[Federal Register Volume 86, Number 59 (Tuesday, March 30, 2021)]
[Rules and Regulations]
[Pages 16531-16533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06135]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0611; FRL-10021-20-Region 6]


Air Plan Approval; Texas; Interstate Visibility Transport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is disapproving elements of two 
State Implementation Plan (SIP) submissions from the State of Texas for 
the 2012 PM2.5 National Ambient Air Quality Standard (NAAQS) 
and the 2015 Ozone NAAQS. These submittals address how the existing SIP 
provides for implementation, maintenance, and enforcement of the 2012 
PM2.5 and 2015 Ozone NAAQS (infrastructure SIP or i-SIP). 
The i-SIP requirements are to ensure that the Texas SIP is adequate to 
meet the state's responsibilities under the CAA for these NAAQS. 
Specifically, this disapproval addresses the interstate visibility 
transport requirements of the i-SIP for the 2012 PM2.5 and 
2015 Ozone NAAQS under CAA section 110(a)(2)(D)(i)(II). In addition to 
this disapproval, we are finalizing our determination that the 
requirements of those i-SIP elements are met through the Federal 
Implementation Plans (FIPs) in place for the Texas Regional Haze 
program, and no further federal action is required.

DATES: This rule is effective on April 29, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2016-0611. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jennifer Huser, EPA Region 6 Office, 
Regional Haze and SO2 Section, 214-665-7347, 
[email protected]. Out of an abundance of caution for members of 
the public and our staff, the EPA Region 6 office will be closed to the 
public to reduce the risk of transmitting COVID-19. Please call or 
email the contact listed above if you need alternative access to 
material indexed but not provided in the docket.

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

I. Background

    The background for this action is discussed in detail in our 
October 27, 2020 proposal (85 FR 68021). In that document, we proposed 
to disapprove the interstate visibility transport elements of two SIP 
submissions from the State of Texas: One for the 2012 PM2.5 
NAAQS and the other for 2015 Ozone NAAQS. We simultaneously proposed, 
in exercising our authority under section 110(c) of the Act, to find 
that the interstate visibility transport requirements that were 
intended to be addressed by those infrastructure SIPs are met through 
the Best Available Retrofit Technology (BART)-alternative FIPs already 
in place for the Texas Regional Haze program, and that no further 
action is required.
    The public comment period for the proposed action closed on 
November 27, 2020. We received one public comment concerning our 
proposed action. The comment is included in the publicly posted docket 
associated with this action at https://www.regulations.gov. Below we 
provide a summary of the comment along with our detailed responses. 
After careful consideration, we have decided to finalize our action 
with no changes from the proposed action.

II. Response to Comments

    Comment: The commenter raised concerns regarding the necessity of 
implementing a FIP and stated that a FIP is a good resource for states 
that are not complying with requirements for NAAQS set under the CAA. 
However, the commenter explains that Texas had submitted multiple SIPs 
in which requirements outside of the regional haze and visibility 
transport were met. The commenter asserts that the original regional 
haze SIP met EPA requirements when it was developed, but the D.C. 
Circuit remanded the Clean Air Interstate Rule (``CAIR'') which was a 
central part of Texas' SIP. The commenter further contends that when 
EPA replaced CAIR with the Cross-State Air Pollution Rule (``CSAPR''), 
the FIP imposed requirements on sources in Texas rather than allowing 
Texas to find the best method to utilize the new rule and submit a SIP 
revision. The commenter asserts that the final regional haze FIP 
imposed the trading program for SO2 on specific Electric 
Generating Units (EGUs) and did not allow out-of-state trading. By the 
time the final regional haze FIP for Texas was issued in 2017, Texas 
could have proposed a revised SIP that satisfied the NAAQS requirements 
without targeting specific EGUs. The commenter concludes that just 
because CSAPR is better than BART does not mean it should be the only 
option.
    Response: First, we note that comments regarding CAIR and CSAPR, as 
well as EPA's 2012 limited disapproval of the 2009 Texas Regional Haze 
SIP or EPA's obligation to promulgate a FIP to address the BART 
requirements for EGUs in Texas, are beyond the scope of this action, 
and as such, we will not be responding to them. However, because we are 
relying on the Texas regional haze FIP to fulfill the visibility 
transport requirements, we will address comments only as they are 
relevant to the current action. We agree with the commenter that Texas 
could have proposed a revised SIP to address the requirements. However, 
in response to court deadlines and without a revised Texas SIP 
submission, EPA was required to adopt a FIP to address BART. Texas may 
submit a SIP to replace the BART FIP at any point, including a SIP that 
includes an approach to implementing necessary emission reductions that 
is different from the trading program included in EPA's FIP, but the 
State has not done so to date.
    EPA further notes that it is not implementing a new FIP in this 
action but is instead finding that an existing regional haze FIP also 
satisfies the interstate visibility transport requirements in CAA 
section 110(a)(2)(D)(i)(II). In our August 12, 2020 final rulemaking on 
Texas regional haze,\1\ we affirmed our previous finding that Texas' 
participation in CSAPR to satisfy NOX BART and our 
SO2 intrastate trading program, as amended, fully addressed 
Texas' interstate visibility transport obligations for the following 
six NAAQS: (1) 1997 8-hour ozone; (2) 1997 PM2.5 (annual and 
24 hour); (3) 2006 PM2.5 (24-hour); (4) 2008 8-hour ozone; 
(5) 2010 1-hour NO2; and (6) 2010 1-hour SO2. 
This action was based on our determination in the October 2017 FIP that 
the regional haze measures in place for Texas are adequate to ensure 
that emissions from the State do not interfere with measures to protect 
visibility in nearby states, because the emission reductions are 
consistent with the level of emissions reductions relied upon by other 
states during interstate consultation under 40

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CFR 51.308(d)(3)(i)-(iii) and when setting their reasonable progress 
goals.\2\ The October 2017 FIP relies on CSAPR for ozone season 
NOX as an alternative to EGU BART for NOX, which 
exceeds the NOX emission reductions and that other states 
relied upon during interstate consultation for the first planning 
period.\3\ Similarly, the Texas SO2 intrastate trading 
program ensures emission reductions consistent with and below the 
emission levels relied upon by other states during interstate 
consultation. Accordingly, consistent with our earlier finding that the 
October 2017 FIP results in emission reductions adequate to satisfy the 
requirements of CAA section 110(a)(2)(D)(i)(II) with respect to 
visibility for the six NAAQS addressed by the August 12, 2020 
rulemaking, we find that the FIP also satisfies these requirements with 
respect to the 2012 PM2.5 and 2015 Ozone NAAQS.
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    \1\ 85 FR 156 (August 12, 2020).
    \2\ See 2009 Texas Regional Haze SIP, section 4.3 titled 
``Consultations On Class I Areas In Other States.'' The submittal 
can be found at www.regulations.gov, Docket ID EPA-R06-OAR-2016-
0611, Document ID EPA-R06-OAR-2016-0611-0002.
    \3\ The 2018 EGU emission projections for NOX used by 
CENRAP for Texas, which other states potentially impacted by 
emissions from Texas sources agreed upon during interstate 
consultation and relied on in their regional haze SIPs, were 
approximately 160,000 tons. In contrast, under the CSAPR ozone 
season NOX trading program, Texas' 2017 NOX 
ozone season budget is 52,301 tons of NOX. See 81 FR 
74504, 74508 (Oct. 26, 2016).
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    Comment: The commenter raises concerns regarding the financial 
implications of the regional haze FIP, noting that, in October 2017 
when the FIP was finalized, three of the Luminant coal-fired power 
plants listed in the FIP were announced to be shut down. The commenter 
states that the shutdown of the Big Brown Power plant was devastating 
to the small community in Freestone County, as the power plant was the 
largest employer in the area, providing over 200 jobs and $65 million 
in tax revenue for the small town. The commenter further speculates 
that while carbon capture technology may have been a future option for 
Luminant, the application of ``sudden'' legislation forced the 
shutdown, which may have been avoided had Texas developed a SIP that 
showed ``reasonable further progress'' and allowed a more stable 
adaptation or phase out for the effected facilities.
    Response: We disagree with the commenter's assertion that the 
finalization of the October 2017 FIP correlated to the shutdown of 
Luminant's power plants, specifically Big Brown. According to 
Luminant's website, the plants were ``economically challenged in the 
competitive ERCOT market. Sustained low wholesale power prices, an 
oversupplied renewable generation market, and low natural gas prices, 
along with other factors, have contributed to this decision.'' \4\ We 
also note that the FIP did not impose the addition of site-specific 
controls, but rather established an intrastate trading program with 
assurance provisions that resulted in an aggregate visibility impact 
from Texas EGU emissions under the trading program similar to, or less 
than, what would have been realized from Texas participation in the 
CSAPR SO2 trading program. Finally, we note that Luminant/
Vistra provided a comment letter in support of EPA's prior FIP action 
in October 2017, and the affirmation of that rule in August 2020.\5\
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    \4\ https://www.luminant.com/luminant-close-two-texas-power-plants/.
    \5\ EPA-R06-OAR-2016-0611-0186 (January 2020) and EPA-R06-OAR-
2016-0611-0162 (October 2018).
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III. Final Action

    The EPA is disapproving the interstate visibility transport 
elements of two SIP submissions from the State of Texas: One for the 
2012 PM2.5 NAAQS and the other for 2015 Ozone NAAQS. We 
simultaneously find, in exercising our authority under section 110(c) 
of the Act, that the interstate visibility transport requirements that 
were intended to be addressed by those infrastructure SIPs are met 
through the BART-alternative FIP already in place for the Texas 
Regional Haze program, and that no further action is required.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This final action is not a ``significant regulatory action'' was 
therefore not submitted to the Office of Management and Budget for 
review.

B. Paperwork Reduction Act (PRA)

    This final action does not impose an information collection burden 
under the PRA because it does not contain any information collection 
activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action merely disapproves a SIP submission as not meeting the CAA.

D. 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.

E. 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only 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 merely disapproves a SIP submission as 
not meeting the CAA.

H. 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.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by 
this action will not have potential

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disproportionately high and adverse human health or environmental 
effects on minority, low-income or indigenous populations. This action 
merely disapproves a SIP submission as not meeting the CAA.

K. Congressional Review Act (CRA)

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 1, 2021. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Visibility transport.

    Dated: March 19, 2021.
David Gray,
Acting Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

0
2. Amend Sec.  52.2304 by revising paragraph (d) to read as follows:


Sec.  52.2304  Visibility protection.

* * * * *
    (d) Portions of SIPs addressing noninterference with measures 
required to protect visibility in any other state are disapproved for 
the 1997 PM2.5, 2006 PM2.5, 1997 ozone, 2008 
ozone, 2010 NO2, 2010 SO2, 2012 PM2.5, 
and 2015 ozone NAAQS.
* * * * *
[FR Doc. 2021-06135 Filed 3-29-21; 8:45 am]
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