[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Proposed Rules]
[Pages 43757-43764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18048]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-HQ-OAR-2014-0464; FRL-9998-54-OAR]
Error Correction of the Area Designations for the 2010 1-Hour
Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard
(NAAQS) in Freestone and Anderson Counties, Rusk and Panola Counties,
and Titus County in Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
correct an error in the designations for three areas in Texas:
Freestone and Anderson Counties, Rusk and Panola Counties, and Titus
County. On December 13, 2016, portions of Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County were designated as
nonattainment for the 2010 primary sulfur dioxide (SO2)
National Ambient Air Quality Standard (NAAQS). Under our Clean Air Act
(CAA or Act) authority to correct errors, the EPA is proposing that we
erred in not giving greater weight to Texas' preference to characterize
air quality through monitoring, and steps undertaken by Texas to begin
monitoring in these three areas, when considering all available
information; in relying on available air quality analyses in making the
initial designations that the EPA recognizes included certain
limitations; or a combination of these two issues. Therefore, to
correct these errors, the EPA is proposing that the previously
designated nonattainment areas in Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County in Texas each be revised to be
designated as unclassifiable.
DATES: Comments must be received on or before September 23, 2019.
Please refer to SUPPLEMENTARY INFORMATION for additional information on
the comment period.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2014-0464, at http://www.regulations.gov. 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 our public docket. Do not submit electronically any
information you consider to be Confidential
[[Page 43758]]
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, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: For further information concerning
this action, please contact Corey Mocka, U.S. EPA, Office of Air
Quality Planning and Standards, Air Quality Policy Division, Mail Code
C539-01, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709; by
telephone at (919) 541-5142 or by email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
Table of Contents
I. What is the purpose of this action?
A. CAA Legal Authority
B. Background on the Designations of Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County in Texas
C. Purpose of This Action
II. Instructions for Submitting Public Comments and Internet Website
for Rulemaking Information
A. Invitation To Comment
B. What should I consider as I prepare my comments for the EPA?
C. Where can I find additional information for this rulemaking?
III. Environmental Justice Concerns
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Government
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. What is the purpose of this action?
A. CAA Legal Authority
Section 110(k)(6) of the CAA, 42 U.S.C. 7410(k)(6), as amended in
1990, provides: ``Whenever the Administrator determines that the
Administrator's action approving, disapproving, or promulgating any
plan or plan revision (or part thereof), area designation,
redesignation, classification or reclassification was in error, the
Administrator may in the same manner as the approval, disapproval, or
promulgation revise such action as appropriate without requiring any
further submission from the state. Such determination and the basis
thereof shall be provided to the state and the public.'' (Emphasis
added.)
We interpret this provision to authorize the agency to make
corrections to a promulgated area designation when it is shown to our
satisfaction (or we discover) that (1) we clearly erred by failing to
consider or by inappropriately considering information made available
to the EPA at the time of the promulgation, or the information made
available at the time of promulgation is subsequently demonstrated to
have been clearly inadequate, and (2) other information persuasively
supports a change in the action. See, e.g., 57 FR 56762, 56763
(November 30, 1992) (correcting certain designations, boundaries, or
classifications for a variety of NAAQS promulgated in agency actions
shortly after the 1990 Clean Air Act amendments).
B. Background on the Designations of Freestone and Anderson Counties,
Rusk and Panola Counties, and Titus County in Texas
On June 2, 2010, the EPA Administrator signed a notice of final
rulemaking that revised the primary SO2 NAAQS (75 FR 35520
(June 22, 2010)) after review of the existing primary SO2
standards promulgated on April 30, 1971 (36 FR 8187). The EPA
established the revised primary SO2 NAAQS at 75 parts per
billion (ppb), which is attained when the 3-year average of the annual
99th percentile of daily maximum 1-hour average concentrations does not
exceed 75 ppb. 40 CFR 50.17(a)-(b).
The process for designating areas following promulgation of a new
or revised NAAQS is contained in the CAA section 107(d) (42 U.S.C.
7407(d)). After promulgation of a new or revised NAAQS, each governor
or tribal leader has an opportunity to recommend air quality
designations, including the appropriate boundaries for nonattainment
areas, to the EPA (42 U.S.C. 7407(d)(1)(A)). The EPA considers these
recommendations when fulfilling its duty to promulgate the formal area
designations and boundaries for the new or revised NAAQS. By no later
than 120 days prior to promulgating designations, the EPA is required
to notify states, territories, and tribes, as appropriate, of any
intended modifications to an area designation or boundary
recommendation that the EPA deems necessary (42 U.S.C. 7407(d)(1)(B)).
After invoking a 1-year extension of the deadlines to designate
areas, as provided for in section 107(d)(1)(B) of the Act, the EPA
published an initial round of SO2 designations for certain
areas of the country on August 5, 2013 (referred to as ``Round 1'') (78
FR 47191). Following the initial designations, three lawsuits were
filed against the EPA in different U.S. District Courts, alleging the
agency had failed to perform a nondiscretionary duty under the CAA by
not designating all portions of the country by the June 2, 2013,
statutory deadline. The state of Texas was a plaintiff or plaintiff-
intervenor in two of those cases. In one of those cases (Sierra Club
and NRDC v. McCarthy, No. 13-cv-3953), the U.S. District Court for the
Northern District of California on March 2, 2015, entered an
enforceable order for the EPA to complete the area designations by
three specific deadlines according to the court-ordered schedule. The
court order required the EPA to designate areas containing sources
meeting certain criteria no later than July 2, 2016. The three Texas
areas the EPA designated that are the subject of this proposed action
contained sources meeting those criteria.
To meet the first court-ordered deadline for the next set of
SO2 designations, known as ``Round 2,'' the final action
designating 61 additional areas was signed on June 30, 2016, and a
supplemental final action including the designations for portions of
Freestone and Anderson Counties, Rusk and Panola Counties, and Titus
County, was signed on November 29, 2016 \1\
[[Page 43759]]
(``Round 2 Supplement'') and published at 81 FR 45039 (July 12, 2016)
and 81 FR 89870 (December 13, 2016), respectively. To meet the second
court-ordered deadline, all remaining undesignated areas, except those
where a state has installed and begun timely operating a new
SO2 monitoring network meeting the EPA specifications
referenced in the EPA's SO2 Data Requirements Rule, were
designated on December 21, 2017, with a supplemental amendment on March
28, 2018 (referred to as ``Round 3'') and published at 83 FR 1098
(January 9, 2018) and 83 FR 14597 (April 14, 2018), respectively.\2\
Pursuant to the court-ordered schedule, the EPA must complete
SO2 designations for the remaining areas of the country by
December 31, 2020 (referred to as ``Round 4'').
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\1\ By a series of stipulations of the parties in Sierra Club
and NRDC v. McCarthy and orders of the Court, the deadline for the
three areas in Texas that are the subject of this proposed action,
and a fourth area, Milam County, which is not part of this proposed
action, was extended to November 29, 2016.
\2\ The remaining undesignated portions of the five Texas
counties that are the subject of this notice were designated
attainment/unclassifiable in Round 3.
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On August 21, 2015 (80 FR 51052), the EPA separately promulgated an
SO2 air quality data rule. The Data Requirements Rule (DRR)
requires state air agencies to provide additional monitoring or
modeling information to characterize SO2 air quality in
areas containing SO2 emissions sources either meeting
certain criteria or that have otherwise been listed under the DRR by
the EPA or state air agencies. In lieu of the SO2 air
quality characterization required under the DRR, air agencies could
demonstrate that the listed sources restricted their annual
SO2 emissions to less than 2,000 tons per year (tpy) through
federally enforceable and in effect emission limits, or provide
documentation that the sources had been shut down, by January 13, 2017.
Thus, for the purpose of meeting the DRR obligations, states were
provided options on how to characterize their air quality, including
setting up and beginning operation of new SO2 monitoring
networks by January 1, 2017. States were required to notify the EPA by
July 1, 2016, of which characterization option they had selected for
each listed DRR source. Since states were not required under the DRR to
complete characterization of air quality in subject areas for purposes
of that rule before the Round 2 deadline for the EPA to issue area
designations, for those areas--including the three Round 2 Texas areas
that are the subject of this proposed action--the EPA did not expect to
have the results of the DRR implementation in time for those areas'
designations.
In Freestone County, Big Brown Steam Electric Station (``Big
Brown'') was the largest source of SO2 emissions in the
area, but recently and permanently suspended operations as of January
2018, and the majority of its New Source Review (NSR) permits were
voided on March 29, 2018, and it's operating permit was voided August
3, 2018.\3\ In Titus County, Monticello Steam Electric Station
(``Monticello'') was the largest source of SO2 emissions in
the area, but recently and permanently suspended operations as of
February 2018 and the majority of its NSR permits were voided on
February 14, 2018 and its operating permit was voided on August 3,
2018.4 5 In Rusk County, Martin Lake Electric Station is the
largest source of SO2 emissions in the area and continues to
operate. All three facilities are owned by Vistra Energy Corp and its
subsidiary Luminant (``Vistra Energy'').
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\3\ See docket item number EPA-HQ-OAR-2014-0464-0455 for a list
of Big Brown's voided NSR permits. Big Brown's voided operating
permit is also located in Docket EPA-HQ-OAR-2014-0464.
\4\ For Monticello, see docket item number EPA-HQ-OAR-2014-0464-
0456 for a list of voided NSR permits, and docket item number EPA-
HQ-OAR-2014-0464-0457 for the voided operating permit.
\5\ Any remaining NSR or material handling permits for Big Brown
and Monticello will only be maintained while the facilities complete
closure activities related to coal piles, silos, conveyors, and
other shutdown tasks.
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In 2011, following the promulgation of the revised NAAQS, the state
of Texas initially recommended an unclassifiable designation for
Freestone and Anderson Counties, Rusk and Panola Counties, and Titus
County since, at the time, there were not any SO2 monitors
in these counties. In September 2015, Texas updated its recommendation
to unclassifiable/attainment for areas of the state where there were no
monitors, including the above counties. Texas stated its position that
ambient air monitoring data were the appropriate information for use in
the designation process. In December 2015, prior to the EPA's
notification to the Governor of our intended designations, we received
air quality modeling from the Sierra Club for these three areas, but we
did not receive any other monitoring, modeling, or technical
information from Texas or Vistra Energy. In February 2016, the EPA
notified Texas of our intended designations of nonattainment for three
separate areas covering portions of Freestone and Anderson Counties,
Rusk and Panola Counties, and Titus County, based on the modeling
submitted by Sierra Club.\6\
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\6\ See the 120-day letter from the EPA to Texas: https://www.epa.gov/sites/production/files/2016-03/documents/il-epa-resp-r2.pdf and the Technical Support Document (TSD) for the intended
designations for Texas: https://www.epa.gov/sites/production/files/2016-03/documents/tx-epa-tsd-r2.pdf (``Intended TSD'').
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During the public comment period in March 2016, the EPA received
substantive comments from citizens, Sierra Club, Vistra Energy, the
Texas Commission on Environmental Quality (TCEQ), and the Governor of
the state of Texas regarding our intended nonattainment designations
for these three areas. Summaries of the comments received can be found
in the Responses to Significant Comments on the Designation
Recommendations for the 2010 Sulfur Dioxide National Ambient Air
Quality Standards (NAAQS)--Supplement for Four Areas in Texas Not
Addressed in June 30, 2016, Version.\7\ Vistra Energy submitted air
dispersion modeling for all three areas, and the Sierra Club submitted
updated versions of the modeling previously submitted. The EPA
determined that the modeling submitted by Vistra Energy was not
representative of current air quality in these areas for several
reasons. For example, Vistra Energy's modeling used a non-EPA
preprocessor model, AERLIFT, to increase the observed temperatures and
velocities of the plumes exiting from the stacks, which the EPA
determined was not adequately justified, and, thus, could not be relied
upon in the designations decision-making process. The Sierra Club's
updated modeling used the latest model version available at the time,
in accordance with the general recommendations on modeling provided by
the EPA.\8\ Texas did not submit modeling but maintained its position
that monitoring of air quality was the proper basis for designating
these areas. Concerning the Sierra Club modeling, Texas claimed that
this modeling ``has errors and clearly overestimates actual
SO2 concentrations.'' \9\ Full reviews of the modeling
received can be found in the
[[Page 43760]]
Texas Intended TSD \10\ and Texas Final TSD \11\ from Round 2. The
final nonattainment designations were based on EPA's analysis of all
the air quality modeling submitted by Vistra Energy and Sierra Club, as
well as consideration of comments submitted by Texas.
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\7\ https://www.epa.gov/sites/production/files/2016-11/documents/rtc_so2_comments_received_document_4_tx_sources_final_0.pdf
.
\8\ See the SO2 NAAQS Designations Source-Oriented
Monitoring Technical Assistance Document at https://www.epa.gov/sites/production/files/2016-06/documents/so2monitoringtad.pdf, and
the SO2 NAAQS Designations Modeling Technical Assistance
Document at https://www.epa.gov/sites/production/files/2016-06/documents/so2modelingtad.pdf.
\9\ Comment submitted on March 31, 2016 by Richard A. Hyde,
Executive Director, Texas Commission on Environmental Quality.
Docket ID# EPA-HQ-OAR-2014-0464-0294.
\10\ https://www.epa.gov/sites/production/files/2016-03/documents/tx-epa-tsd-r2.pdf.
\11\ https://www.epa.gov/sites/production/files/2016-11/documents/texas_4_deferred_luminant_tsd_final_docket.pdf.
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On June 29, 2016, timely meeting its DRR option selection deadline,
Texas separately communicated to the EPA that it had chosen the
monitoring pathway for these areas to meet its obligations under that
rule to characterize air quality for the sources in these areas that
were listed under the DRR. In Texas' annual monitoring network plan for
2016, the state indicated that it intended to site new SO2
monitors in any Round 2 area that the EPA designated as nonattainment.
Following up on this intention, in its 2017 annual monitoring network
plan, Texas included new proposed SO2 monitoring sites in
Freestone, Titus, and Rusk Counties to assess air quality in the three
new SO2 nonattainment areas involving Vistra Energy sources.
Texas referred to the 2016 Sierra Club modeling analysis, among other
information, to inform their proposed siting of the new monitors, but
stated: ``The use of the 2016 Sierra Club modeling analysis for
possible monitor placement decisions does not infer TCEQ's concurrence
with the use of this modeling analysis for any other purpose.'' \12\
The EPA approved the three monitor siting proposals in an August 10,
2017, letter to TCEQ.\13\
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\12\ Appendix E: Sulfur Dioxide Data Requirements Rule Monitor
Placement Evaluations, from 2017 TCEQ Annual Monitoring Network
Plan.
\13\ TCEQ subsequently deployed SO2 monitors near Big
Brown on October 30, 2017, and near Martin Lake on November 1, 2017.
No monitors where deployed in the area around Monticello as the
source was retired on February 8, 2018 (see 2018 TCEQ Annual
Monitoring Network Plan).
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On February 13, 2017, the state of Texas, TCEQ, and Vistra Energy
and its subsidiary companies filed petitions for judicial review of the
Round 2 Supplement in the Fifth Circuit Court of Appeals.\14\ On that
same day, Vistra Energy sent the EPA a petition for reconsideration and
administrative stay of EPA's nonattainment designations for Freestone
and Anderson Counties, Rusk and Panola Counties, and Titus County. On
March 15, 2017, TCEQ also submitted a request for an administrative
stay of the Round 2 Supplement. On September 21, 2017, the EPA
responded to Vistra Energy's February 2017 petition for reconsideration
by indicating an intent to undertake an administrative action with
notice and comment to revisit the nonattainment designations for the
three areas. On October 12, 2017, the Fifth Circuit Court of Appeals
granted EPA's motion to place the consolidated challenges to the Round
2 Supplement in abeyance on this basis. In December 2017, TCEQ
submitted a new petition for reconsideration and Vistra Energy
submitted additional information to support their February 2017
petition for reconsideration. Both submissions in December 2017
provided information regarding the planned retirements of the Big Brown
(Freestone/Anderson Counties) and Monticello (Titus County) facilities.
Since December 2017, both the Big Brown and Monticello power plants
have ceased operations and surrendered their operating permits.
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\14\ Sierra Club additionally filed a petition for judicial
review of this action in the D.C. Circuit Court of Appeals, which
was transferred to the Fifth Circuit on November 2, 2017, and
consolidated with the pending petitions.
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In November 2017, Texas sited an SO2 monitor at the
Martin Lake (Rusk/Panola Counties) power plant. Texas also sited and
began operating a monitor around the Big Brown power plant (Freestone/
Anderson Counties) on October 30, 2017. The Big Brown power plant shut
down in February 2018; however, Texas is currently continuing to
operate the monitor. The EPA anticipates that these monitors will not
have 3 years of monitoring data necessary to fully evaluate compliance
with the SO2 NAAQS until the end of calendar year 2020.
Texas also planned to site a monitor around the Monticello power plant
(Titus County), but once the retirement of the facility had been
announced, the monitor was not installed.
C. Purpose of This Action
In this document, the EPA is proposing that we erred in failing to
give greater weight to the state of Texas' preference to use ambient
air monitors to characterize SO2 air quality in their state
for purposes of the designation, when we considered all available
information at the time of designation. The EPA has consistently
recognized appropriately sited ambient air monitoring data as relevant
information for determining an area's designation for the 2010 1-hour
SO2 NAAQS.15 16 The EPA's DRR gave states the
ability to choose whether to characterize areas around listed sources
through modeling or monitoring. It was also the EPA's stated intention
in developing the overall implementation strategy for the 2010
SO2 NAAQS to use the air quality characterizations required
under the DRR to inform area designations, where those
characterizations were conducted in time to inform the EPA's
designations rounds.\17\ However, areas required to be designated in
Round 2 by the first court-ordered deadline of July 2, 2016, generally
were designated before the air quality characterization information
required under the DRR became available, and were required to be
designated regardless of the state's choice of air quality
characterization, including those states that planned to begin
operating a new monitoring network in such an area in 2017 in
accordance with the DRR.
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\15\ See ``Updated Guidance for Area Designations for the 2010
Primary Sulfur Dioxide National Ambient Air Quality Standard,''
memorandum to Regional Air Division Directors, Regions I-X, from
Stephen D. Page, dated March 20, 2015, available at https://www.epa.gov/sites/production/files/2016-04/documents/20150320so2designations.pdf. The EPA supplemented this guidance with
documents first made available to states and other interested
parties in 2013 and updated in 2016. See SO2 NAAQS
Designations Source-Oriented Monitoring Technical Assistance
Document (February 2016), available at https://www.epa.gov/sites/production/files/2016-06/documents/so2monitoringtad.pdf, and
SO2 NAAQS Designations Modeling Technical Assistance
Document (August 2016), available at https://www.epa.gov/sites/production/files/2016-06/documents/so2modelingtad.pdf.
\16\ The EPA has relied on monitors, where appropriate, to
determine that areas were affirmatively attaining or not attaining
the 2010 SO2 NAAQS in all three rounds of designations.
See, e.g., any Round 1 designations (all areas were designated based
on monitored data), Round 2 designation for the Gibson County Area
in Indiana (https://www.epa.gov/sites/production/files/2016-03/documents/in-epa-tsd-r2.pdf and https://www.epa.gov/sites/production/files/2016-07/documents/r5_in_final_designation_tsd_06302016.pdf), and Round 3 designation
for the North Denver Area in Colorado (https://www.epa.gov/sites/production/files/2017-08/documents/7_co_so2_rd3-final.pdf).
\17\ See ``Next Steps on Designating Areas and Implementing the
1-Hour SO2 Standard--EPA Webinar for State, Local, and
Tribal Air Agencies,'' February 13, 2013, page 2, https://archive.epa.gov/apti/video/web/pdf/presentation-7.pdf; Data
Requirements Rule for the 1-Hour Sulfur Dioxide Primary NAAQS--
Proposed Rule, 79 FR 27446 (May 13, 2014) (``[t]he air quality data
developed by the states in accordance with this rulemaking would be
used by the EPA in future rounds of area designations for the 1-hour
SO2 NAAQS'').
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Since 2011, the state of Texas has consistently communicated to the
EPA their support of ambient air monitoring data as the appropriate
information for use in the designations decisions process for areas in
Texas.\18\ Because the
[[Page 43761]]
areas around SO2 emissions sources in Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County were subject to
the Round 2 deadline of July 2, 2016, these areas were required to be
designated at that time, regardless of the state of Texas' preference
to characterize the areas based on monitoring data and its intention to
monitor these areas, given additional time.
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\18\ Examples of these communications include: TCEQ's 2011
Comments on Guidance for 1-Hour SO2 NAAQS SIP Submissions
at https://www.regulations.gov/document?D=EPA-HQ-OAR-2010-1059-0034,
TCEQ's 2014 comments regarding Data Requirements for the 1-Hour
SO2 NAAQS at https://www.regulations.gov/document?D=EPA-HQ-OAR-2013-0711-0051, Texas' 2016 Round 2 recommendations at
https://www.epa.gov/sites/production/files/2016-03/documents/tx-rec-r2.pdf, TCEQ's 2016 Annual Monitoring Network Plan at https://www.tceq.texas.gov/assets/public/compliance/monops/air/annual_review/historical/2016-AMNP.pdf, and TCEQ's 2017 Annual
Monitoring Network Plan at https://www.tceq.texas.gov/assets/public/compliance/monops/air/annual_review/historical/2017-AMNP.pdf.
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However, the EPA is proposing that we erred in failing to give
greater weight to the preference of the state to monitor air quality in
these areas when considering all available information at the time of
designation. Accordingly, in light of the lack of monitoring data
available at that time, and Texas' expressed preference at that time
for designations of these areas to be based on monitoring data, we are
proposing to correct this error by designating the areas as
unclassifiable.
The EPA is also proposing a second, independent grounds for error,
that we erred in relying on available air quality modeling, in
particular modeling submitted by Sierra Club, in making the initial
nonattainment designations for these three areas. As noted earlier, the
modeling submitted by Vistra Energy, which purported to show
attainment, used a non-EPA preprocessor which constitutes an
alternative model for which the state did not secure approval from the
EPA per Appendix W to 40 CFR part 51--Guideline on Air Quality Models.
Also, as noted earlier, the modeling submitted by Sierra Club, which
purported to show nonattainment, while developed in accordance with the
general recommendations on modeling provided by the EPA, contained key
limitations and uncertainties. On one hand, we noted in the Texas
Intended TSD and Texas Final TSD from Round 2 that individually these
key limitations and uncertainties would not significantly change
modeled results or, in many cases, could result in underestimation of
SO2 concentrations.\19\ On the other hand, given the
possible collective significance of these issues and, in the case of
the areas around the Martin Lake and Monticello power plants, given
that the maximum modeled concentrations are within about 10% of the
primary SO2 NAAQS, we are less confident in our prior
statements that potential adjustments to the Sierra Club modeling would
not result in modeled values near or below the NAAQS.\20\ We,
therefore, propose that our error in relying on the Sierra Club
modeling represents an insufficient basis for the EPA's initial
nonattainment designations. Accordingly, we are proposing to correct
this error by designating the areas as unclassifiable.
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\19\ See the Technical Support Document (TSD) for the intended
designations for Texas: https://www.epa.gov/sites/production/files/2016-11/documents/texas_4_deferred_luminant_tsd_final_docket.pdf
(``Final TSD'').
\20\ The maximum predicted 99th percentile 1-hour SO2
concentrations are 224 [micro]g/m\3\ for the modeling domain that
includes the Martin Lake power plant, and 212 [micro]g/m\3\ for the
modeling domain that includes the Monticello power plant. (The 1-
hour SO2 NAAQS is achieved at 196.4 [micro]g/m\3\.) The
prior TSDs erred in stating that the modeling for Monticello showed
concentrations ``almost double the standard.''
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One of the most significant limitations and uncertainties with
Sierra Club's modeling is the absence of variable stack conditions and
representation of 100 percent load stack parameters. As commenters on
the EPA's proposed designations noted, this issue is particularly
pronounced as the Electric Reliability Council of Texas (ERCOT) market
is competitive ``with plant dispatch based on variable cost'' and
falling natural gas prices and renewable capacity resulting in these
units running in variable operations.\21\ The EPA noted in the
technical support document for the 2016 designations in Indiana that
``use of hourly stack parameters more accurately characterize plume
characteristics, which will provide greater reliability both in the
estimated concentration and in the geographical distribution of
concentrations.'' \22\ Other limitations and uncertainties with the
Sierra Club modeling identified in the Texas Intended TSD and the Texas
Final TSD for the 2016 SO2 designations include: Use of an
older version of AERMOD; representation of recent emissions, including
controls after the 2011 National Emissions Inventory; inappropriate
elevation of flagpole receptors; use of a larger receptor grid than
recommended; treatment of building downwash, surface meteorology,
hourly wind inputs, potential to emit/allowable emissions, variable
stack temperature, and velocity; approach to estimation of background
concentrations; and failure to include building downwash and fenceline,
or source contribution in the modeling analysis. While individually
these deficiencies are not dispositive, collectively they are a
sufficient basis for the EPA to propose that we erred in relying on the
Sierra Club modeling in making the initial nonattainment designations
for the three Texas areas.
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\21\ Comment submitted on March 31, 206 from Kim Mireles,
Luminant Generation Company, LLC. Docket ID# EPA-HQ-OAR-2014-0464-
0328. ERCOT is the independent system operator responsible for
dispatching electricity to the majority of Texas consumers.
\22\ Technical Support Document for EPA's Intended Round 2 Area
Designations for the 2010 SO2 NAAQS in Indiana (page 46)
at https://www.epa.gov/sites/production/files/2016-03/documents/in-epa-tsd-r2.pdf.
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This proposed rationale is consistent with related statements by
the EPA. The EPA's March 2011 Guidance explained that given the
currently limited network of SO2 monitors and our
expectation that states will not yet have completed appropriate
modeling of all significant SO2 sources, we anticipated that
most areas of the country will be designated ``unclassifiable.'' \23\
The EPA's updated designations guidance in March 2015 indicated that:
``In the absence of information clearly demonstrating a designation of
`attainment' or `nonattainment,' the EPA intends to designate areas as
`unclassifiable' when it takes action pursuant to the court order.''
\24\ In promulgating revisions to the SO2 NAAQS in 2010, the
EPA stated that where informational records ``are insufficient to
support initial designations of either `attainment' or `nonattainment'
* * * EPA is required to issue a designation for the area of
`unclassifiable.' '' \25\ The EPA also stated that designations would
be determined ``based on 3 years of complete, quality assured,
certified monitoring data'' \26\ and that the EPA would allow for
modeling in addition to monitoring (where monitoring was
insufficient).\27\ The Northern District Court of California also
stated in regards to the consent decree that the appropriate remedy was
to ``. . . require the EPA to issue designations pursuant to a
schedule, not to mandate that EPA issue any particular designation.''
\28\
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\23\ Memorandum dated March 24, 2011, titled ``Area Designations
for the 2010 Revised Primary Sulfur Dioxide National Ambient Air
Quality Standards,'' from Stephen D. Page, Director of EPA's Office
of Air Quality Planning and Standards, to Regional Air Division
Directors.
\24\ https://www.epa.gov/sites/production/files/2016-06/documents/20150320so2designations.pdf.
\25\ 75 FR 35571.
\26\ 75 FR 35570-71.
\27\ 75 FR 35569.
\28\ Sierra Club, et al. v. McCarthy, 2015 WL 889142 at 11.
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Furthermore, the EPA recognizes that its potential future reliance
on properly sited monitors rather than dispersion modeling--as could be
the case in a future redesignation of the Martin Lake power plant in
Rusk/Panola Counties
[[Page 43762]]
area and the Big Brown power plant in Freestone/Anderson Counties
area--would be consistent with the approach the agency took in 2016 in
designating the area around the Gibson power plant in Gibson County,
Indiana. The EPA has also recognized in other areas that, where
conflicting sets of model results exist, the appropriate designation
may be ``unclassifiable,'' depending on the facts of that area.''
29 30
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\29\ See ``Technical Analysis for the Sheldon Station, Nebraska
Area'' in the Technical Support Document for EPA's Intended Round 2
Area Designations for the 2010 SO2 NAAQS in Nebraska
(page 33) at https://www.epa.gov/sites/production/files/2016-03/documents/ne-epa-tsd-r2.pdf, and in the Final Technical Support
Document for EPA's Round 2 Area Designations for the 2010
SO2 NAAQS in Nebraska (page 11) at https://www.epa.gov/sites/production/files/2016-07/documents/r7_ne_final_designation_tsd_06302016.pdf.
\30\ See ``Technical Analysis for Gallia County, Ohio'' in the
Technical Support Document for the EPA's Intended Round 2 Area
Designations for the 2010 SO2 NAAQS in Ohio (page 19) at
https://www.epa.gov/sites/production/files/2016-03/documents/oh-epa-tsd-r2.pdf, and in the Technical Support Document for EPA's Final
Round 2 Area Designations for the 2010 SO2 NAAQS in Ohio
(page 8) at https://www.epa.gov/sites/production/files/2016-07/documents/r5_oh_final_designation_tsd_06302016.pdf.
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Additionally, the EPA is proposing that our error in relying on the
Sierra Club modeling along with our error in failing to give greater
weight to Texas' preference for monitoring, represents an insufficient
basis for the EPA's initial nonattainment designations. Accordingly, we
are proposing to correct this error by designating the areas as
unclassifiable.
The proposed revised designation of unclassifiable indicates that
the EPA could not determine based on available information at the time
of issuing the designation whether the three Texas areas that are the
subject of this proposed action were meeting or not meeting the 2010
SO2 NAAQS. The EPA is initiating this notice-and-comment
process for the public to comment on the EPA's proposed errors and
approach to correct the initial designation for Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County to unclassifiable,
rather than nonattainment.
Furthermore, independent from correcting these initial
designations, the EPA is proposing to remove the portion of Titus
County that was erroneously listed as attainment/unclassifiable on the
Texas Part 81 attainment status designations table. As part the Round 3
final designations rule published on January 9, 2018 (83 FR 1098), the
EPA inadvertently listed a portion of Titus County (i.e., the portion
that is not being designated as part of this proposed action nor the
previous Round 2 final action) as attainment/unclassifiable. Consistent
with the rulemaking records, the remaining portion of Titus County
should not have been listed as attainment/unclassifiable in the part 81
table.\31\ EPA will designate the remaining Titus County area by
December 31, 2020 during the Round 4 designations process.
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\31\ For examples, see Table 2 in the Round 3 final designations
TSD for Texas at https://www.epa.gov/sites/production/files/2017-12/documents/39-tx-so2-rd3-final.pdf and footnote #3 of the Texas Part
81 table.
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II. Instructions for Submitting Public Comments and Internet Website
for Rulemaking Information
A. Invitation To Comment
The purpose of this document is to solicit input from the public on
EPA's error in designating portions of Freestone and Anderson Counties,
Rusk and Panola Counties, and Titus County as nonattainment, and the
corrected designations of unclassifiable.
Please be as specific as possible in supporting your views.
Describe any assumptions and provide any technical
information and/or data that you used.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Provide your input by the comment period deadline
identified.
Previous submissions and supporting technical analyses utilized for
the initial Round 2 designations can be found at https://www.epa.gov/sulfur-dioxide-designations and, also, in the public docket for these
SO2 designations at Docket ID No. EPA-HQ-OAR-2014-0464. Air
dispersion modeling input and output files are too large to post in the
docket or on the website and must be requested from the EPA Docket
Office or from the contact listed in the FOR FURTHER INFORMATION
CONTACT section. The EPA Docket Office can be contacted at (202) 566-
1744, and is located at EPA Docket Center Reading Room, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The hours of operation at the EPA Docket Center are 8:30 a.m.-4:30
p.m., Monday-Friday.
The EPA invites public input on this proposed action regarding
error correction of the designations of the Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County areas during the
30-day comment period provided in this document. In order to receive
full consideration, input from the public must be submitted to the
docket by September 23, 2019. At this time, the EPA is not asking for
public comment on areas beyond the three areas that are the subject of
this proposed action. In addition, in finalizing this action the EPA
will not revisit comments relating to the designations for these three
areas in Texas received in previous public comment periods. (The agency
has already responded to these comments in the previous designations
actions.) This opportunity for public comment does not affect any
rights or obligations of any state, territory, or tribe, or of the EPA,
which might otherwise exist pursuant to the CAA section 107(d).
Please refer to the FOR FURTHER INFORMATION CONTACT section in this
document for specific instructions on submitting comments and locating
relevant public documents.
B. What should I consider as I prepare my comments for the EPA?
1. Submitting CBI. Do not submit CBI information to the EPA through
https://www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI in any digital
storage media that you mail to the EPA, mark the outside of the digital
storage media as CBI and then identify electronically within the
digital storage media the specific information that is claimed as CBI.
In addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 Code of Federal Regulations
(CFR) part 2. Send or deliver information identified as CBI only to the
following address: Tiffany Purifoy, OAQPS CBI Officer, U.S. EPA, Office
of Air Quality Planning and Standards, Mail Code C404-02, Research
Triangle Park, NC 27711, telephone (919) 541-0878, email at
[email protected], Attention Docket ID No. EPA-HQ-OAR-2014-0464.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
[[Page 43763]]
C. Where can I find additional information for this rulemaking?
All documents in the docket are listed in the www.regulations.gov
index, identified by Docket ID No. EPA-HQ-OAR-2014-0464, and on the
agency's SO2 Designations website at https://www.epa.gov/sulfur-dioxide-designations. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the EPA Docket Center. Air
dispersion modeling input and output files are too large to post in the
docket or on the website and must be requested from the contact listed
in the FOR FURTHER INFORMATION CONTACT section. The EPA Docket Center
can be contacted at (202) 566-1744, and is located at EPA Docket Center
Reading Room, WJC West Building, Room 3334, 1301 Constitution Avenue
NW, Washington, DC 20004. The hours of operation at the EPA Docket
Center are 8:30 a.m.-4:30 p.m., Monday-Friday.
III. Environmental Justice Concerns
When the EPA establishes a new or revised NAAQS, the CAA requires
the EPA to designate all areas of the United States as either
nonattainment, attainment, or unclassifiable. This proposed action
would correct an error in the nonattainment designations for Freestone
and Anderson Counties, Rusk and Panola Counties, and Titus County in
Texas for the 2010 SO2 NAAQS. Area designations address
environmental justice concerns by ensuring that the public is properly
informed about the air quality in an area. In locations where air
quality does not meet the NAAQS, the CAA requires relevant state
authorities to initiate appropriate air quality management actions to
ensure that all those residing, working, attending school, or otherwise
present in those areas are protected, regardless of minority and
economic status.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is exempt from review by the Office of Management and
Budget because it is proposing to correct an error in previously
promulgated designations for portions of Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County in Texas for the
2010 1-hour SO2 NAAQS.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 regulatory action
because actions such as error corrections of air quality designations
associated with a new revised NAAQS are exempt under Executive Order
12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. In this action, the EPA is correcting the SO2 NAAQS
designations for portions of Freestone and Anderson Counties, Rusk and
Panola Counties, and Titus County in Texas promulgated previously on
December 13, 2016, and does not contain any information collection
activities.
D. Regulatory Flexibility Act (RFA)
This proposed error correction action under CAA section 110(k)(6)
is not subject to the RFA. The RFA applies only to rules subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act (APA), 5 U.S.C. 553, or any other statute. Section
107(d)(2)(B) of the CAA explicitly provides that designations are
exempt from the notice-and-comment provisions of the APA. In addition,
designations under CAA section 107(d) are not among the list of actions
that are subject to the notice-and-comment rulemaking requirements of
CAA section 307(d).
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. The
division of responsibility between the federal government and the
states for purposes of implementing the NAAQS is established under the
CAA.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Government
This action does not have tribal implications, as specified in
Executive Order 13175. This action concerns the designation of portions
of Freestone and Anderson Counties, Rusk and Panola Counties, and Titus
County in Texas for the 2010 SO2 NAAQS. The CAA provides for
states, territories, and eligible tribes to develop plans to regulate
emissions of air pollutants within their areas, as necessary, based on
the designations. The Tribal Authority Rule (TAR) provides tribes the
opportunity to apply for eligibility to develop and implement CAA
programs, such as programs to attain and maintain the SO2
NAAQS, but it leaves to the discretion of the tribe the decision of
whether to apply to develop these programs and which programs, or
appropriate elements of a program, the tribe will seek to adopt. This
rule does not have a substantial direct effect on one or more Indian
tribes. It would not create any additional requirements beyond those of
the SO2 NAAQS. This rule, if finalized, would revise the
designations for portions of Freestone and Anderson Counties, Rusk and
Panola Counties, and Titus County in Texas for the SO2
NAAQS, but no areas of Indian country are intended to be designated by
this action. Furthermore, this rule does not affect the relationship or
distribution of power and responsibilities between the federal
government and Indian tribes. The CAA and the TAR establish the
relationship of the federal government and tribes in developing plans
to attain the NAAQS, and this rule does nothing to modify that
relationship. Thus, Executive Order 13175 does not apply.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
[[Page 43764]]
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
documentation for this determination is contained in Section IV of this
preamble, ``Environmental Justice Concerns.''
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: August 13, 2019.
Anne L. Idsal,
Acting Assistant Administrator.
[FR Doc. 2019-18048 Filed 8-21-19; 8:45 am]
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