[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

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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]
 BILLING CODE 6560-50-P