997 8-Hour Ozone NAAQS and
Interstate Transport of Air Pollution
Texas made the following SIP submittals to address CAA requirements
to prohibit emissions which will significantly contribute to
nonattainment or interfere with maintenance of the 1997 ozone NAAQS in
other states: (1) An April 4, 2008 submittal stating that the state had
addressed any potential CAA section 110(a)(2) infrastructure issues
associated with the 1997 ozone NAAQS, including the first two sub-
elements for interstate transport in (CAA section 110(a)(2)(D)(i)(I))
and (2) a separate, but similar May 1, 2008 submittal which discussed
how the first two sub-elements of the good neighbor provision were
addressed with respect to the 1997 ozone standards. For the reasons
described below, this action proposes to approve the state's two SIP
submittals with respect to the state's conclusions regarding the first
two sub-elements of the good neighbor provisions at CAA section
110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS. See Docket No. EPA-R06-
OAR-2008-0408 in www.regulations.gov.
II. The EPA's Evaluation
Each of the above-referenced Texas SIP submittals relied on (1)
EPA's CAIR modeling document, ``Technical Support Document for the
Final Clean Air Interstate Rule--Air Quality Modeling, March 2005'' \8\
and (2) emission controls found in the Texas SIP to support a
conclusion that the Texas SIP had adequate provisions to prohibit
emissions which will significantly contribute to nonattainment or
interfere with maintenance of the 1997 ozone NAAQS in any other state.
The SIP submittals rely on the conclusion in the CAIR rulemaking that
Texas would not significantly contribute to nonattainment or interfere
with maintenance of the 1997 ozone NAAQS in downwind states. While CAIR
was still in place at the time the state submitted its SIPs, as
discussed above, the rule was remanded by the D.C. Circuit in 2008
because the court found it was ``fundamentally flawed'' and must be
replaced ``from the ground up.'' North Carolina, 531 F.3d at 929-30.
Accordingly, we cannot approve the state's SIP submittals based on the
CAIR analysis. However, more recent information provides support for
our proposed approval of the conclusions in the SIP submittals that the
state will not significantly contribute to nonattainment or interfere
with maintenance of the 1997 ozone NAAQS in any other state.
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\8\ Document EPA-HQ-OAR-2003-0053-2151 in regulations.gov.
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The updated air quality modeling conducted for the original CSAPR
rulemaking projected the effect of emissions on ambient air quality
monitors (receptors). The modeling projected that in 2012: (1) A
receptor located in East Baton Rouge Parish, Louisiana (monitor ID
220330003) would have difficulty attaining and maintaining the 1997 8-
hour ozone NAAQS; and, (2) A receptor located in Allegan County,
Michigan (monitor ID 260050003) would have difficulty maintaining the
1997 8-hour ozone NAAQS (76 FR 48208, 48236, August 8, 2011). The
modeling also showed that Texas emissions were projected to contribute
more than the threshold amount of ozone pollution necessary to be
considered ``linked'' to these receptors for the 1997 8-hour ozone
NAAQS (76 FR 48208, 48246, August 8, 2011). These were the only ozone
receptors with projected air quality problems to which Texas was found
to be linked.
In CSAPR we used air quality projections for the year 2012, which
was also the intended start year for implementation of the CSAPR Phase
1 EGU emission budgets, to identify receptors projected to have air
quality problems. The CSAPR final rule record also contained air
quality projections for 2014, which was the intended start year for
implementation of the CSAPR Phase 2 EGU emission budgets. The 2014
modeling results projected that before considering the emissions
reductions anticipated from implementation of CSAPR: (1) The East Baton
Parish receptor would have an average 8-hour ozone DV of 84.1 parts per
billion (ppb) and a maximum DV of 87.7 ppb; and, (2) The Allegan
County, Michigan
[[Page 49897]]
would have maximum DV of 83.6 ppb.\9\ We used a value of 85 ppb to
determine whether a particular ozone receptor should be identified as
having air quality problems that may trigger transport obligations in
upwind states with regard to the 1997 8-hour ozone NAAQS (76 FR 48208,
48236).
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\9\ See projected 2014 base case average and maximum DVs for
these monitors at pages B-14 and B-16 of the June 2011 Air Quality
Modeling Final Rule Technical Support Document for CSAPR, Document
ID No. EPA-HQ-OAR-2009-0491-4140, available in regulations.gov.
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The 2014 modeling results show that the Allegan County, Michigan
monitor which Texas was linked to in the 2012 modeling was no longer
projected to have air quality problems sufficient to trigger transport
obligations with regard to the 1997 8-hour ozone NAAQS. Thus, Texas was
no longer projected to interfere with maintenance of the 1997 ozone
NAAQS at the Allegan County receptor in 2014. However, the 2014
modeling results continued to project that the East Baton Parish
receptor would have problems maintaining the 1997 ozone NAAQS.
As discussed above, in response to the remand of Texas's CSAPR
phase 2 ozone season budget by the D.C. Circuit in EME Homer City II,
EPA reviewed the 2017 air quality modeling conducted for the CSAPR
Update. EPA concluded that, even in the absence of Texas's CSAPR
budget, both the Baton Rouge and Allegan receptors would have average
and maximum DVs below the level of the 1997 ozone NAAQS for the
downwind receptors of concern to which Texas was linked in the original
CSAPR rulemaking with respect the 1997 ozone NAAQS. Accordingly, EPA
found that Texas emissions would no longer contribute significantly to
nonattainment in, or interfere with maintenance by, any other state
with respect to the 1997 ozone NAAQS at either receptor or in any other
state. (81 FR 74525-26). This conclusion is based on EPA's most recent
modeling analysis and is supported by the fact that the Baton Rouge
area has monitored attainment of the 1997 ozone standard since 2008.
III. Proposed Action
We are proposing to approve the portions of the April 4, 2008 and
May 1, 2008 Texas SIP submittals as they pertain to the requirements of
CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS. We
propose to find that the conclusion in the state's SIP submittals is
consistent with EPA's conclusion regarding the Texas's good neighbor
obligation, that emissions from Texas will not significantly contribute
to nonattainment or interfere with maintenance of the 1997 ozone NAAQS
in any other state.
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, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve 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);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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 proposed 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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Ozone.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 26, 2018.
Anne Idsal,
Regional Administrator, Region 6.
[FR Doc. 2018-21448 Filed 10-2-18; 8:45 am]
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