[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]
 BILLING CODE 6560-50-P