Approval and Promulgation of Air Quality Implementation Plans; Texas; Infrastructure or Requirements for the 2008 Ozone and 2010 Nitrogen Dioxide National Ambient Air Quality Standards, 62375-62378 [2016-21593]
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Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Rules and Regulations
Dated: August 24, 2016.
Mark Hague,
Regional Administrator, Region 7.
Subpart R—Kansas
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
For the reasons stated in the
preamble, EPA is amending 40 CFR part
52 as set forth below:
62375
2. In § 52.870(e) the table is amended
by adding entry (44) in numerical order
to read as follows:
■
1. The authority citation for part 52
continues to read as follows:
■
§ 52.870
*
Authority: 42 U.S.C. 7401 et seq.
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED KANSAS NONREGULATORY SIP PROVISIONS
Name of nonregulatory SIP revision
Applicable geographic or
nonattainment area
*
*
*
(44) Section 110(a)(2) InfraStatewide ...............................
structure Requirements for
the 2012 PM2.5 NAAQS.
[FR Doc. 2016–21474 Filed 9–8–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2012–0953; FRL–9950–77–
Region 6]
Approval and Promulgation of Air
Quality Implementation Plans; Texas;
Infrastructure or Requirements for the
2008 Ozone and 2010 Nitrogen Dioxide
National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving elements of
State Implementation Plan (SIP)
submissions from the State of Texas for
Ozone (O3) and Nitrogen Dioxide (NO2)
National Ambient Air Quality Standards
(NAAQS). These submittals address
how the existing SIP provides for
implementation, maintenance, and
enforcement of the 2008 O3 and 2010
NO2 NAAQS (infrastructure SIPs or iSIPs). These i-SIPs ensure that the
State’s SIP is adequate to meet the
State’s responsibilities under the
Federal Clean Air Act (CAA).
DATES: This rule is effective on October
11, 2016.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R06–OAR–2012–0953. All
documents in the docket are listed on
the https://www.regulations.gov Web
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SUMMARY:
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State submittal
date
*
11/16/15
EPA approval date
*
9/9/16, [Insert Federal Register citation].
site. 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 and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically through https://
www.regulations.gov or in hard copy at
the EPA Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733.
FOR FURTHER INFORMATION CONTACT:
Sherry Fuerst, telephone (214) 665–
6454, fuerst.sherry@epa.gov.
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 February 8,
2016, proposal (81 FR 6483). In that
document we proposed to approve
elements of SIP submittals from the
State of Texas for the 2008 O3 and 2010
NO2 NAAQS. These submittals address
how the existing SIP provides for
implementation, maintenance, and
enforcement of the 2008 O3 and 2010
NO2 i-SIPs.
We received comments on the
proposal submitted jointly from two
organizations. Our response to the
comments are below.
II. Response to Comments
Comment: We received one set of
comments—submitted jointly by the
Sierra Club and Downwinders at Risk—
on the February 8, 2016 proposal to
approve certain elements of Texas’s SIP
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Explanation
*
*
This action addresses the following CAA elements:
110(a)(2)(A), (B), (C), (D),
(E), (F), (G), (H), (J), (K),
(L), and (M). 110(a)(2)(I) is
not applicable. [EPA–R07–
OAR–2016–0313; FRL– ]
submissions for the 2008 ozone and
2010 NO2 NAAQS. These comments are
provided in the docket for today’s
rulemaking action. The commenters
contend that EPA cannot approve the
section 110(a)(2)(A) portion of Texas’s
2008 ozone infrastructure SIP
submission because of Fifth Circuit
‘‘binding precedent’’ purportedly
holding this portion of the submission
must ‘‘prohibit upwind sources in Texas
from significantly contributing to
nonattainment in downwind areas’’ in
Texas. Specifically, the commenters
contend that there are five coal-fired
power plants in East Texas that
‘‘significantly contribute’’ to Dallas-Fort
Worth’s ozone nonattainment problem
and that the Texas i-SIP fails to address
those emissions.
Response: We disagree with the
commenters that infrastructure SIPs
must include detailed attainment and
maintenance plans for all areas of the
state and must be disapproved if air
quality data and modeling show current
and future nonattainment. We believe
that section 110(a)(2)(A) is reasonably
interpreted to require states to submit
SIPs that reflect the first step in their
planning for attaining and maintaining
a new or revised NAAQS and that they
contain enforceable control measures
and demonstration that the state has the
available tools and authority to develop
and implement plans to attain and
maintain the NAAQS.
The commenters suggest that EPA
must disapprove the Texas ozone
infrastructure SIP because of the fact
that areas in Texas have air quality data
and modeling projections above or
forecasting above the standard, which
proves that the infrastructure SIP is
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Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Rules and Regulations
inadequate. We disagree with the
commenters because EPA does not
believe that section 110(a)(2)(A) requires
detailed planning SIPs demonstrating
either attainment or maintenance for
specific geographic areas of the state.
The infrastructure SIP is triggered by
promulgation of the NAAQS, not
designation. Moreover, infrastructure
SIPs are due three years following
promulgation of the NAAQS. Thus,
during a significant portion of the
period that a state has available for
developing the infrastructure SIP, it
does not know what the designation
will be for individual areas of the state.
In light of the structure of the CAA, our
long-standing position regarding
infrastructure SIPs is that they are
general planning SIPs to ensure that the
state has adequate resources and
authority to implement a NAAQS in
general throughout the state and not
detailed attainment and maintenance
plans for each individual area of the
state.
Our interpretation that infrastructure
SIPs are more general planning SIPs is
consistent with the statute as
understood in light of its history and
structure. When Congress enacted the
CAA in 1970, it did not include
provisions requiring states and the EPA
to label areas as attainment or
nonattainment. Rather, states were
required to include all areas of the state
in ‘‘air quality control regions’’ (AQCRs)
and section 110 set forth the core
substantive planning provisions for
these AQCRs. At that time, Congress
anticipated that states would be able to
address air pollution quickly pursuant
to the very general planning provisions
in section 110 and could bring all areas
in compliance with the NAAQS within
five years. Moreover, at that time,
section 110(a)(2)(A)(i) specified that the
section 110 plan provide for
‘‘attainment’’ of the NAAQS and section
110(a)(2)(B) specified that the plan must
include ‘‘emission limitations,
schedules, and timetables for
compliance with such limitations and
such other measures as may be
necessary to insure attainment and
maintenance [of the NAAQS].’’ In 1977,
Congress recognized that the existing
structure was not sufficient and many
areas were still violating the NAAQS. At
that time, Congress for the first time
added provisions requiring states and
EPA to identify whether areas of the
state were violating the NAAQS (i.e.,
were nonattainment) and established
specific planning requirements in
section 172 for areas not meeting the
NAAQS. In 1990, many areas still had
air quality not meeting the NAAQS and
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Congress again amended the CAA and
added yet another layer of more
prescriptive planning requirements for
each of the NAAQS, with the primary
provisions for ozone in section 182. At
that same time, Congress modified
section 110 to remove references to the
section 110 SIP providing for
attainment, including removing preexisting section 110(a)(2)(A) in its
entirety and renumbering subparagraph
(B) as section 110(a)(2)(A). Additionally,
Congress replaced the clause ‘‘as may be
necessary to insure attainment and
maintenance [of the NAAQS]’’ with ‘‘as
may be necessary or appropriate to meet
the applicable requirements of this
chapter.’’ Thus, the CAA has
significantly evolved in the more than
40 years since it was originally enacted.
While at one time section 110 did
provide the only detailed SIP planning
provisions for states and specified that
such plans must provide for attainment
of the NAAQS, under the structure of
the current CAA, section 110 is only the
initial stepping-stone in the planning
process for a specific NAAQS. More
detailed, later-enacted provisions
govern the substantive planning
process, including planning for
attainment of the NAAQS.
For all of these reasons, EPA disagrees
with the commenters that we must
disapprove an infrastructure SIP
revision if there are monitored or
forecasted violations of the standard in
the state and the section 110(a)(2)(A)
revision does not have detailed plans for
demonstrating how the state will bring
that area into attainment. Rather we
believe that the proper inquiry at this
juncture is whether the state has met the
basic structural SIP requirements
appropriate at the point in time we are
acting upon the submittal.
Further, we disagree with the
commenters’ suggestion that the Texas
SIP does not adequately address the
CAA section 110(a)(2)(A) requirement
for enforceable emission limits based on
Sierra Club v. EPA, 314 F.3d 735 (5th
Cir. 2002). The commenters contend
that the Fifth Circuit’s opinion in Sierra
Club mandates disapproval by EPA of
this i-SIP because Texas has areas
measuring nonattainment of the NAAQS
at issue. The Fifth Circuit’s opinion is
not ‘‘binding precedent’’ on this point,
and mandates no such disapproval.
To the extent the Fifth Circuit
discussed section 110(a)(2)(A) at all in
Sierra Club, it was in dicta. The Fifth
Circuit’s Sierra Club opinion primarily
concerned the distinct issue of whether
EPA’s ‘‘extension of the statutory date’’
for Beaumont, Texas to attain the onehour ozone NAAQS (and approval of
Texas’s attainment SIP based on that
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extension) complied with the CAA.1
The court’s lone citation to CAA section
110(a)(2)(A) appears in a portion of the
opinion titled, ‘‘Factual and Procedural
Background,’’ following a brief
discussion of CAA section
110(a)(2)(D)(i)(I). Read in full context, it
is clear that the court’s mention of
section 110(a)(2)(A) is merely a
recitation of the regulatory background,
not a holding:
Under the CAA, states must adopt SIPs
specifying emission limitations applicable to
pollution sources in order to maintain and
enforce each NAAQS. 42 U.S.C. 7410(a). SIPs
are submitted to the EPA, which may
approve, conditionally approve, or
disapprove the SIPs in full or in part. Id.
§ 7410(k). Significantly, the CAA has a
provision that requires SIPs to contain
provisions regulating emissions that
‘‘contribute significantly to nonattainment in,
or interfere with maintenance by, any other
State with respect to any such national
primary or secondary ambient air quality
standard.’’ Id. § 7410(a)(2)(D)(i)(I). In
addition, as noted in the challenged final
action, the EPA has interpreted 42 U.S.C.
7410 (a)(2)(A) as incorporating a similar
requirement that an upwind area be
prohibited from contributing significantly to
nonattainment in a downwind area within
the same state. See 66 FR 26,917.2
This lone mention of CAA section
110(a)(2)(A) was likely because EPA had
invoked its interpretation of that section
as one justification for why it was
reasonable to read the Act as permitting
the relevant deadline extension. While
this passing mention of CAA section
110(a)(2)(A) was dicta, the Fifth
Circuit’s decision invalidating EPA’s
extension policy was not: Regardless of
the merits of EPA’s proffered
interpretation of CAA section
110(a)(2)(A), the court held at Chevron
step one that the CAA did not authorize
EPA to grant extensions of the
attainment date.3
The EPA interpretation mentioned
off-hand in the Sierra Club opinion—
i.e., that section 110(a)(2)(A)
incorporates a similar requirement for
intrastate transport as section
110(a)(2)(D)(i)(I) does for interstate
transport—is no longer the Agency’s
interpretation and has not been so for
quite some time.4 EPA’s prior
1 See Sierra Club v. EPA, 314 F.3d 735, 739–43
(5th Cir. 2002). The case also addressed whether
EPA had reasonably concluded that no additional
Reasonably Available Control Measures were
required for the Beaumont area. See id. at 743–45.
2 Id. at 737.
3 Id. at 740–41.
4 Likewise, the details of the Agency’s
interpretation of CAA section 110(a)(2)(D)(i)(I) have
also changed, in part guided by U.S. Supreme Court
and D.C. Circuit case law evaluating EPA’s
rulemakings under that provision. See, e.g., North
Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008)
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interpretation is not ‘‘carved in stone’’;
agencies are permitted to change their
interpretations.5 EPA’s most recent
interpretation of CAA section
110(a)(2)(A) can be found in the 2013
Infrastructure SIP Guidance,6 as well as
relatively recent regulatory actions.7
Even if the Fifth Circuit had not
reversed the EPA’s extension policy at
Chevron step one (which it did), and
even if the EPA had not subsequently
changed its interpretation of CAA
section 110(a)(2)(A) (which it has), the
commenters would still be incorrect in
their contention that EPA must use the
same ‘‘significant contribution’’ analysis
for intrastate emissions that EPA has
recently used for interstate emissions
under section 110(a)(2)(D)(i)(I). That
analysis is based in part on an
evaluation of ‘‘the total ‘collective
contribution’ ’’ of multiple upwind
interstate sources that is captured at
various significance thresholds; 8 it was
never intended to apply in the intrastate
context. Nor does the relevant statutory
phrase, ‘‘significant contribution,’’
appear in CAA section 110(a)(2)(A).
Section 110(a)(2)(A) of the CAA
requires enforceable emission limits and
control measures. As noted in the 2012
Infrastructure SIP Guidance, a different
part of the CAA, part D, outlines the
process, timeframe, and substantive
requirements for states to bring their
nonattainment areas into attainment.
The Fifth Circuit’s Sierra Club opinion
says nothing to the contrary. The court
in no way ruled that infrastructure SIPs
must contain provisions prohibiting
upwind intrastate areas from
‘‘significantly contributing’’ to
nonattainment in downwind intrastate
areas, or that EPA must apply the same
technical analysis to intrastate
emissions as it does for interstate
emissions under a different subsection.
Commenters’ reliance on the Fifth
Circuit’s opinion as setting forth that
precedent is misplaced. In short, we
disagree that the Sierra Club opinion
constitutes ‘‘binding precedent’’
requiring us to disapprove the
infrastructure SIP for CAA section
110(a)(2)(A).
(evaluating EPA’s Clean Air Interstate Rule, 70 FR
25,162 (May 12, 2005); EME Homer City Generation,
L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), rev’d 134
S. Ct. 1584 (2014), remanded to 795 F.3d 118 (D.C.
Cir. 2015) (evaluating EPA’s Cross-State Air
Pollution Rule, 76 FR 48208 (Aug. 8 2011)).
5 See Nat’l Cable and Telecomms. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 981–82 (2005)
(quoting Chevron, U.S.A., Inc. v. NRDC, 467 U.S.
863–64 (1984)).
6 Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2).
7 See, e.g., 80 FR 33840.
8 See, e.g., 76 FR 48208, 48236–37 (Aug. 8, 2011).
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III. Final Action
We are approving elements of the (1)
December 13, 2012, SIP submittal for
the State of Texas pertaining to the
implementation, maintenance and
enforcement of the 2008 ozone NAAQS,
and; (2) December 7, 2012, SIP submittal
pertaining to the implementation,
maintenance and enforcement of the
2010 nitrogen dioxide NAAQS as
outlined in our February 8, 2016,
proposal. Specifically, EPA is approving
the following infrastructure elements or
portions thereof: 110(a)(2)(A), (B), (C),
(D)(i) (portions pertaining to PSD for
2008 O3 and 2010 NO2 and portions
pertaining to nonattainment and
interference with maintenance for 2010
NO2), D(ii), (E), (F), (G), (H), (K), (L) and
(M).
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, our
role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory action’’
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR
3821, January 21, 2011);
• Does not impose an information
collection burden under the
provisions of the Paperwork
Reduction Act (44 U.S.C. 3501 et
seq.);
• Is certified as not having a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C.
601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, described in
the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66
FR 28355, May 22, 2001);
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• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) because application of those
requirements would be inconsistent
with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order
12898 (59 FR 7629, February 16,
1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
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. 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).
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 November 8, 2016. 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,
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Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Rules and Regulations
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements.
Dated: August 31, 2016.
Ron Curry,
Regional Administrator, Region 6.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
40 CFR part 52 is amended as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS—Texas
Provisions and Quasi-Regulatory
Measures in the Texas SIP’’ is amended
by adding entries at the end for
‘‘Infrastructure and Transport SIP
Revisions for the 2010 Nitrogen Dioxide
Standard’’ and ‘‘Infrastructure and
Transport SIP Revisions for the 2008
Ozone Standard’’ to read as follows.
§ 52.2270
2. In § 52.2270(e), the table titled
‘‘EPA Approved Nonregulatory
■
*
Identification of plan.
*
*
(e) * * *
*
*
EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP
State
submittal/
effective date
Name of SIP provision
Applicable geographic
or nonattainment area
*
Infrastructure and Transport SIP Revisions for
the 2010 Nitrogen Dioxide Standard.
Infrastructure and Transport SIP Revisions for
the 2008 Ozone
Standard.
*
*
Statewide .....................
12/7/2012
Statewide .....................
12/13/2012
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2015–0238; FRL–9951–94–
Region 1]
Air Plan Approval; Connecticut; NOX
Emission Trading Orders as Single
Source SIP Revisions
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a State
Implementation Plan (SIP) revision
submitted by the State of Connecticut.
This revision continues to allow
facilities to create and/or use emission
credits using NOX Emission Trading and
Agreement Orders (TAOs) to comply
with the NOX emission limits required
by Regulations of Connecticut State
Agencies (RCSA) section 22a-174–22
(Control of Nitrogen Oxides). The
intended effect of this action is to
approve the individual trading orders to
allow facilities to determine the most
cost-effective way to comply with the
state regulation. This action is being
taken in accordance with the Clean Air
Act (CAA).
DATES: This final rule is effective on
October 11, 2016.
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Comments
*
*
9/9/2016, [Insert Federal Register citation].
*
*
Approval for 110(a)(2)(A), (B), (C), (D)(i) (portions pertaining to nonattainment and interference with maintenance), D(ii), (E), (F), (G),
(H), (K), (L) and (M).
Approval for 110(a)(2)(A), (B), (C), (D)(i) (portion pertaining to PSD), D(ii), (E), (F), (G),
(H), (K), (L) and (M).
9/9/2016, [Insert Federal Register citation].
The EPA has established a
docket for this action under Docket ID
No. EPA–R01–OAR–2015–0238. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. 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, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available electronically through https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Donald Dahl, Air Permits, Toxics, and
Indoor Programs Unit, Office of
Ecosystem Protection, U.S.
Environmental Protection Agency, EPA
New England Regional Office, 5 Post
Office Square, Suite 100, (OEP05–2),
Boston, MA 02109–3912, phone number
(617) 918–1657, fax number (617) 918–
0657, email Dahl.Donald@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
ADDRESSES:
[FR Doc. 2016–21593 Filed 9–8–16; 8:45 am]
SUMMARY:
EPA approval date
Table of Contents
I. Summary of SIP Revision
II. Final Action
III. Statutory and Executive Order Reviews
I. Summary of SIP Revision
On November 15, 2011, the
Connecticut Department of Energy and
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Environmental Protection (CT DEEP)
submitted a formal revision to its State
Implementation Plan (SIP). This SIP
revision consists of eighty-nine sourcespecific Trading Agreement and Orders
(TAOs) that allow twenty-four
individual stationary sources of nitrogen
oxide (NOX) emissions to create and/or
trade NOX emission credits in order to
ensure more effective compliance with
EPA SIP-approved state regulations for
reducing NOX emissions. We previously
approved source-specific TAOs of the
same kind issued by CT DEEP under
this program for these same sources on
September 28, 1999 (64 FR 52233),
March 23, 2001 (66 FR 16135), and
September 9, 2013 (78 FR 54962). The
November 15, 2011 SIP submittal also
includes Consent Order 8029A issued to
Hamilton Sundstrand which addresses
Volatile Organic Compound (VOC)
emissions.
On June 15, 2016 (81 FR 38999) EPA
published a notice of proposed
rulemaking (NPR) for the State of
Connecticut’s 2011 SIP revision
submittal, proposing approval of the
TAOs, except for Consent Order 8029A.
The NPR also proposed approval of the
revised TAO 8110A issued to Yale
University. This TAO was originally
submitted as part of a July 1, 2004 SIP
revision from Connecticut, and was
modified by CT DEEP on May 29, 2015.
The rationale supporting EPA’s
proposed rulemaking action is
explained in the published NPR. The
NPR is available in the docket for this
E:\FR\FM\09SER1.SGM
09SER1
]]>Agencies
[Federal Register Volume 81, Number 175 (Friday, September 9, 2016)]
[Rules and Regulations]
[Pages 62375-62378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21593]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2012-0953; FRL-9950-77-Region 6]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Infrastructure or Requirements for the 2008 Ozone and 2010
Nitrogen Dioxide National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving
elements of State Implementation Plan (SIP) submissions from the State
of Texas for Ozone (O3) and Nitrogen Dioxide
(NO2) National Ambient Air Quality Standards (NAAQS). These
submittals address how the existing SIP provides for implementation,
maintenance, and enforcement of the 2008 O3 and 2010
NO2 NAAQS (infrastructure SIPs or i-SIPs). These i-SIPs
ensure that the State's SIP is adequate to meet the State's
responsibilities under the Federal Clean Air Act (CAA).
DATES: This rule is effective on October 11, 2016.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2012-0953. All documents in the docket are listed on
the https://www.regulations.gov Web site. 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 and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through https://www.regulations.gov or in hard copy at
the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733.
FOR FURTHER INFORMATION CONTACT: Sherry Fuerst, telephone (214) 665-
6454, fuerst.sherry@epa.gov.
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
February 8, 2016, proposal (81 FR 6483). In that document we proposed
to approve elements of SIP submittals from the State of Texas for the
2008 O3 and 2010 NO2 NAAQS. These submittals
address how the existing SIP provides for implementation, maintenance,
and enforcement of the 2008 O3 and 2010 NO2 i-
SIPs.
We received comments on the proposal submitted jointly from two
organizations. Our response to the comments are below.
II. Response to Comments
Comment: We received one set of comments--submitted jointly by the
Sierra Club and Downwinders at Risk--on the February 8, 2016 proposal
to approve certain elements of Texas's SIP submissions for the 2008
ozone and 2010 NO2 NAAQS. These comments are provided in the
docket for today's rulemaking action. The commenters contend that EPA
cannot approve the section 110(a)(2)(A) portion of Texas's 2008 ozone
infrastructure SIP submission because of Fifth Circuit ``binding
precedent'' purportedly holding this portion of the submission must
``prohibit upwind sources in Texas from significantly contributing to
nonattainment in downwind areas'' in Texas. Specifically, the
commenters contend that there are five coal-fired power plants in East
Texas that ``significantly contribute'' to Dallas-Fort Worth's ozone
nonattainment problem and that the Texas i-SIP fails to address those
emissions.
Response: We disagree with the commenters that infrastructure SIPs
must include detailed attainment and maintenance plans for all areas of
the state and must be disapproved if air quality data and modeling show
current and future nonattainment. We believe that section 110(a)(2)(A)
is reasonably interpreted to require states to submit SIPs that reflect
the first step in their planning for attaining and maintaining a new or
revised NAAQS and that they contain enforceable control measures and
demonstration that the state has the available tools and authority to
develop and implement plans to attain and maintain the NAAQS.
The commenters suggest that EPA must disapprove the Texas ozone
infrastructure SIP because of the fact that areas in Texas have air
quality data and modeling projections above or forecasting above the
standard, which proves that the infrastructure SIP is
[[Page 62376]]
inadequate. We disagree with the commenters because EPA does not
believe that section 110(a)(2)(A) requires detailed planning SIPs
demonstrating either attainment or maintenance for specific geographic
areas of the state. The infrastructure SIP is triggered by promulgation
of the NAAQS, not designation. Moreover, infrastructure SIPs are due
three years following promulgation of the NAAQS. Thus, during a
significant portion of the period that a state has available for
developing the infrastructure SIP, it does not know what the
designation will be for individual areas of the state. In light of the
structure of the CAA, our long-standing position regarding
infrastructure SIPs is that they are general planning SIPs to ensure
that the state has adequate resources and authority to implement a
NAAQS in general throughout the state and not detailed attainment and
maintenance plans for each individual area of the state.
Our interpretation that infrastructure SIPs are more general
planning SIPs is consistent with the statute as understood in light of
its history and structure. When Congress enacted the CAA in 1970, it
did not include provisions requiring states and the EPA to label areas
as attainment or nonattainment. Rather, states were required to include
all areas of the state in ``air quality control regions'' (AQCRs) and
section 110 set forth the core substantive planning provisions for
these AQCRs. At that time, Congress anticipated that states would be
able to address air pollution quickly pursuant to the very general
planning provisions in section 110 and could bring all areas in
compliance with the NAAQS within five years. Moreover, at that time,
section 110(a)(2)(A)(i) specified that the section 110 plan provide for
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the
plan must include ``emission limitations, schedules, and timetables for
compliance with such limitations and such other measures as may be
necessary to insure attainment and maintenance [of the NAAQS].'' In
1977, Congress recognized that the existing structure was not
sufficient and many areas were still violating the NAAQS. At that time,
Congress for the first time added provisions requiring states and EPA
to identify whether areas of the state were violating the NAAQS (i.e.,
were nonattainment) and established specific planning requirements in
section 172 for areas not meeting the NAAQS. In 1990, many areas still
had air quality not meeting the NAAQS and Congress again amended the
CAA and added yet another layer of more prescriptive planning
requirements for each of the NAAQS, with the primary provisions for
ozone in section 182. At that same time, Congress modified section 110
to remove references to the section 110 SIP providing for attainment,
including removing pre-existing section 110(a)(2)(A) in its entirety
and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally,
Congress replaced the clause ``as may be necessary to insure attainment
and maintenance [of the NAAQS]'' with ``as may be necessary or
appropriate to meet the applicable requirements of this chapter.''
Thus, the CAA has significantly evolved in the more than 40 years since
it was originally enacted. While at one time section 110 did provide
the only detailed SIP planning provisions for states and specified that
such plans must provide for attainment of the NAAQS, under the
structure of the current CAA, section 110 is only the initial stepping-
stone in the planning process for a specific NAAQS. More detailed,
later-enacted provisions govern the substantive planning process,
including planning for attainment of the NAAQS.
For all of these reasons, EPA disagrees with the commenters that we
must disapprove an infrastructure SIP revision if there are monitored
or forecasted violations of the standard in the state and the section
110(a)(2)(A) revision does not have detailed plans for demonstrating
how the state will bring that area into attainment. Rather we believe
that the proper inquiry at this juncture is whether the state has met
the basic structural SIP requirements appropriate at the point in time
we are acting upon the submittal.
Further, we disagree with the commenters' suggestion that the Texas
SIP does not adequately address the CAA section 110(a)(2)(A)
requirement for enforceable emission limits based on Sierra Club v.
EPA, 314 F.3d 735 (5th Cir. 2002). The commenters contend that the
Fifth Circuit's opinion in Sierra Club mandates disapproval by EPA of
this i-SIP because Texas has areas measuring nonattainment of the NAAQS
at issue. The Fifth Circuit's opinion is not ``binding precedent'' on
this point, and mandates no such disapproval.
To the extent the Fifth Circuit discussed section 110(a)(2)(A) at
all in Sierra Club, it was in dicta. The Fifth Circuit's Sierra Club
opinion primarily concerned the distinct issue of whether EPA's
``extension of the statutory date'' for Beaumont, Texas to attain the
one-hour ozone NAAQS (and approval of Texas's attainment SIP based on
that extension) complied with the CAA.\1\ The court's lone citation to
CAA section 110(a)(2)(A) appears in a portion of the opinion titled,
``Factual and Procedural Background,'' following a brief discussion of
CAA section 110(a)(2)(D)(i)(I). Read in full context, it is clear that
the court's mention of section 110(a)(2)(A) is merely a recitation of
the regulatory background, not a holding:
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\1\ See Sierra Club v. EPA, 314 F.3d 735, 739-43 (5th Cir.
2002). The case also addressed whether EPA had reasonably concluded
that no additional Reasonably Available Control Measures were
required for the Beaumont area. See id. at 743-45.
Under the CAA, states must adopt SIPs specifying emission
limitations applicable to pollution sources in order to maintain and
enforce each NAAQS. 42 U.S.C. 7410(a). SIPs are submitted to the
EPA, which may approve, conditionally approve, or disapprove the
SIPs in full or in part. Id. Sec. 7410(k). Significantly, the CAA
has a provision that requires SIPs to contain provisions regulating
emissions that ``contribute significantly to nonattainment in, or
interfere with maintenance by, any other State with respect to any
such national primary or secondary ambient air quality standard.''
Id. Sec. 7410(a)(2)(D)(i)(I). In addition, as noted in the
challenged final action, the EPA has interpreted 42 U.S.C. 7410
(a)(2)(A) as incorporating a similar requirement that an upwind area
be prohibited from contributing significantly to nonattainment in a
downwind area within the same state. See 66 FR 26,917.\2\
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\2\ Id. at 737.
This lone mention of CAA section 110(a)(2)(A) was likely because EPA
had invoked its interpretation of that section as one justification for
why it was reasonable to read the Act as permitting the relevant
deadline extension. While this passing mention of CAA section
110(a)(2)(A) was dicta, the Fifth Circuit's decision invalidating EPA's
extension policy was not: Regardless of the merits of EPA's proffered
interpretation of CAA section 110(a)(2)(A), the court held at Chevron
step one that the CAA did not authorize EPA to grant extensions of the
attainment date.\3\
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\3\ Id. at 740-41.
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The EPA interpretation mentioned off-hand in the Sierra Club
opinion--i.e., that section 110(a)(2)(A) incorporates a similar
requirement for intrastate transport as section 110(a)(2)(D)(i)(I) does
for interstate transport--is no longer the Agency's interpretation and
has not been so for quite some time.\4\ EPA's prior
[[Page 62377]]
interpretation is not ``carved in stone''; agencies are permitted to
change their interpretations.\5\ EPA's most recent interpretation of
CAA section 110(a)(2)(A) can be found in the 2013 Infrastructure SIP
Guidance,\6\ as well as relatively recent regulatory actions.\7\
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\4\ Likewise, the details of the Agency's interpretation of CAA
section 110(a)(2)(D)(i)(I) have also changed, in part guided by U.S.
Supreme Court and D.C. Circuit case law evaluating EPA's rulemakings
under that provision. See, e.g., North Carolina v. EPA, 531 F.3d 896
(D.C. Cir. 2008) (evaluating EPA's Clean Air Interstate Rule, 70 FR
25,162 (May 12, 2005); EME Homer City Generation, L.P. v. EPA, 696
F.3d 7 (D.C. Cir. 2012), rev'd 134 S. Ct. 1584 (2014), remanded to
795 F.3d 118 (D.C. Cir. 2015) (evaluating EPA's Cross-State Air
Pollution Rule, 76 FR 48208 (Aug. 8 2011)).
\5\ See Nat'l Cable and Telecomms. Ass'n v. Brand X Internet
Servs., 545 U.S. 967, 981-82 (2005) (quoting Chevron, U.S.A., Inc.
v. NRDC, 467 U.S. 863-64 (1984)).
\6\ Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).
\7\ See, e.g., 80 FR 33840.
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Even if the Fifth Circuit had not reversed the EPA's extension
policy at Chevron step one (which it did), and even if the EPA had not
subsequently changed its interpretation of CAA section 110(a)(2)(A)
(which it has), the commenters would still be incorrect in their
contention that EPA must use the same ``significant contribution''
analysis for intrastate emissions that EPA has recently used for
interstate emissions under section 110(a)(2)(D)(i)(I). That analysis is
based in part on an evaluation of ``the total `collective contribution'
'' of multiple upwind interstate sources that is captured at various
significance thresholds; \8\ it was never intended to apply in the
intrastate context. Nor does the relevant statutory phrase,
``significant contribution,'' appear in CAA section 110(a)(2)(A).
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\8\ See, e.g., 76 FR 48208, 48236-37 (Aug. 8, 2011).
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Section 110(a)(2)(A) of the CAA requires enforceable emission
limits and control measures. As noted in the 2012 Infrastructure SIP
Guidance, a different part of the CAA, part D, outlines the process,
timeframe, and substantive requirements for states to bring their
nonattainment areas into attainment. The Fifth Circuit's Sierra Club
opinion says nothing to the contrary. The court in no way ruled that
infrastructure SIPs must contain provisions prohibiting upwind
intrastate areas from ``significantly contributing'' to nonattainment
in downwind intrastate areas, or that EPA must apply the same technical
analysis to intrastate emissions as it does for interstate emissions
under a different subsection. Commenters' reliance on the Fifth
Circuit's opinion as setting forth that precedent is misplaced. In
short, we disagree that the Sierra Club opinion constitutes ``binding
precedent'' requiring us to disapprove the infrastructure SIP for CAA
section 110(a)(2)(A).
III. Final Action
We are approving elements of the (1) December 13, 2012, SIP
submittal for the State of Texas pertaining to the implementation,
maintenance and enforcement of the 2008 ozone NAAQS, and; (2) December
7, 2012, SIP submittal pertaining to the implementation, maintenance
and enforcement of the 2010 nitrogen dioxide NAAQS as outlined in our
February 8, 2016, proposal. Specifically, EPA is approving the
following infrastructure elements or portions thereof: 110(a)(2)(A),
(B), (C), (D)(i) (portions pertaining to PSD for 2008 O3 and
2010 NO2 and portions pertaining to nonattainment and
interference with maintenance for 2010 NO2), D(ii), (E),
(F), (G), (H), (K), (L) and (M).
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, our role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based on
health or safety risks subject to Executive Order 13045 (62 FR 19885,
April 23, 1997);
Is not a significant regulatory action subject to Executive
Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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. 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).
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 November 8, 2016. 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,
[[Page 62378]]
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Dated: August 31, 2016.
Ron Curry,
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. In Sec. 52.2270(e), the table titled ``EPA Approved Nonregulatory
Provisions and Quasi-Regulatory Measures in the Texas SIP'' is amended
by adding entries at the end for ``Infrastructure and Transport SIP
Revisions for the 2010 Nitrogen Dioxide Standard'' and ``Infrastructure
and Transport SIP Revisions for the 2008 Ozone Standard'' to read as
follows.
Sec. 52.2270 Identification of plan.
* * * * *
(e) * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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Applicable State
Name of SIP provision geographic or submittal/ EPA approval date Comments
nonattainment area effective date
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* * * * * * *
Infrastructure and Transport Statewide......... 12/7/2012 9/9/2016, [Insert Approval for
SIP Revisions for the 2010 Federal Register 110(a)(2)(A), (B),
Nitrogen Dioxide Standard. citation]. (C), (D)(i) (portions
pertaining to
nonattainment and
interference with
maintenance), D(ii),
(E), (F), (G), (H),
(K), (L) and (M).
Infrastructure and Transport Statewide......... 12/13/2012 9/9/2016, [Insert Approval for
SIP Revisions for the 2008 Federal Register 110(a)(2)(A), (B),
Ozone Standard. citation]. (C), (D)(i) (portion
pertaining to PSD),
D(ii), (E), (F), (G),
(H), (K), (L) and (M).
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[FR Doc. 2016-21593 Filed 9-8-16; 8:45 am]
BILLING CODE 6560-50-P
