[Federal Register Volume 86, Number 122 (Tuesday, June 29, 2021)]
[Rules and Regulations]
[Pages 34141-34142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13938]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-HQ-OAR-2014-0464; FRL-10024-27-OAR]
Air Quality Designations for the 2010 1-Hour SO2 NAAQS: Responses
to Petitions for Reconsideration and Administrative Stay of the
Designations for Portions of Freestone and Anderson Counties, Rusk and
Panola Counties, and Titus County in Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notification of actions denying petitions for reconsideration
and administrative stay.
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SUMMARY: The Environmental Protection Agency (EPA) is providing notice
that it has responded to petitions for reconsideration and/or
administrative stay of a final action under the Clean Air Act (CAA)
published in the Federal Register on December 13, 2016, titled, ``Air
Quality Designations for the 2010 Sulfur Dioxide (SO2)
Primary National Ambient Air Quality Standard--Supplement to Round 2
for Four Areas in Texas: Freestone and Anderson Counties, Milam County,
Rusk and Panola Counties, and Titus County.'' The EPA has denied these
petitions in letters to the petitioners for the reasons that the EPA
explains in those documents.
DATES: The Administrator signed the associated notification letters on
June 10, 2021.
FOR FURTHER INFORMATION CONTACT: Corey Mocka, U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards, Air
Quality Policy Division, 109 T.W. Alexander Drive, Mail Code C539-04,
Research Triangle Park, NC 27711; phone number: (919) 541-5142; email
address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The EPA is providing notice that it has responded to petitions for
reconsideration and/or administrative stay of a final action under the
CAA published in the Federal Register on December 13, 2016, titled,
``Air Quality Designations for the 2010 Sulfur Dioxide (SO2)
Primary National Ambient Air Quality Standard--Supplement to Round 2
for Four Areas in Texas: Freestone and Anderson Counties, Milam County,
Rusk and Panola Counties, and Titus County'' (81 FR 89870). On February
13, 2017, Vistra Energy submitted a petition requesting that the EPA
reconsider and stay the effective date of the EPA's nonattainment
designations for portions of Freestone and Anderson Counties, Rusk and
Panola Counties, and Titus County. Vistra Energy later supplemented
this petition on December 19, 2017. On March 15, 2017, the Texas
Commission on Environmental Quality (TCEQ) submitted a request for
administrative stay of the effective date for the EPA's final
designations for these areas in Texas. The TCEQ also submitted a
petition for reconsideration of the nonattainment designations on
December 11, 2017. The EPA has denied these petitions in letters to the
petitioners for the reasons that the EPA explains in those documents.
II. Where can I get copies of this document and other related
information?
This Federal Register document, the petitions for reconsideration
and administrative stay, and the response letters to the petitioners
are available in the docket that the EPA established for the
rulemaking, under Docket ID NO. EPA-HQ-OAR-2014-0464.
All documents in the docket are listed in the index at http://www.regulations.gov. Although listed in the index, some information may
not be publicly available, i.e., 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 and will be publicly available only in hard copy form.
Out of an abundance of caution for members of the public and our
staff, the EPA is temporarily suspending the Docket Center and Reading
Room for public visitors to reduce the risk of transmitting COVID-19.
Our Docket Center staff will continue to provide remote customer
service via email, phone, and webform. For further information and
updates on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets. The EPA continues to carefully and
continuously monitor information from the Centers for Disease Control
and Prevention, local area health departments, and our federal partners
so we can respond rapidly as conditions change regarding COVID-19.
In addition, the EPA has established a website for SO2
designations rulemakings at: https://www.epa.gov/sulfur-dioxide-designations. This Federal Register notice, the petitions for
reconsideration and administrative stay, and the response letters
denying the petitions are also available on this website along with
other information.
III. Judicial Review
Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the Court of Appeals for the District of
Columbia Circuit: (i) When the agency action consists of ``nationally
applicable regulations promulgated, or final actions taken, by the
Administrator,'' or (ii) when such action is locally or regionally
applicable, if ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.'' For
locally or regionally applicable final actions, the CAA reserves to the
EPA complete discretion whether to invoke the exception in (ii).
[[Page 34142]]
Judicial challenges to the EPA's denials of petitions for
reconsideration of CAA actions belong in the same venue as any
challenge to the action that such petitions request the agency to
reconsider.\1\
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\1\ Cf. Natural Res. Def. Council, Inc. v. Thomas, 838 F.2d
1224, 1249 (D.C. Cir. 1988) (the clause in CAA section 307(b)
governing ``nationally applicable regulations'' provides
jurisdiction over both the direct challenge to the regulations and
the petition for reconsideration).
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The D.C. Circuit is the only appropriate venue for both challenges
to the final action titled, ``Air Quality Designations for the 2010
Sulfur Dioxide (SO2) Primary National Ambient Air Quality
Standard--Supplement to Round 2 for Four Areas in Texas: Freestone and
Anderson Counties, Milam County, Rusk and Panola Counties, and Titus
County,'' 81 FR 89870 (December 13, 2016) (``Round 2 Supplement'') and
challenges to these actions denying administrative petitions on the
Round 2 Supplement. The EPA made a finding in the Round 2 Supplement,
that the Round 2 Supplement is based on a determination of ``nationwide
scope or effect'' within the meaning of CAA section 307(b)(1). See 81
FR at 89874-75. That action is currently being challenged in the Court
of Appeals for the Fifth Circuit; however, the EPA maintains that the
proper venue for that action is the D.C. Circuit.\2\ Thus, judicial
challenges to the actions noticed here, denying administrative
petitions for reconsideration and/or stay of the Round 2 Supplement,
also belong in the D.C. Circuit.
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\2\ The EPA intends to maintain this position in merits briefing
in the 5th Circuit, as the 5th Circuit's venue decision denied the
EPA's motion to dismiss or transfer the case to the D.C. Circuit
without prejudice to reconsideration of the issue by the merits
panel. Texas v. EPA, 706 Fed. Appx. 159, 161, 165 (5th Cir. 2017)
(``EPA's motion therefore is denied without prejudice to
reconsideration by the merits panel . . . merits briefing will
provide greater clarity on what determinations lie at the [Round 2]
Supplement's core, by, for example, illuminating that the key
determinations in the rule are determinations that specific
methodologies are appropriate or preferable for assessing sulfur
dioxide levels nationwide, as opposed to fact-specific assessments
of sulfur dioxide levels in the four Texas regions. In that case,
the merits panel should not be constrained from revisiting the
issue.'').
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To the extent a court finds these actions denying the
administrative petitions on the Round 2 Supplement to be locally or
regionally applicable, the Administrator is exercising the complete
discretion afforded to him under the CAA to make and publish a finding
that each of these actions are based on a determination of ``nationwide
scope or effect'' within the meaning of CAA section 307(b)(1).\3\ Both
the Round 2 Supplement and these final actions noticed here are
finalized pursuant to a common, uniform nationwide analytical method
and interpretation of CAA section 107(d). In denying the petitions for
reconsideration and administrative stay of the Round 2 Supplement,
these final actions apply the same common, uniform nationwide
analytical method and interpretation of CAA section 107(d) that the EPA
applied across the country in designations for the SO2
Primary National Ambient Air Quality Standard (NAAQS), including the
EPA's nationwide approach to and technical evaluation of air quality
modeling and monitoring data within the EPA's interpretation of
statutory terms under section 107(d)(1) of the CAA.\4\ These final
actions are based on this same common core of determinations regarding
the nationwide analytical method and interpretation of CAA section
107(d), determinations that specific methodologies are appropriate or
preferable for assessing sulfur dioxide levels nationwide.\5\ More
specifically, these final actions are based on a determination by the
EPA to evaluate areas nationwide using a common five-factor analysis in
determining whether areas are in violation of or contributing to an
area in violation of the 2010 SO2 NAAQS at the time of the
designations final action. The actions denying the petitions for
reconsideration explained, for example, that the EPA's designations and
the denials for reconsideration are based on the EPA's determination to
consider and assess the technical representativeness of all available
information regarding then-current air quality at the time of
designations (e.g., to consider third party modeling submitted to the
EPA of the then-most recent years of air quality and then-currently
available monitoring information, and not to consider projections or
intended monitoring of future years' emissions, for SO2
designations under the CAA). For these reasons, the Administrator is
exercising the complete discretion afforded to him by the CAA and
hereby finds that each of these final actions is based on a
determination of nationwide scope or effect for purposes of CAA section
307(b)(1) and is hereby publishing those findings in the Federal
Register.
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\3\ In deciding whether to invoke the exception by making and
publishing a finding that this final action is based on a
determination of nationwide scope or effect, the Administrator has
also taken into account a number of policy considerations, including
his judgment balancing the benefit of obtaining the D.C. Circuit's
authoritative centralized review versus allowing development of the
issue in other contexts and the best use of agency resources.
\4\ In the report on the 1977 Amendments that revised section
307(b)(1) of the CAA, Congress noted that the Administrator's
determination that the ``nationwide scope or effect'' exception
applies would be appropriate for any action that has a scope or
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.
\5\ See, supra, n.2.
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Under CAA section 307(b), any petition for review of these actions
denying the petitions for reconsideration and/or stay must be filed in
the Court of Appeals for the District of Columbia Circuit within 60
days from the date this notice is published in the Federal Register.
Filing a petition for reconsideration by the Administrator of these
final actions does not affect the finality of the actions for the
purposes of judicial review, nor does it extend the time within which a
petition for judicial review must be filed, and shall not postpone the
effectiveness of such actions.
Michael S. Regan,
Administrator.
[FR Doc. 2021-13938 Filed 6-28-21; 8:45 am]
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