[Federal Register Volume 89, Number 244 (Thursday, December 19, 2024)]
[Proposed Rules]
[Pages 103734-103737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29935]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2018-0715; FRL-12462-01-R6]
Air Plan Disapproval; Texas; Houston-Galveston-Brazoria Area
Section 185 Fee Program; Cessation of Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is proposing to disapprove
revisions to the Texas State Implementation Plan (SIP). The revisions
were submitted by the Texas Commission on Environmental Quality (TCEQ
or State) on November 27, 2018, to address CAA requirements for the
Houston-Galveston-Brazoria (HGB) area relevant to the 1979 1-hour ozone
national ambient air quality standard (NAAQS or standard). The EPA
approved most portions of this submission on February 14, 2020. In this
current action, we are proposing to disapprove the remaining portions
not addressed in the February 14, 2020 action. This submission, titled
``Severe Ozone Nonattainment Area Failure to Attain Fee,'' addresses
the CAA section 185 requirement for fee collection programs, which
applies to ozone nonattainment areas classified as Severe or Extreme
that fail to attain by the required attainment date.
DATES: Written comments must be received on or before January 21, 2025.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2018-0715, at https://www.regulations.gov or via email to
[email protected]. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact Jeff Riley, 214-665-8542,
[email protected]. For the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov. While all documents in the
docket are listed in the index, some information may not be publicly
available due to docket file size restrictions or content (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Jeff Riley, EPA Region 6 Office,
Infrastructure & Ozone Section, 214-665-8542, [email protected]. We
encourage the public to submit comments via https://www.regulations.gov. 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 wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
The background for this proposed action is discussed in detail in
two preceding EPA rulemaking actions: our May 16, 2019 Proposed Rule
(84 FR 22093) and our February 14, 2020 Final Rule (85 FR 8411, ``Final
Rule'') to approve revisions to the Texas SIP pertaining to the HGB
area and the revoked 1979 1-hour and 1997 8-hour ozone NAAQS.\1\ \2\ In
EPA's Final rule, we: (1) Approved the State's December 14, 2018
maintenance plan for maintaining both the 1-hour and 1997 ozone NAAQS
through the year 2032 in the HGB area; (2) Determined that the HGB area
continues to attain both the 1-hour and 1997 ozone NAAQS; (3)
Determined that the HGB area met the five criteria in CAA section
107(d)(3)(E) for redesignation with respect to both the 1-hour and 1997
ozone NAAQS; (4) Terminated the anti-backsliding obligations for the
HGB area with respect to the revoked 1-hour and 1997 ozone NAAQS; and,
(5) Approved sufficient provisions of the State's November 27, 2018 SIP
submission titled ``Severe Ozone Nonattainment Area Failure to Attain
Fee'' such that there was as an equivalent alternative 185 fee program
to address CAA section 185 requirements for the HGB 1-hour ozone NAAQS
nonattainment area.\3\
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\1\ Throughout this document, we refer to the 1979 1-hour ozone
NAAQS as the ``1-hour ozone NAAQS'' and the 1997 8-hour ozone NAAQS
as the ``1997 ozone NAAQS.''
\2\ The EPA revoked both the 1-hour and 1997 ozone NAAQS along
with associated designations and classifications (69 FR 23951, April
30, 2004; and 80 FR 12264, March 6, 2015).
\3\ The following elements of the November 27, 2018 submission
were approved as an equivalent alternative 185 fee program to
address CAA section 185: 30 TAC sections 101.100-101.102, 101.104,
101.106-101.110, 101.113, 101.116, 101.117, 101.118(a)(1),
101.118(a)(3), and 101.120-101.122. When this approval was
subsequently challenged, EPA took a voluntary remand without vacatur
of this approval. See Sierra Club v. EPA, D.C. Circuit Docket No.
20-1121 (January 11, 2022).
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In our February 14, 2020 Final Rule, EPA did not act on two
provisions of the State's submitted 185 fee program for the 1-hour
ozone NAAQS for the HGB area: Title 30 of the Texas Administrative Code
(30 TAC) sections 101.118(a)(2) and 101.118(b). The Final Rule stated
that the provisions that were approved at the time were sufficient to
fulfill the requirement to have an equivalent alternative section 185
fee program for the HGB nonattainment area with respect to the 1-hour
ozone standard. However, the two not acted-upon provisions have not
been withdrawn by Texas, and therefore remain pending before the Agency
for consideration as SIP submissions. These two outstanding 185 fee
program provisions are the focus of this proposed rule.
II. The EPA's Evaluation
1. Statutory and Regulatory Requirements
CAA section 185 (Enforcement for Severe and Extreme ozone
nonattainment areas for failure to attain) requirements apply to ozone
nonattainment areas classified as Severe or Extreme that fail to attain
by the required attainment date. It requires each major stationary
source of Volatile Organic Compounds (VOC) located in an area that
fails to attain by its attainment date to pay a fee to the State for
each ton of VOC the source emits in excess of 80 percent of a baseline
amount. CAA section 182(f) extends the application of this provision to
major stationary sources of nitrogen oxides (NOX). States
with ozone nonattainment areas classified as Severe or Extreme must
submit a SIP revision that includes procedures for assessment and
collection of such fees should the area fail to attain the standard by
its attainment date. Under the 1-hour ozone standard, the HGB area,
consisting of Brazoria, Chambers, Fort Bend, Galveston, Harris,
Liberty, Montgomery, and Waller Counties, was designated as
nonattainment and classified as Severe-17 with an attainment deadline
of November 15, 2007 (56 FR 56694, November 6, 1991). Because the HGB
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area was classified as a Severe area, Texas was required to submit a
SIP revision addressing the CAA section 185 requirement. The HGB area
subsequently failed to attain the 1-hour ozone NAAQS by the applicable
attainment deadline of November 15, 2007 (77 FR 36400, June 19, 2012).
Since 2010,\4\ the EPA has taken the position that the Agency can
approve SIPs that include an equivalent alternative program to the
section 185 fee program specified in the CAA when addressing anti-
backsliding for a revoked ozone standard under the principles of
section 172(e). Section 172(e) requires EPA to develop regulations to
ensure that controls in a nonattainment area are ``not less stringent''
than those that applied to the area before EPA revised a NAAQS to make
it less stringent. Although section 172(e) does not directly apply
where EPA has strengthened the NAAQS, as it did in 1997, 2008, and
2015, EPA has applied the principles in section 172(e) when revoking
less stringent ozone standards.\5\ EPA allows a State to adopt an
alternative to CAA section 185 if the State demonstrates that the
proposed alternative program is ``not less stringent'' than the direct
application of CAA section 185. EPA has previously stated that one way
to demonstrate this is to show that the alternative program provides
equivalent or greater fees and/or emissions reductions than those
directly attributable to the application of CAA section 185. EPA has
approved equivalent alternative 185 fee equivalent programs in addition
to the Final Rule. See 84 FR 12511 (April 2, 2019) (approving an
equivalent alternative 185 fee program in New York), 77 FR 74372 (Dec.
14, 2012) (approving an equivalent alternative program for South Coast
Air Quality Management District).
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\4\ See ``Guidance on Developing Fee Programs Required by Clean
Air Act Section 185 for the 1-hour Ozone NAAQS.'' https://www.epa.gov/sites/production/files/2015-09/documents/1hour_ozone_nonattainment_guidance.pdf. Although the 2010 guidance
was vacated and remanded by the D.C. Circuit on procedural grounds,
the court did not prohibit alternative programs, stating ``neither
the statute nor our case law obviously precludes that alternative.''
NRDC v. EPA, 643 F.3d 311 (D.C. Cir. 2011).
\5\ In 2008, we revised the primary and secondary ozone NAAQS to
0.075 parts per million (ppm), averaged over an 8-hour period (73 FR
16436, March 27, 2008). In 2015, we again revised the primary and
secondary ozone NAAQS to 0.070 ppm, averaged over an 8-hour period
(80 FR 65292, October 26, 2015). However, EPA has not revoked the
2008 standard, so section 172(e) would not apply to requirements
under this standard. On November 7, 2022, the HGB area and the
Dallas-Fort Worth (DFW) area were reclassified from Serious to
Severe-15 nonattainment for the 2008 ozone NAAQS (87 FR 60926). As
such, Texas is subject to a requirement to provide a new CAA section
185 failure to attain fee program for both the DFW and HGB areas.
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The TCEQ adopted the Severe Ozone Nonattainment Area Failure to
Attain Fee program for the 1-hour ozone NAAQS (alternative section 185
fee equivalent program) on May 22, 2013 (38 Tex. Reg. 3610, June 7,
2013). However, the program was not submitted to EPA as a SIP revision
until November 27, 2018. EPA's May 16, 2019 Proposed Rule evaluated the
State's alternative section 185 fee equivalent program against the
language of CAA sections 172(e) and 185 to determine whether the State
had demonstrated that the proposed alternative program was ``not less
stringent'' than the direct application of CAA section 185. EPA's
February 14, 2020 Final Rule approved sufficient provisions of the SIP
submission to determine that the State had met applicable requirements
to have a section 185 fee program, or equivalent.
2. Summary of the State's Submission
The November 27, 2018 alternative section 185 fee equivalent
program SIP revision for the 1-hour ozone standard included Subchapter
B (Failure to Attain Fee) in Chapter 101 (General Air Quality Rule) of
30 TAC. The two remaining provisions that EPA has not yet acted on in
this submission are 30 TAC sections 101.118(a)(2) and 101.118(b). Under
30 TAC section 101.118 (Cessation of Program), the State's 185 fee
equivalent program would be terminated following EPA action to:
redesignate the area to attainment (101.118(a)(1)); make a finding of
attainment (101.118(a)(2)); or otherwise end the Failure to Attain fee
(101.118(a)(3)). 30 TAC section 101.118(b) provides that fees would be
calculated but not invoiced, and fee collection may be placed in
abeyance by the TCEQ, pending EPA action on quality-assured data
showing the area's design value meets the 1-hour ozone standard, or a
demonstration indicating that the area would have attained by the
attainment date but for emissions emanating from outside the United
States.
3. The EPA's Review of the State's Submission
EPA's February 14, 2020 Final Rule approved sufficient provisions
of the SIP submittal to determine that there was an operative
alternative section 185 fee equivalent program for the HGB area. This
prior approval included 30 TAC sections 101.118(a)(1) and
101.118(a)(3). EPA determined these provisions provided mechanisms for
terminating the program, through either EPA action to redesignate the
area to attainment or other EPA action to terminate the anti-
backsliding requirements, that are consistent with section 185
equivalent programs as allowed through the anti-backsliding principles
of CAA section 172(e).
30 TAC section 101.118(a)(2), however, allows for the alternative
section 185 fee equivalent program to be terminated upon an EPA finding
of attainment. The language of CAA section 185(a) clearly specifies
redesignation as an attainment area as the only means by which an
area's fee program obligation may be terminated. Allowing for cessation
of the fee program through a finding of attainment by EPA is therefore
contrary to the statutory requirement. While the 1-hour ozone standard
has been revoked, as explained earlier EPA can only approve alternative
185 programs that are equivalent to a statutory 185 program. Texas has
provided no explanation as to how 185 program termination upon a
finding of attainment could be equivalent to the statutory language in
section 185, and EPA has not identified any such explanation either.
Here, the equivalent mechanism is a functional redesignation, which
terminates an area's anti-backsliding requirements for a revoked
standard. As explained earlier, the Final Rule approved a mechanism to
terminate the HGB equivalent alternative program upon EPA terminating
the area's anti-backsliding requirements. EPA has identified no basis
to propose approval of the remaining SIP provisions. EPA accordingly
proposes to disapprove 30 TAC section 101.118(a)(2).
30 section TAC 101.118(b) allows for placing fee payment into
abeyance if the State submits to EPA three consecutive years of
quality-assured data resulting in a design value that does not exceed
the 1-hour ozone standard, or a demonstration indicating that the area
would have attained by the attainment date but for emissions emanating
from outside the United States. Under CAA section 185(a), the relevant
sources shall ``pay a fee to the state . . . for each calendar year
beginning after the attainment date, until the area is redesignated as
an attainment area for ozone'' by EPA. As noted previously, the
language of CAA section 185(a) clearly specifies redesignation as an
attainment area as the only means by which an area's fee program
obligation may be terminated. Thus, provisions that allow the fee
obligation to be terminated prior to an EPA redesignation of the area
as attainment are inconsistent with the relevant statutory language,
and EPA has not
[[Page 103736]]
identified any basis to say that such provisions are equivalent to the
statutory language. EPA accordingly proposes to disapprove 30 section
TAC 101.118(b).
EPA is proposing to disapprove 30 sections TAC 101.118(a)(2) and
101.118(b), as discussed. However, EPA notes that our February 14, 2020
Final Rule terminated anti-backsliding requirements with respect to the
1-hour standard ozone standard for the HGB area. While that action was
challenged, the case was ultimately dismissed,\6\ and the termination
of those anti-backsliding requirements was effective. As such, the
State is no longer required to have a section 185 fee program in place
for the HGB area with respect to the 1-hour ozone standard. Therefore,
while we are proposing to disapprove the relevant provisions of the
State's alternative section 185 fee equivalent program for the reasons
discussed in this notice, EPA is also proposing to find that these
provisions are part of a SIP submission that is no longer required.
Accordingly, we are proposing to find that the State does not have an
obligation to correct the deficiencies identified in this proposed
disapproval, and that this disapproval, if finalized, would not trigger
mandatory sanctions under CAA section 179(b), or the EPA's obligation
to promulgate a Federal Implementation Plan under CAA section 110(c).
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\6\ The United States Court of Appeals for the 5th Circuit
dismissed the case on December 1, 2022 (see Sierra Club v. EPA, 5th
Circuit docket no. 20-60303).
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III. Proposed Action
We are proposing to disapprove the 30 TAC sections 101.118(a)(2)
and 101.118(b) of Texas's alternative section 185 fee equivalent
program with respect to the 1-hour ozone NAAQS for the HGB area as
submitted in the State's November 27, 2018 SIP revision. EPA proposes
this disapproval with respect to the failure to attain fee program
requirements under CAA sections 182 and 185 for the reasons discussed
above. The effect of this proposal, if finalized, is that 30 sections
TAC 101.118(a)(2) and 101.118(b) will not become part of Texas's State
Implementation Plan. As our February 14, 2020 Final Rule terminated the
anti-backsliding requirements with respect to the 1-hour standard for
the HGB area, Texas has no obligation to have this alternative section
185 fee program in place. Accordingly, we are proposing to find that
Texas does not have an obligation to correct these deficiencies in its
rules, and that this proposed disapproval, if finalized, would not
trigger mandatory sanctions under CAA section 179(b). As previously
noted, Texas is required to provide a CAA section 185 failure to attain
fee program for both the DFW and HGB areas with respect to the 2008
ozone standard, and this proposed action does not impact that
requirement.
IV. Environmental Justice Considerations
Executive Order (E.O.) 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to
identify and address ``disproportionately high and adverse human health
or environmental effects'' of their actions on communities with
environmental justice (EJ) concerns to the greatest extent practicable
and permitted by law. Executive Order 14096 (Revitalizing Our Nation's
Commitment to Environmental Justice for All, 88 FR 25251, April 26,
2023) builds on and supplements E.O. 12898 and defines EJ as, among
other things, ``the just treatment and meaningful involvement of all
people, regardless of income, race, color, national origin, or Tribal
affiliation, or disability in agency decision-making and other Federal
activities that affect human health and the environment.''
The air agency did not evaluate EJ considerations as part of its
SIP submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. EPA did not perform an EJ
analysis and did not consider EJ in this action. Due to the nature of
the action being taken here, this action is expected to have a neutral
to positive impact on the air quality of the affected area.
Consideration of EJ is not required as part of this action, and there
is no information in the record inconsistent with the stated goal of
E.O. 12898/14096 of achieving EJ for communities with EJ concerns.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to review State choices,
and approve those choices if they meet the minimum criteria of the CAA.
Accordingly, this proposed action to disapprove the remaining
provisions of Texas' 185 fee program for 1-hour ozone NAAQS for the HGB
area submitted to EPA on November 27, 2018, disapproves State law as
not meeting Federal requirements and does not impose additional
requirements beyond those imposed by State law.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by
E.O. 14094 (88 FR 21879, April 11, 2023), and was therefore not
submitted to the Office of Management and Budget (OMB) for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA (44 U.S.C. 3501 et seq.) 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 (5
U.S.C. 601 et seq.). This action will not impose any requirements on
small entities.
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. This 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 as specified in
E.O. 13132 (64 FR 43255, August 10, 1999). 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 proposed action has no Tribal implications as specified in
E.O. 13175 (65 FR 67249, November 9, 2000). This action will neither
impose substantial direct compliance costs on Federally recognized
Tribal governments, nor preempt Tribal law. This action will not impose
substantial direct compliance costs on Federally recognized Tribal
governments because no actions will be required of Tribal governments.
This action will also not preempt Tribal law
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as it does not have applicable or related Tribal laws.
G. Executive Order: 13045 Protection of Children From Environmental
Health & Safety Risks
The EPA interprets E.O. 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. Therefore, this action is not subject to Executive
Order 13045 because it merely proposes to disapprove SIP revisions.
Furthermore, the EPA's Policy on Children's Health does not apply to
this action.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to E.O. 13211 (66 FR 28355, May 22,
2001), because it is not a significant regulatory action under E.O.
12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. This
action is not subject to the requirements of section 12(d) of the NTTAA
(15 U.S.C. 272 note) because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on communities with environmental justice
(EJ) concerns to the greatest extent practicable and permitted by law.
Executive Order 14096 (Revitalizing Our Nation's Commitment to
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on
and supplements E.O. 12898 and defines EJ as, among other things, ``the
just treatment and meaningful involvement of all people, regardless of
income, race, color, national origin, or Tribal affiliation, or
disability in agency decision-making and other Federal activities that
affect human health and the environment.''
The air agency did not evaluate EJ considerations as part of its
SIP submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. EPA did not perform an EJ
analysis and did not consider EJ in this action. Due to the nature of
the action being taken here, this action is expected to have a neutral
to positive impact on the air quality of the affected area.
Consideration of EJ is not required as part of this action, and there
is no information in the record inconsistent with the stated goal of
E.O. 12898/14096 of achieving EJ for communities with EJ concerns.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 12, 2024.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2024-29935 Filed 12-18-24; 8:45 am]
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