Approval and Promulgation of Implementation Plans; Texas; El Paso Carbon Monoxide Limited Maintenance Plan, 42454-42457 [2017-18950]
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Federal Register / Vol. 82, No. 173 / Friday, September 8, 2017 / Rules and Regulations
EPA-APPROVED OHIO REGULATIONS—Continued
Ohio
effective
date
Ohio citation
Title/subject
3745–21–18 .......
Commercial motor vehicle and mobile
equipment refinishing operations.
Control of volatile organic compound emissions from aerospace manufacturing and
rework facilities.
Control of volatile organic emissions from
shipbuilding and ship repair operations
(marine coatings).
Storage of volatile organic liquids in fixed
roof tanks and external floating roof tanks.
Control of volatile organic compound emissions from offset lithographic printing and
letterpress printing facilities.
Control of volatile organic compound emissions from industrial solvent cleaning operations.
Flat wood paneling coatings .........................
3745–21–19 .......
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10/15/2015
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Miscellaneous industrial adhesives and
sealants.
Control of volatile organic compound emissions from automobile and light-duty truck
assembly coating operations, heavier vehicle assembly coating operations, and
cleaning operations associated with these
coating operations.
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Notes
10/15/2015
Control of VOC emissions from reinforced
plastic composites production operations.
Surface coating of miscellaneous metal and
plastic parts.
Boat manufacturing ......................................
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EPA approval
date
10/15/2015
10/15/2015
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Chapter 3745–110—Nitrogen Oxides—Reasonably Available Control Technology
3745–110–03 .....
RACT requirements and/or limitations for
emissions of NOX from stationary sources.
07/18/2013
9/8/2017, [insert Federal
Register citation].
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Compliance methods ....................................
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ACTION:
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Final rule.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R06–OAR–2016–0550; FRL–9966–98–
Region 6]
Approval and Promulgation of
Implementation Plans; Texas; El Paso
Carbon Monoxide Limited Maintenance
Plan
Environmental Protection
Agency (EPA).
AGENCY:
VerDate Sep<11>2014
16:18 Sep 07, 2017
Pursuant to the Federal Clean
Air Act (CAA or the Act), the
Environmental Protection Agency (EPA)
is approving the required second carbon
monoxide (CO) maintenance plan as a
revision to the Texas State
Implementation Plan (SIP). The El Paso,
Texas CO maintenance area (El Paso
Area) has been demonstrating consistent
air quality monitoring at or below 85%
of the CO National Ambient Air Quality
Standard (NAAQS or standard). Because
of this, the State of Texas, through its
designee, submitted the required second
maintenance plan for the El Paso Area
as a Limited Maintenance Plan (LMP).
SUMMARY:
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This final rule is effective on
October 10, 2017.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–R06–OAR–2016–0550. 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://
DATES:
[FR Doc. 2017–18864 Filed 9–7–17; 8:45 am]
Only the NOX emission limitation on unit P046 contained in 3745–110–03(N).
Only (A). For purposes of
demonstrating compliance
with the NOX emission limitation on unit P046 contained in 3745–110–03(N).
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Federal Register / Vol. 82, No. 173 / Friday, September 8, 2017 / Rules and Regulations
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: Jeff
Riley, 214–665–8542, riley.jeffrey@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means the EPA.
I. Background
The factual background for this action
is discussed in detail in our March 21,
2017 direct final rule and proposal (82
FR 14442, 82 FR 14499). Originally, we
issued a direct final rule to approve the
required second CO maintenance plan
for the El Paso, Texas CO maintenance
area as a revision to the Texas SIP.
However, the direct final rule and
proposal stated that if any relevant
adverse comments were received by the
end of the public comment period on
April 20, 2017, the direct final rule
would be withdrawn and we would
respond to the comments in a
subsequent final action. Relevant
adverse comments were received during
the comment period, and the direct final
rule was withdrawn on May 22, 2017
(82 FR 23148). The background
information found in the direct final is
still relevant and our March 21, 2017
proposal provides the basis for this final
action.
We received comments on our
proposal from one commenter. Our
response to the comments are below.
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II. Response to Comments
Comment 1: The Commenter states
that ‘‘(a)dditional CO monitors are
necessary to effectively monitor
compliance’’ of the CO NAAQS in the
El Paso maintenance area, and asserts
that the current El Paso CO monitoring
network operated by TCEQ is
inadequate in terms of the number,
siting, type, and scale of
representativeness of the monitors that
comprise the network.
Response 1: EPA disagrees with the
assertion that the current El Paso CO
monitoring network is inadequate to
effectively monitor compliance with the
CO NAAQS. Each state-submitted
annual monitoring network plan is
evaluated by EPA pursuant to 40 CFR
part 58.10 requirements to determine if
the criteria for implementation and
maintenance of the area’s air quality
surveillance system have been met.
Annual monitoring plans for the El Paso
area have been reviewed and ultimately
approved by EPA for the full extent of
the timeframe noted by the Commenter.
In recognition of significantly declining
CO concentrations in the El Paso Area
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since 2000, Texas has gradually reduced
and consolidated the El Paso CO
monitoring network to three sites in
2015 with approval from the EPA. The
reductions in the number of active
network monitors specifically during
the 2012–2014 timeframe were
conducted in consultation with EPA,
and were done in accordance with 40
CFR part 58.10 requirements. We have
included EPA’s responses to the State’s
annual monitoring network plans for the
years 2012–2017 in the docket for this
rulemaking.
We further note that 40 CFR
58.10(a)(1) requires that beginning July
1, 2007, the State shall adopt and
submit to the Regional Administrator an
annual monitoring network plan, and
that this annual monitoring network
plan must be made available for public
inspection for at least 30 days prior to
submission to EPA. This public
inspection period of annual monitoring
network plans has been provided by the
State for all submittals since July 1,
2007, and no adverse comments have
been received pertaining to the El Paso
Area CO monitoring network in this
time.
In the September 21, 2016 limited
maintenance plan SIP submission, the
State provided data showing monitored
CO values from 2006–2015, reflecting a
2015 8-hour CO design value of 2.8
ppm. Thus, the design value
represented for the 8-hour standard was
less than 31% of the CO NAAQS. Only
1 CO monitor is currently required for
El Paso, the Chamizal monitor (AQS
#48–141–0044) required for NCore
(National Core monitoring network)
monitoring. This is a neighborhoodscale, high CO concentration site for the
city and it recorded a 2.3 ppm 8-hour
CO design value for 2016, similar to the
2.4 ppm 8-hour CO design value for
2016 recorded at the nearby Ascarate
Park monitor to the southeast of
Chamizal. The 2.3 ppm and 2.4 ppm 8hour CO design values are significantly
below the 8-hour CO NAAQS of 9.4
ppm, representing ambient
concentrations 24% and 26%,
respectively, of the 8-hour CO NAAQS.
Both of these monitors are located in the
CO maintenance area, and we note that
these design values also represent a
continued downward trend of CO
ambient concentrations beyond the 2015
design value provided in the State’s
September 21, 2016 submittal.
The Commenter also states that the El
Paso CO LMP should include a
commitment to collocate at least one
near-road nitrogen dioxide (NO2)
monitor with a CO monitor as a
contingency should a triggering event
take place during the maintenance
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period. The basis of this argument is
twofold: EPA network design criteria
under 40 CFR part 58, Appendix D
require at least one CO monitor to
operate collocated with one required
near-road NO2 monitor in Core Based
Statistical Areas with a population of
1,000,000 or more persons. Further, the
Commenter refers to Texas Department
of State Health Services (TDSHS)
estimates that the El Paso population
will be approaching 1,000,000 as early
as 2020. The Commenter provided no
specific citation for this TDSHS data.
The 40 CFR part 58, Appendix D
standard for population data is
considered to be U.S. Census Bureau
data. Based on U.S. Census data, El Paso
will most likely not reach 1,000,000 in
population by 2028. The current
population growth estimate rate per year
for El Paso is 5,811/year based upon
U.S. Census estimates from 2010–2016.1
The 2010 estimate was 807,108 and the
2016 estimate was 841,971. Using this
growth estimate rate, the U.S. Census
data indicates that the population of El
Paso would reach around 912,000 in
2028, and would reach 1,000,000 by
roughly 2043. So, pursuant to EPA 40
CFR part 58 requirements, a near road
NO2/CO monitoring site will most likely
not be required in El Paso until well
after 2028 due to this slower growth
estimation rate. At this time and based
on the data provided, EPA does not
believe such a contingency would
provide meaningful air quality benefit to
the El Paso area.
Comment 2: The Commenter argues
that statements made by the current
EPA Administration on March 15, 2017
are an indication that the Tier 3 Motor
Vehicle Emission and Fuel Standards
may be repealed or weakened, and
therefore the state’s reliance upon these
standards as Federal control measures is
a tenuous assumption.
Response 2: We disagree with the
Commenter. The EPA Administration’s
March 15, 2017 statements do not
pertain to the Tier 3 Motor Vehicle
Emission and Fuel Standards. See 79 FR
23414 (April 28, 2014). Rather, these
statements concern reopening a midterm evaluation of the National Program
for greenhouse gas (GHG) emissions and
fuel economy standards for light-duty
vehicles, developed jointly by EPA and
the National Highway Traffic Safety
Administration (NHTSA). The Phase 2
standards of this program, applying to
model years 2017–2025, were
promulgated in the Final Rule for 2017
and Later Model Year Light-Duty
Vehicle Greenhouse Gas Emissions and
1 https://www.census.gov/data/tables/2016/demo/
popest/total-metro-and-micro-statistical-areas.html.
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Corporate Average Fuel Economy
Standards. 77 FR 62624 (October 15,
2012). This rulemaking is separate,
distinct, and independent of the action
we are addressing here. The October 15,
2012 rulemaking is therefore beyond the
scope of this rulemaking action and we
refer the Commenter to the October 15,
2012 action for further detail.
To EPA’s knowledge, no such
statements have been made concerning
implementation of the Tier 3 Motor
Vehicle Emission and Fuel Standards,
and therefore the state’s reliance upon
these standards as valid Federal control
measures is appropriate for this SIP
action. At this time, we see no legal
requirement for the state to revise the
LMP with an explicit commitment to
reevaluate its reliance thereof in the
speculative chance that a Federal
measure could be weakened or removed
some time in the future. We note that in
any case of Federal measures being
repealed or weakened, pursuant to 42
U.S.C. 7410(k)(5), the EPA has Clean Air
Act authority to require a state to revise
an approved SIP if it finds that it has
become substantially inadequate to
maintain the NAAQS. Moreover, CAA
section 175A provides the EPA
discretion to require the state to submit
a revised SIP should the area fail to
maintain the NAAQS.
Comment 3: The Commenter claims
that the El Paso CO LMP lacks an
adequate contingency plan because the
State has not identified an appropriate
trigger, and ‘‘has not identified
measures that will be promptly adopted
nor . . . identified a schedule or
procedure to implement additional
control measures.’’
Response 3: The State’s September 21,
2016 LMP submission identifies
violation of the CO NAAQS as a
contingency trigger. EPA’s
interpretation of section 175A of the
CAA, as it pertains to LMP’s for CO, is
contained in the October 6, 1995,
national guidance memorandum titled
‘‘Limited Maintenance Plan Option for
Nonclassifiable CO Nonattainment
Areas’’ from Joseph Paisie, Office of Air
Quality Planning and Standards.2 While
the Commenter correctly notes that
under EPA’s guidance, ‘‘states are
encouraged to choose a pre-violation
action level as a trigger’’, the guidance
explicitly states that a violation of the
NAAQS is an acceptable trigger.3
Further, the State has identified
2 A copy of the October 6, 1995 Guidance
Memorandum is included in the docket for this
rulemaking.
3 EPA’s September 4, 1992, John Calcagni policy
memorandum entitled ‘‘Procedures for Processing
Requests to Redesignate Areas to Attainment’’
provides further support of this interpretation.
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16:18 Sep 07, 2017
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potential contingency measures, as well
as a schedule and procedure for timely
implementation in the event of a CO
NAAQS violation.
EPA disagrees with the Commenter’s
contention that the maintenance plan’s
implementation schedules for
contingency measures fail to satisfy the
‘‘prompt response’’ requirement in CAA
section 175A(d). This section of the
CAA requires that a maintenance plan
include such contingency provisions as
the Administrator deems necessary to
assure that the state ‘‘will promptly
correct any violation’’ of the NAAQS
that occurs after redesignation of an
area. Thus, Congress gave EPA
discretion to evaluate and determine the
contingency measures that EPA ‘‘deems
necessary’’ to assure that the state will
‘‘promptly correct’’ any subsequent
violation.
Section 175A does not establish any
deadlines for implementation of
contingency measures after
redesignation to attainment. It also
provides far more latitude than does
Section 172(c)(9), which applies to a
different set of contingency measures
applicable to nonattainment areas.
Section 172(c)(9) contingency measures
must ‘‘take effect . . . without further
action by the State or [EPA].’’ By
contrast, section 175A(d) allows EPA to
take into account the need of a state to
assess, adopt, and implement
contingency measures if and when a
violation occurs after an area’s
redesignation to attainment. As noted by
the U.S. Court of Appeals for the Sixth
Circuit in Greenbaum v. EPA, 370 F.3d
527, 540 (6th Cir. 2004), that was cited
by the Commenter, the EPA ‘‘has been
granted broad discretion by Congress in
determining what is ‘necessary to
assure’ prompt correction’’ under
section 175A, and ‘‘no pre-determined
schedule for adoption of the measures is
necessary in each specific case.’’ In
making this determination, EPA
accounts for the time that is required for
states to analyze data and address the
causes and appropriate means of
remedying a violation. EPA also
considers the time required to adopt and
implement appropriate measures in
assessing what ‘‘promptly’’ means in
this context.
In the case of the El Paso Area, EPA
believes that the contingency measures
set forth in the submittal, combined
with the State’s commitment to
implement contingency measures as
expeditiously as practicable but no later
than 18 months of a trigger, provide
assurance that the State will ‘‘promptly’’
correct a future NAAQS CO violation.
Given the uncertainty regarding the
nature of the contingency measures
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required to address a violation, a State
may need up to 24 months to enact new
statutes; develop new or modified
regulations and complete notice and
comment rulemaking; or take actions
authorized by current state law that
require the purchase and installation of
equipment (e.g., diesel retrofits) or the
development and implementation of
new programs. In addition, EPA has
previously approved implementation of
contingency measures within 24 months
of a violation to comply with the
requirements of Section 175A in several
instances. See, e.g., 81 FR 76891
(November 4, 2016), 80 FR 61775
(October 14, 2015), 79 FR 67120
(November 12, 2014), 78 FR 44494 (July
24, 2013), 77 FR 34819 (June 12, 2012),
76 FR 59512 (Sept. 27, 2011), 75 FR
2091 (January 14, 2010). EPA also notes
that the Commenter did not provide any
rationale for concluding that a suggested
120-day implementation period of
control strategies is necessary to satisfy
section 175A.
III. Final Action
We are approving the CO LMP for the
El Paso Area submitted by the TCEQ on
September 21, 2016 as a revision to the
Texas SIP because the State adequately
demonstrates that the El Paso Area will
maintain the CO NAAQS and meet all
the criteria of a LMP through the second
10-year maintenance period.
IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, 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, the EPA’s role is to
approve state choices, provided that
they meet the criteria of the Clean Air
Act. 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.);
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• 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 Clean Air Act;
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 Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by November 7,
2017. 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, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Reporting
and recordkeeping requirements.
Dated: August 29, 2017.
Samuel Coleman,
Acting Regional Administrator, Region 6.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart SS—Texas
2. In § 52.2270 (e), the second table
entitled ‘‘EPA Approved Nonregulatory
Provisions and Quasi-Regulatory
Measures in the Texas SIP’’ is amended
by adding a new entry at the end of the
table for ‘‘Second 10-year Carbon
Monoxide maintenance plan (limited
maintenance plan) for the El Paso CO
area’’ to read as follows:
■
§ 52.2270
*
Identification of plan.
*
*
(e) * * *
*
*
EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP
Applicable
geographic or
nonattainment
area
Name of SIP provision
*
*
*
Second 10-year Carbon Monoxide maintenance plan (limited
maintenance plan) for the El Paso CO area.
*
*
*
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*
ACTION:
[FR Doc. 2017–18950 Filed 9–7–17; 8:45 am]
ENVIRONMENTAL PROTECTION
AGENCY
sradovich on DSK3GMQ082PROD with RULES
40 CFR Part 52
[EPA–R10–OAR–2015–0131: FRL–9967–21–
Region 10]
Air Plan Approval; AK, Fairbanks North
Star Borough; 2006 PM2.5 Moderate
Area Plan
Environmental Protection
Agency (EPA).
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9/21/2016
Final rule.
The Environmental Protection
Agency (EPA) is approving state
implementation plan (SIP) revisions
submitted by the State of Alaska (Alaska
or the State) to address Clean Air Act
(CAA or Act) requirements for the 2006
24-hour fine particulate matter (PM2.5)
national ambient air quality standards
(NAAQS) in the Fairbanks North Star
Borough Moderate PM2.5 nonattainment
area (FNSB NAA). Alaska submitted an
attainment plan for the FNSB NAA on
December 31, 2014, to meet applicable
requirements for an area classified as
‘‘Moderate’’ nonattainment, and made
additional submissions and provided
SUMMARY:
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AGENCY:
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El Paso, TX ....
State
submittal/
effective date
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EPA approval date
*
9/8/2017, [Insert Federal Register citation].
Comments
*
clarifying information to supplement
the attainment plan in January 2015,
March 2015, July 2015, November 2015,
March 2016, November 2016, and
January 2017 (hereafter, the initial
submission and all supplemental and
clarifying information will be
collectively referred to as ‘‘the FNSB
Moderate Plan’’).
DATES: This action is effective on
October 10, 2017.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–R10–OAR–2015–0131. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
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]]>Agencies
[Federal Register Volume 82, Number 173 (Friday, September 8, 2017)]
[Rules and Regulations]
[Pages 42454-42457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18950]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2016-0550; FRL-9966-98-Region 6]
Approval and Promulgation of Implementation Plans; Texas; El Paso
Carbon Monoxide Limited Maintenance Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving the required second
carbon monoxide (CO) maintenance plan as a revision to the Texas State
Implementation Plan (SIP). The El Paso, Texas CO maintenance area (El
Paso Area) has been demonstrating consistent air quality monitoring at
or below 85% of the CO National Ambient Air Quality Standard (NAAQS or
standard). Because of this, the State of Texas, through its designee,
submitted the required second maintenance plan for the El Paso Area as
a Limited Maintenance Plan (LMP).
DATES: This final rule is effective on October 10, 2017.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2016-0550. 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://
[[Page 42455]]
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: Jeff Riley, 214-665-8542,
riley.jeffrey@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
The factual background for this action is discussed in detail in
our March 21, 2017 direct final rule and proposal (82 FR 14442, 82 FR
14499). Originally, we issued a direct final rule to approve the
required second CO maintenance plan for the El Paso, Texas CO
maintenance area as a revision to the Texas SIP.
However, the direct final rule and proposal stated that if any
relevant adverse comments were received by the end of the public
comment period on April 20, 2017, the direct final rule would be
withdrawn and we would respond to the comments in a subsequent final
action. Relevant adverse comments were received during the comment
period, and the direct final rule was withdrawn on May 22, 2017 (82 FR
23148). The background information found in the direct final is still
relevant and our March 21, 2017 proposal provides the basis for this
final action.
We received comments on our proposal from one commenter. Our
response to the comments are below.
II. Response to Comments
Comment 1: The Commenter states that ``(a)dditional CO monitors are
necessary to effectively monitor compliance'' of the CO NAAQS in the El
Paso maintenance area, and asserts that the current El Paso CO
monitoring network operated by TCEQ is inadequate in terms of the
number, siting, type, and scale of representativeness of the monitors
that comprise the network.
Response 1: EPA disagrees with the assertion that the current El
Paso CO monitoring network is inadequate to effectively monitor
compliance with the CO NAAQS. Each state-submitted annual monitoring
network plan is evaluated by EPA pursuant to 40 CFR part 58.10
requirements to determine if the criteria for implementation and
maintenance of the area's air quality surveillance system have been
met. Annual monitoring plans for the El Paso area have been reviewed
and ultimately approved by EPA for the full extent of the timeframe
noted by the Commenter. In recognition of significantly declining CO
concentrations in the El Paso Area since 2000, Texas has gradually
reduced and consolidated the El Paso CO monitoring network to three
sites in 2015 with approval from the EPA. The reductions in the number
of active network monitors specifically during the 2012-2014 timeframe
were conducted in consultation with EPA, and were done in accordance
with 40 CFR part 58.10 requirements. We have included EPA's responses
to the State's annual monitoring network plans for the years 2012-2017
in the docket for this rulemaking.
We further note that 40 CFR 58.10(a)(1) requires that beginning
July 1, 2007, the State shall adopt and submit to the Regional
Administrator an annual monitoring network plan, and that this annual
monitoring network plan must be made available for public inspection
for at least 30 days prior to submission to EPA. This public inspection
period of annual monitoring network plans has been provided by the
State for all submittals since July 1, 2007, and no adverse comments
have been received pertaining to the El Paso Area CO monitoring network
in this time.
In the September 21, 2016 limited maintenance plan SIP submission,
the State provided data showing monitored CO values from 2006-2015,
reflecting a 2015 8-hour CO design value of 2.8 ppm. Thus, the design
value represented for the 8-hour standard was less than 31% of the CO
NAAQS. Only 1 CO monitor is currently required for El Paso, the
Chamizal monitor (AQS #48-141-0044) required for NCore (National Core
monitoring network) monitoring. This is a neighborhood-scale, high CO
concentration site for the city and it recorded a 2.3 ppm 8-hour CO
design value for 2016, similar to the 2.4 ppm 8-hour CO design value
for 2016 recorded at the nearby Ascarate Park monitor to the southeast
of Chamizal. The 2.3 ppm and 2.4 ppm 8-hour CO design values are
significantly below the 8-hour CO NAAQS of 9.4 ppm, representing
ambient concentrations 24% and 26%, respectively, of the 8-hour CO
NAAQS. Both of these monitors are located in the CO maintenance area,
and we note that these design values also represent a continued
downward trend of CO ambient concentrations beyond the 2015 design
value provided in the State's September 21, 2016 submittal.
The Commenter also states that the El Paso CO LMP should include a
commitment to collocate at least one near-road nitrogen dioxide
(NO2) monitor with a CO monitor as a contingency should a
triggering event take place during the maintenance period. The basis of
this argument is twofold: EPA network design criteria under 40 CFR part
58, Appendix D require at least one CO monitor to operate collocated
with one required near-road NO2 monitor in Core Based
Statistical Areas with a population of 1,000,000 or more persons.
Further, the Commenter refers to Texas Department of State Health
Services (TDSHS) estimates that the El Paso population will be
approaching 1,000,000 as early as 2020. The Commenter provided no
specific citation for this TDSHS data.
The 40 CFR part 58, Appendix D standard for population data is
considered to be U.S. Census Bureau data. Based on U.S. Census data, El
Paso will most likely not reach 1,000,000 in population by 2028. The
current population growth estimate rate per year for El Paso is 5,811/
year based upon U.S. Census estimates from 2010-2016.\1\ The 2010
estimate was 807,108 and the 2016 estimate was 841,971. Using this
growth estimate rate, the U.S. Census data indicates that the
population of El Paso would reach around 912,000 in 2028, and would
reach 1,000,000 by roughly 2043. So, pursuant to EPA 40 CFR part 58
requirements, a near road NO2/CO monitoring site will most
likely not be required in El Paso until well after 2028 due to this
slower growth estimation rate. At this time and based on the data
provided, EPA does not believe such a contingency would provide
meaningful air quality benefit to the El Paso area.
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\1\ https://www.census.gov/data/tables/2016/demo/popest/total-metro-and-micro-statistical-areas.html.
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Comment 2: The Commenter argues that statements made by the current
EPA Administration on March 15, 2017 are an indication that the Tier 3
Motor Vehicle Emission and Fuel Standards may be repealed or weakened,
and therefore the state's reliance upon these standards as Federal
control measures is a tenuous assumption.
Response 2: We disagree with the Commenter. The EPA
Administration's March 15, 2017 statements do not pertain to the Tier 3
Motor Vehicle Emission and Fuel Standards. See 79 FR 23414 (April 28,
2014). Rather, these statements concern reopening a mid-term evaluation
of the National Program for greenhouse gas (GHG) emissions and fuel
economy standards for light-duty vehicles, developed jointly by EPA and
the National Highway Traffic Safety Administration (NHTSA). The Phase 2
standards of this program, applying to model years 2017-2025, were
promulgated in the Final Rule for 2017 and Later Model Year Light-Duty
Vehicle Greenhouse Gas Emissions and
[[Page 42456]]
Corporate Average Fuel Economy Standards. 77 FR 62624 (October 15,
2012). This rulemaking is separate, distinct, and independent of the
action we are addressing here. The October 15, 2012 rulemaking is
therefore beyond the scope of this rulemaking action and we refer the
Commenter to the October 15, 2012 action for further detail.
To EPA's knowledge, no such statements have been made concerning
implementation of the Tier 3 Motor Vehicle Emission and Fuel Standards,
and therefore the state's reliance upon these standards as valid
Federal control measures is appropriate for this SIP action. At this
time, we see no legal requirement for the state to revise the LMP with
an explicit commitment to reevaluate its reliance thereof in the
speculative chance that a Federal measure could be weakened or removed
some time in the future. We note that in any case of Federal measures
being repealed or weakened, pursuant to 42 U.S.C. 7410(k)(5), the EPA
has Clean Air Act authority to require a state to revise an approved
SIP if it finds that it has become substantially inadequate to maintain
the NAAQS. Moreover, CAA section 175A provides the EPA discretion to
require the state to submit a revised SIP should the area fail to
maintain the NAAQS.
Comment 3: The Commenter claims that the El Paso CO LMP lacks an
adequate contingency plan because the State has not identified an
appropriate trigger, and ``has not identified measures that will be
promptly adopted nor . . . identified a schedule or procedure to
implement additional control measures.''
Response 3: The State's September 21, 2016 LMP submission
identifies violation of the CO NAAQS as a contingency trigger. EPA's
interpretation of section 175A of the CAA, as it pertains to LMP's for
CO, is contained in the October 6, 1995, national guidance memorandum
titled ``Limited Maintenance Plan Option for Nonclassifiable CO
Nonattainment Areas'' from Joseph Paisie, Office of Air Quality
Planning and Standards.\2\ While the Commenter correctly notes that
under EPA's guidance, ``states are encouraged to choose a pre-violation
action level as a trigger'', the guidance explicitly states that a
violation of the NAAQS is an acceptable trigger.\3\ Further, the State
has identified potential contingency measures, as well as a schedule
and procedure for timely implementation in the event of a CO NAAQS
violation.
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\2\ A copy of the October 6, 1995 Guidance Memorandum is
included in the docket for this rulemaking.
\3\ EPA's September 4, 1992, John Calcagni policy memorandum
entitled ``Procedures for Processing Requests to Redesignate Areas
to Attainment'' provides further support of this interpretation.
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EPA disagrees with the Commenter's contention that the maintenance
plan's implementation schedules for contingency measures fail to
satisfy the ``prompt response'' requirement in CAA section 175A(d).
This section of the CAA requires that a maintenance plan include such
contingency provisions as the Administrator deems necessary to assure
that the state ``will promptly correct any violation'' of the NAAQS
that occurs after redesignation of an area. Thus, Congress gave EPA
discretion to evaluate and determine the contingency measures that EPA
``deems necessary'' to assure that the state will ``promptly correct''
any subsequent violation.
Section 175A does not establish any deadlines for implementation of
contingency measures after redesignation to attainment. It also
provides far more latitude than does Section 172(c)(9), which applies
to a different set of contingency measures applicable to nonattainment
areas. Section 172(c)(9) contingency measures must ``take effect . . .
without further action by the State or [EPA].'' By contrast, section
175A(d) allows EPA to take into account the need of a state to assess,
adopt, and implement contingency measures if and when a violation
occurs after an area's redesignation to attainment. As noted by the
U.S. Court of Appeals for the Sixth Circuit in Greenbaum v. EPA, 370
F.3d 527, 540 (6th Cir. 2004), that was cited by the Commenter, the EPA
``has been granted broad discretion by Congress in determining what is
`necessary to assure' prompt correction'' under section 175A, and ``no
pre-determined schedule for adoption of the measures is necessary in
each specific case.'' In making this determination, EPA accounts for
the time that is required for states to analyze data and address the
causes and appropriate means of remedying a violation. EPA also
considers the time required to adopt and implement appropriate measures
in assessing what ``promptly'' means in this context.
In the case of the El Paso Area, EPA believes that the contingency
measures set forth in the submittal, combined with the State's
commitment to implement contingency measures as expeditiously as
practicable but no later than 18 months of a trigger, provide assurance
that the State will ``promptly'' correct a future NAAQS CO violation.
Given the uncertainty regarding the nature of the contingency measures
required to address a violation, a State may need up to 24 months to
enact new statutes; develop new or modified regulations and complete
notice and comment rulemaking; or take actions authorized by current
state law that require the purchase and installation of equipment
(e.g., diesel retrofits) or the development and implementation of new
programs. In addition, EPA has previously approved implementation of
contingency measures within 24 months of a violation to comply with the
requirements of Section 175A in several instances. See, e.g., 81 FR
76891 (November 4, 2016), 80 FR 61775 (October 14, 2015), 79 FR 67120
(November 12, 2014), 78 FR 44494 (July 24, 2013), 77 FR 34819 (June 12,
2012), 76 FR 59512 (Sept. 27, 2011), 75 FR 2091 (January 14, 2010). EPA
also notes that the Commenter did not provide any rationale for
concluding that a suggested 120-day implementation period of control
strategies is necessary to satisfy section 175A.
III. Final Action
We are approving the CO LMP for the El Paso Area submitted by the
TCEQ on September 21, 2016 as a revision to the Texas SIP because the
State adequately demonstrates that the El Paso Area will maintain the
CO NAAQS and meet all the criteria of a LMP through the second 10-year
maintenance period.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, 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, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
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.);
[[Page 42457]]
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 Clean Air Act; 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 7, 2017. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: August 29, 2017.
Samuel Coleman,
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. In Sec. 52.2270 (e), the second table entitled ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas
SIP'' is amended by adding a new entry at the end of the table for
``Second 10-year Carbon Monoxide maintenance plan (limited maintenance
plan) for the El Paso CO area'' to read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(e) * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
Applicable State
Name of SIP provision geographic or submittal/ EPA approval date Comments
nonattainment area effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Second 10-year Carbon Monoxide El Paso, TX........ 9/21/2016 9/8/2017, [Insert ...................
maintenance plan (limited Federal Register
maintenance plan) for the El citation].
Paso CO area.
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* * * * *
[FR Doc. 2017-18950 Filed 9-7-17; 8:45 am]
BILLING CODE 6560-50-P
