Approval and Promulgation of Implementation Plans; Texas; Interstate Transport Requirements for the 1997 Ozone National Ambient Air Quality Standards, 49894-49897 [2018-21448]

Download as PDF 49894 Federal Register / Vol. 83, No. 192 / Wednesday, October 3, 2018 / Proposed Rules daltland on DSKBBV9HB2PROD with PROPOSALS take appropriate action. If we propose to limit the duration of our approval of the budgets in the 2016 PM2.5 Plan, we will provide the public an opportunity to comment. The duration of our approval of the submitted budgets will not be limited until we complete such a rulemaking. VI. Summary of Proposed Actions and Request for Public Comment Under CAA section 110(k)(3), the EPA is proposing to approve SIP revisions submitted by California to address the Act’s Serious area planning requirements for the 2006 PM2.5 NAAQS in the South Coast nonattainment area. Specifically, the EPA is proposing to approve the following elements of the 2016 PM2.5 Plan: 1. A comprehensive, accurate, current inventory of actual emissions from all sources of PM2.5 and PM2.5 precursors in the area (CAA section 172(c)(3)); 2. Provisions to assure that BACM, including BACT, for the control of direct PM2.5 and PM2.5 precursors shall be implemented no later than 4 years after the area is reclassified (CAA section 189(b)(1)(B)); 3. A demonstration (including air quality modeling) that the plan provides for attainment as expeditiously as practicable but no later than December 31, 2019 (CAA sections 188(c)(2) and 189(b)(1)(A)); 4. Plan provisions that require RFP (CAA section 172(c)(2)); 5. Quantitative milestones that are to be achieved every 3 years until the area is redesignated attainment and which demonstrate RFP toward attainment by the applicable date (CAA section 189(c)); and 6. 2017 and 2019 motor vehicle emissions budgets, as shown in Table 6 of this proposed rule, because they are derived from an approvable RFP plan and attainment demonstration and meet the requirements of CAA section 176(c) and 40 CFR part 93, subpart A. The EPA is also proposing to approve the interpollutant trading mechanism provided in the 2016 PM2.5 Plan and clarified in a March 14, 2018 letter from the District for use in transportation conformity analyses for the 2006 PM2.5 NAAQS, in accordance with 40 CFR 93.124. We are not proposing any action at this time on the attainment contingency measure component of the 2016 PM2.5 Plan. Finally, the EPA is proposing to find that the requirement for contingency measures to be undertaken if the area fails to make reasonable further progress under CAA section 172(c)(9) is moot as applied to the 2017 milestone year, because the State and District have demonstrated to VerDate Sep<11>2014 17:23 Oct 02, 2018 Jkt 247001 the EPA’s satisfaction that the 2017 milestones have been met. We will accept comments from the public on these proposals for the next 30 days. The deadline and instructions for submission of comments are provided in the DATES and ADDRESSES sections at the beginning of this preamble. VII. 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 proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed 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); • is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866; • 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, as 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 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 • does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, 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 the 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). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Ammonia, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: September 24, 2018. Deborah Jordan, Acting Regional Administrator, Region 9. [FR Doc. 2018–21560 Filed 10–2–18; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R06–OAR–2008–0408; FRL–9984– 28—Region 6] Approval and Promulgation of Implementation Plans; Texas; Interstate Transport Requirements for the 1997 Ozone National Ambient Air Quality Standards Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is proposing to approve portions of two Texas State Implementation Plan (SIP) submittals that pertain to the good neighbor and interstate transport requirements of the CAA with respect to the 1997 ozone National Ambient Air Quality Standards (NAAQS). The good neighbor provision requires each state, in its SIP, to prohibit emissions that will significantly contribute to nonattainment, or interfere with maintenance, of a NAAQS in other states. In this action, EPA is proposing SUMMARY: E:\FR\FM\03OCP1.SGM 03OCP1 daltland on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 83, No. 192 / Wednesday, October 3, 2018 / Proposed Rules to approve the Texas SIP submittals as having met the requirements of the good neighbor provision for the 1997 ozone NAAQS in accordance with section 110 of the CAA. DATES: Written comments must be received on or before November 2, 2018. ADDRESSES: Submit your comments, identified by Docket No. EPA–R06– OAR–2008–0408, at https:// www.regulations.gov or via email to young.carl@epa.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact Carl Young, 214–665–6645, young.carl@epa.gov. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https:// www2.epa.gov/dockets/commentingepa-dockets. Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI). FOR FURTHER INFORMATION CONTACT: Carl Young, 214–665–6645, young.carl@ epa.gov. To inspect the hard copy materials, please schedule an appointment with Mr. Young or Mr. Bill Deese at 214–665–7253. SUPPLEMENTARY INFORMATION: Throughout this document wherever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the EPA. health and public welfare. In 1997, we established new 8-hour primary and secondary ozone NAAQS of 0.08 parts per million (62 FR 38856, July 18, 1997).1 Ground level ozone is formed when nitrogen oxides (NOX) and volatile organic compounds (VOCs) react in the presence of sunlight. Section 110(a)(1) of the CAA requires states to submit, within three years after promulgation of a new or revised standard, SIPs meeting the applicable ‘‘infrastructure’’ elements set forth in Section 110(a)(2). One of these applicable infrastructure elements, CAA section 110(a)(2)(D)(i), requires SIPs to contain ‘‘good neighbor’’ provisions to prohibit certain adverse air quality effects on neighboring states due to interstate transport of pollution. There are four sub-elements within CAA section 110(a)(2)(D)(i). This action reviews how the first two sub-elements of the good neighbor provisions at CAA section 110(a)(2)(D)(i)(I) were addressed in the infrastructure SIP submittals from Texas for the 1997 8-hour ozone NAAQS. These sub-elements require that each SIP for a new or revised NAAQS contain adequate provisions to prohibit any emissions activity within the state from emitting air pollutants that will ‘‘contribute significantly to nonattainment’’ or ‘‘interfere with maintenance’’ of the applicable air quality standard in any other state. The EPA has addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 8-hour ozone NAAQS in several past regulatory actions. Most relevant to this action, we promulgated the Clean Air Interstate Rule (CAIR) in 2005 to address the requirements of the good neighbor provision for the 1997 fine particulate PM2.5 and 1997 ozone NAAQS (May 12, 2005, 70 FR 25172). While Texas was included in CAIR with respect to the 1997 PM2.5 NAAQS, we determined that Texas would not significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone NAAQS in other states. However, CAIR was remanded by the D.C. Circuit in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on reh’g, 550 F.3d 1176. The court determined that CAIR was ‘‘fundamentally flawed’’ and ordered EPA to ‘‘redo its analysis from the ground up.’’ 531 F.3d at 929. In 2011 we promulgated the CrossState Air Pollution Rule (CSAPR) to I. Background A. The 1997 8-Hour Ozone NAAQS and Interstate Transport of Air Pollution Under section 109 of the CAA, we establish NAAQS to protect human VerDate Sep<11>2014 17:23 Oct 02, 2018 Jkt 247001 1 In 2008, we revised the 8-hour ozone NAAQS to 0.075 ppm (73 FR 16436, March 27, 2008) and in 2015 we revised the 8-hour ozone NAAQS to 0.070 ppm (80 FR 65292, October 26, 2015). This proposal pertains to the 1997 8-hour ozone NAAQS only. PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 49895 address the remand of CAIR.2 CSAPR addressed the state and federal obligations under CAA section 110(a)(2)(D)(i)(I) to prohibit air pollution contributing significantly to nonattainment in, or interfering with maintenance by, any other state with regard to the 1997 8-hour ozone NAAQS and the 1997 annual PM2.5 NAAQS, as well as the 2006 24-hour PM2.5 NAAQS. To address Texas’ transport obligation under CAA section 110(a)(2)(D)(i)(I) with regard to the 1997 8-hour ozone NAAQS, CSAPR established Federal Implementation Plan (FIP) requirements for affected electric generating units (EGUs) in Texas, including an emissions budget that applied to the EGUs’ collective ozone-season emissions of NOX. The CSAPR budgets were to be implemented in two phases, with phase 1 to be implemented beginning with the 2012 ozone season and phase 2 to be implemented beginning with the 2014 ozone season.3 Due to litigation, phase 1 of CSAPR was not implemented until 2015 and phase 2 was set to be implemented beginning in 2017. (81 FR 13275, March 14, 2016). In subsequent litigation (See generally EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. Ct. App. 2015) (‘‘EME Homer City II’’ herein)), the court reviewed our ability to regulate interstate air pollution pursuant to the good neighbor provision. The court in EME Homer City II declared the CSAPR phase 2 ozone season emission budgets of 11 states invalid, including Texas, holding that those budgets overcontrol with respect to the downwind air quality problems to which those states were linked for the 1997 ozone NAAQS.4 In our response to Homer City II, we addressed Texas’s ozone-season emissions budget in the regulation, 2 Federal Implementation Plans; Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR 48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and 52.39 and 40 CFR part 97). 3 However, the implementation of the emissions budgets was stayed by the D.C. Circuit in December 2011 pending further litigation. The D.C. Circuit initially issued a decision in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012) (EME Homer City I), vacating CSAPR, but in April 2014, the Supreme Court issued a opinion reversing the D.C. Circuit and remanding the case for further proceedings. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1600–01 (2014). After the Supreme Court issued its decision, the D.C. Circuit granted a motion from EPA to lift the stay and toll the compliance timeframes by three years. See Respondents’ Motion to Lift the Stay Entered on December 30, 2011, Document #1499505, EME Homer City Generation, L.P. v. EPA, No. 11–1302 (D.C. Cir. filed June 26, 2014); Order, Document #1518738, EME Homer City Generation, L.P. v. EPA, No. 11–1302 (D.C. Cir. issued Oct. 23, 2014). 4 EME Homer City II, 795 F.3d at 129–30, 138 (D.C. Cir. Ct. App. 2015). E:\FR\FM\03OCP1.SGM 03OCP1 daltland on DSKBBV9HB2PROD with PROPOSALS 49896 Federal Register / Vol. 83, No. 192 / Wednesday, October 3, 2018 / Proposed Rules CSAPR Update, which was promulgated in 2016 to address the requirements of the good neighbor provision for the 2008 ozone NAAQS.5 In the original 2011 CSAPR, EPA noted that the reductions for 11 states, including Texas, may not be sufficient to fully eliminate all significant contribution to nonattainment or interference with maintenance for certain downwind areas with respect to the 1997 ozone NAAQS because EPA’s analysis projected continued nonattainment and maintenance problems at downwind receptors to which these upwind states were linked after implementation of the CSAPR trading programs. Specifically, exceedances were expected in Baton Rouge, Louisiana; Houston, Texas; and Allegan, Michigan according to the remedy case modeling conducted for the original CSAPR rule. The CSAPR Update used 2017 as the analytic year for the air quality modeling to determine nonattainment and maintenance receptors and states linked to those receptors. We evaluated this 2017 modeling to determine whether additional emission reductions would be needed in these 11 states, including Texas, to address the states’ full good neighbor obligation for the 1997 ozone NAAQS. Despite our conclusion in the 2011 CSAPR that the 1997 ozone transport problems to which Texas was linked were not fully resolved, the court concluded in EME Homer City II that the ozone season emission budget finalized for Texas may result in over-control as to the ozone air quality problems to which the state was linked. 795 F.3d at 129–30. In response to this determination, we removed Texas’s phase 2 ozone season budget as a constraint in the 2017 air quality modeling conducted for the CSAPR Update. EPA concluded that, even in the absence of this constraint, the 2017 air quality modeling shows that the predicted average design values (DVs) 6 used to identify nonattainment receptors and the maximum DVs used to identify maintenance receptors would both be below the level of the 1997 ozone NAAQS for the downwind receptors of concern to which Texas was linked in the original CSAPR rulemaking with respect the 1997 ozone NAAQS. Accordingly, we found that Texas emissions would no longer contribute significantly to nonattainment in, or interfere with maintenance by, any other state with 5 CSAPR Update Rule for the 2008 ozone NAAQS, 81 FR 74504, October 26, 2016. 6 DVs are used to determine whether a NAAQS is being met. VerDate Sep<11>2014 17:23 Oct 02, 2018 Jkt 247001 respect to the 1997 ozone NAAQS. (See generally, 81 FR 74504). Consistent with this finding, we removed the FIP requirements associated with the 1997 ozone NAAQS, and sources in Texas were no longer subject to the phase 2 ozone season budget calculated to address that standard. See 40 CFR 52.38(b)(2)(ii) (relieving sources in Texas of the obligation to comply with the remanded phase 2 ozone season emission budgets after 2016).7 B. Texas SIP Submittals Pertaining to the 1997 8-Hour Ozone NAAQS and Interstate Transport of Air Pollution Texas made the following SIP submittals to address CAA requirements to prohibit emissions which will significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone NAAQS in other states: (1) An April 4, 2008 submittal stating that the state had addressed any potential CAA section 110(a)(2) infrastructure issues associated with the 1997 ozone NAAQS, including the first two sub-elements for interstate transport in (CAA section 110(a)(2)(D)(i)(I)) and (2) a separate, but similar May 1, 2008 submittal which discussed how the first two subelements of the good neighbor provision were addressed with respect to the 1997 ozone standards. For the reasons described below, this action proposes to approve the state’s two SIP submittals with respect to the state’s conclusions regarding the first two sub-elements of the good neighbor provisions at CAA section 110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS. See Docket No. EPA– R06–OAR–2008–0408 in www.regulations.gov. II. The EPA’s Evaluation Each of the above-referenced Texas SIP submittals relied on (1) EPA’s CAIR modeling document, ‘‘Technical Support Document for the Final Clean Air Interstate Rule—Air Quality Modeling, March 2005’’ 8 and (2) emission controls found in the Texas SIP to support a conclusion that the Texas SIP had adequate provisions to prohibit emissions which will significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone NAAQS in any other state. The SIP submittals rely on the conclusion in the CAIR rulemaking that Texas would not 7 EPA notes that, because Texas was linked to downwind air quality problems with respect to the 2008 ozone NAAQS in its analysis, the EPA promulgated a new ozone season NOX emission budget to address that standard at 40 CFR 97.810(a). 8 Document EPA–HQ–OAR–2003–0053–2151 in regulations.gov. PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone NAAQS in downwind states. While CAIR was still in place at the time the state submitted its SIPs, as discussed above, the rule was remanded by the D.C. Circuit in 2008 because the court found it was ‘‘fundamentally flawed’’ and must be replaced ‘‘from the ground up.’’ North Carolina, 531 F.3d at 929–30. Accordingly, we cannot approve the state’s SIP submittals based on the CAIR analysis. However, more recent information provides support for our proposed approval of the conclusions in the SIP submittals that the state will not significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone NAAQS in any other state. The updated air quality modeling conducted for the original CSAPR rulemaking projected the effect of emissions on ambient air quality monitors (receptors). The modeling projected that in 2012: (1) A receptor located in East Baton Rouge Parish, Louisiana (monitor ID 220330003) would have difficulty attaining and maintaining the 1997 8-hour ozone NAAQS; and, (2) A receptor located in Allegan County, Michigan (monitor ID 260050003) would have difficulty maintaining the 1997 8-hour ozone NAAQS (76 FR 48208, 48236, August 8, 2011). The modeling also showed that Texas emissions were projected to contribute more than the threshold amount of ozone pollution necessary to be considered ‘‘linked’’ to these receptors for the 1997 8-hour ozone NAAQS (76 FR 48208, 48246, August 8, 2011). These were the only ozone receptors with projected air quality problems to which Texas was found to be linked. In CSAPR we used air quality projections for the year 2012, which was also the intended start year for implementation of the CSAPR Phase 1 EGU emission budgets, to identify receptors projected to have air quality problems. The CSAPR final rule record also contained air quality projections for 2014, which was the intended start year for implementation of the CSAPR Phase 2 EGU emission budgets. The 2014 modeling results projected that before considering the emissions reductions anticipated from implementation of CSAPR: (1) The East Baton Parish receptor would have an average 8-hour ozone DV of 84.1 parts per billion (ppb) and a maximum DV of 87.7 ppb; and, (2) The Allegan County, Michigan E:\FR\FM\03OCP1.SGM 03OCP1 Federal Register / Vol. 83, No. 192 / Wednesday, October 3, 2018 / Proposed Rules daltland on DSKBBV9HB2PROD with PROPOSALS would have maximum DV of 83.6 ppb.9 We used a value of 85 ppb to determine whether a particular ozone receptor should be identified as having air quality problems that may trigger transport obligations in upwind states with regard to the 1997 8-hour ozone NAAQS (76 FR 48208, 48236). The 2014 modeling results show that the Allegan County, Michigan monitor which Texas was linked to in the 2012 modeling was no longer projected to have air quality problems sufficient to trigger transport obligations with regard to the 1997 8-hour ozone NAAQS. Thus, Texas was no longer projected to interfere with maintenance of the 1997 ozone NAAQS at the Allegan County receptor in 2014. However, the 2014 modeling results continued to project that the East Baton Parish receptor would have problems maintaining the 1997 ozone NAAQS. As discussed above, in response to the remand of Texas’s CSAPR phase 2 ozone season budget by the D.C. Circuit in EME Homer City II, EPA reviewed the 2017 air quality modeling conducted for the CSAPR Update. EPA concluded that, even in the absence of Texas’s CSAPR budget, both the Baton Rouge and Allegan receptors would have average and maximum DVs below the level of the 1997 ozone NAAQS for the downwind receptors of concern to which Texas was linked in the original CSAPR rulemaking with respect the 1997 ozone NAAQS. Accordingly, EPA found that Texas emissions would no longer contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to the 1997 ozone NAAQS at either receptor or in any other state. (81 FR 74525–26). This conclusion is based on EPA’s most recent modeling analysis and is supported by the fact that the Baton Rouge area has monitored attainment of the 1997 ozone standard since 2008. III. Proposed Action We are proposing to approve the portions of the April 4, 2008 and May 1, 2008 Texas SIP submittals as they pertain to the requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS. We propose to find that the conclusion in the state’s SIP submittals is consistent with EPA’s conclusion regarding the Texas’s good neighbor obligation, that emissions from Texas will not significantly contribute 9 See projected 2014 base case average and maximum DVs for these monitors at pages B–14 and B–16 of the June 2011 Air Quality Modeling Final Rule Technical Support Document for CSAPR, Document ID No. EPA–HQ–OAR–2009–0491–4140, available in regulations.gov. VerDate Sep<11>2014 17:23 Oct 02, 2018 Jkt 247001 to nonattainment or interfere with maintenance of the 1997 ozone NAAQS in any other state. 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, the EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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); • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866; • 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, as 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). PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 49897 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 proposed 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). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Ozone. Authority: 42 U.S.C. 7401 et seq. Dated: September 26, 2018. Anne Idsal, Regional Administrator, Region 6. [FR Doc. 2018–21448 Filed 10–2–18; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA–R05–OAR–2018–0600; FRL–9984– 56—Region 5] Air Plan Approval; Indiana; Negative Declarations for Commercial and Industrial Solid Waste Incineration and Sewage Sludge Incineration Units for Designated Facilities and Pollutants Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is notifying the public that we have received from Indiana requests for withdrawals of the previously approved state plans and notification of negative declarations for Commercial and Industrial Solid Waste Incineration (CISWI) units and Sewage Sludge Incineration (SSI) units. The Indiana Department of Environmental Management (IDEM) submitted its CISWI withdrawal and negative declaration by letter dated July 31, 2017 and its SSI withdrawal and negative declaration by letter dated July 31, 2017. IDEM notified EPA in its negative declaration letters that there are no CISWI or SSI units subject to the requirements of the Clean Air Act (Act) currently operating in Indiana. DATES: Comments must be received on or before November 2, 2018. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R05– OAR–2018–0600, at https:// www.regulations.gov or via email to cain.alexis@epa.gov. For comments SUMMARY: E:\FR\FM\03OCP1.SGM 03OCP1

Agencies

[Federal Register Volume 83, Number 192 (Wednesday, October 3, 2018)]
[Proposed Rules]
[Pages 49894-49897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21448]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0408; FRL-9984-28--Region 6]


Approval and Promulgation of Implementation Plans; Texas; 
Interstate Transport Requirements for the 1997 Ozone National Ambient 
Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is proposing to approve portions 
of two Texas State Implementation Plan (SIP) submittals that pertain to 
the good neighbor and interstate transport requirements of the CAA with 
respect to the 1997 ozone National Ambient Air Quality Standards 
(NAAQS). The good neighbor provision requires each state, in its SIP, 
to prohibit emissions that will significantly contribute to 
nonattainment, or interfere with maintenance, of a NAAQS in other 
states. In this action, EPA is proposing

[[Page 49895]]

to approve the Texas SIP submittals as having met the requirements of 
the good neighbor provision for the 1997 ozone NAAQS in accordance with 
section 110 of the CAA.

DATES: Written comments must be received on or before November 2, 2018.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2008-0408, at https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Carl Young, 214-665-6645, 
[email protected]. For the full EPA public comment policy, information 
about CBI or multimedia submissions, and general guidance on making 
effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at the EPA 
Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available at either location 
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Carl Young, 214-665-6645, 
[email protected]. To inspect the hard copy materials, please schedule 
an appointment with Mr. Young or Mr. Bill Deese at 214-665-7253.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

A. The 1997 8-Hour Ozone NAAQS and Interstate Transport of Air 
Pollution

    Under section 109 of the CAA, we establish NAAQS to protect human 
health and public welfare. In 1997, we established new 8-hour primary 
and secondary ozone NAAQS of 0.08 parts per million (62 FR 38856, July 
18, 1997).\1\ Ground level ozone is formed when nitrogen oxides 
(NOX) and volatile organic compounds (VOCs) react in the 
presence of sunlight.
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    \1\ In 2008, we revised the 8-hour ozone NAAQS to 0.075 ppm (73 
FR 16436, March 27, 2008) and in 2015 we revised the 8-hour ozone 
NAAQS to 0.070 ppm (80 FR 65292, October 26, 2015). This proposal 
pertains to the 1997 8-hour ozone NAAQS only.
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    Section 110(a)(1) of the CAA requires states to submit, within 
three years after promulgation of a new or revised standard, SIPs 
meeting the applicable ``infrastructure'' elements set forth in Section 
110(a)(2). One of these applicable infrastructure elements, CAA section 
110(a)(2)(D)(i), requires SIPs to contain ``good neighbor'' provisions 
to prohibit certain adverse air quality effects on neighboring states 
due to interstate transport of pollution. There are four sub-elements 
within CAA section 110(a)(2)(D)(i). This action reviews how the first 
two sub-elements of the good neighbor provisions at CAA section 
110(a)(2)(D)(i)(I) were addressed in the infrastructure SIP submittals 
from Texas for the 1997 8-hour ozone NAAQS. These sub-elements require 
that each SIP for a new or revised NAAQS contain adequate provisions to 
prohibit any emissions activity within the state from emitting air 
pollutants that will ``contribute significantly to nonattainment'' or 
``interfere with maintenance'' of the applicable air quality standard 
in any other state.
    The EPA has addressed the interstate transport requirements of CAA 
section 110(a)(2)(D)(i)(I) with respect to the 1997 8-hour ozone NAAQS 
in several past regulatory actions. Most relevant to this action, we 
promulgated the Clean Air Interstate Rule (CAIR) in 2005 to address the 
requirements of the good neighbor provision for the 1997 fine 
particulate PM2.5 and 1997 ozone NAAQS (May 12, 2005, 70 FR 
25172). While Texas was included in CAIR with respect to the 1997 
PM2.5 NAAQS, we determined that Texas would not 
significantly contribute to nonattainment or interfere with maintenance 
of the 1997 ozone NAAQS in other states. However, CAIR was remanded by 
the D.C. Circuit in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 
2008), modified on reh'g, 550 F.3d 1176. The court determined that CAIR 
was ``fundamentally flawed'' and ordered EPA to ``redo its analysis 
from the ground up.'' 531 F.3d at 929.
    In 2011 we promulgated the Cross-State Air Pollution Rule (CSAPR) 
to address the remand of CAIR.\2\ CSAPR addressed the state and federal 
obligations under CAA section 110(a)(2)(D)(i)(I) to prohibit air 
pollution contributing significantly to nonattainment in, or 
interfering with maintenance by, any other state with regard to the 
1997 8-hour ozone NAAQS and the 1997 annual PM2.5 NAAQS, as 
well as the 2006 24-hour PM2.5 NAAQS. To address Texas' 
transport obligation under CAA section 110(a)(2)(D)(i)(I) with regard 
to the 1997 8-hour ozone NAAQS, CSAPR established Federal 
Implementation Plan (FIP) requirements for affected electric generating 
units (EGUs) in Texas, including an emissions budget that applied to 
the EGUs' collective ozone-season emissions of NOX. The 
CSAPR budgets were to be implemented in two phases, with phase 1 to be 
implemented beginning with the 2012 ozone season and phase 2 to be 
implemented beginning with the 2014 ozone season.\3\ Due to litigation, 
phase 1 of CSAPR was not implemented until 2015 and phase 2 was set to 
be implemented beginning in 2017. (81 FR 13275, March 14, 2016).
---------------------------------------------------------------------------

    \2\ Federal Implementation Plans; Interstate Transport of Fine 
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR 
48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and 
52.39 and 40 CFR part 97).
    \3\ However, the implementation of the emissions budgets was 
stayed by the D.C. Circuit in December 2011 pending further 
litigation. The D.C. Circuit initially issued a decision in EME 
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012) (EME 
Homer City I), vacating CSAPR, but in April 2014, the Supreme Court 
issued a opinion reversing the D.C. Circuit and remanding the case 
for further proceedings. EPA v. EME Homer City Generation, L.P., 134 
S. Ct. 1584, 1600-01 (2014). After the Supreme Court issued its 
decision, the D.C. Circuit granted a motion from EPA to lift the 
stay and toll the compliance timeframes by three years. See 
Respondents' Motion to Lift the Stay Entered on December 30, 2011, 
Document #1499505, EME Homer City Generation, L.P. v. EPA, No. 11-
1302 (D.C. Cir. filed June 26, 2014); Order, Document #1518738, EME 
Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. issued 
Oct. 23, 2014).
---------------------------------------------------------------------------

    In subsequent litigation (See generally EME Homer City Generation, 
L.P. v. EPA, 795 F.3d 118 (D.C. Cir. Ct. App. 2015) (``EME Homer City 
II'' herein)), the court reviewed our ability to regulate interstate 
air pollution pursuant to the good neighbor provision. The court in EME 
Homer City II declared the CSAPR phase 2 ozone season emission budgets 
of 11 states invalid, including Texas, holding that those budgets over-
control with respect to the downwind air quality problems to which 
those states were linked for the 1997 ozone NAAQS.\4\
---------------------------------------------------------------------------

    \4\ EME Homer City II, 795 F.3d at 129-30, 138 (D.C. Cir. Ct. 
App. 2015).
---------------------------------------------------------------------------

    In our response to Homer City II, we addressed Texas's ozone-season 
emissions budget in the regulation,

[[Page 49896]]

CSAPR Update, which was promulgated in 2016 to address the requirements 
of the good neighbor provision for the 2008 ozone NAAQS.\5\ In the 
original 2011 CSAPR, EPA noted that the reductions for 11 states, 
including Texas, may not be sufficient to fully eliminate all 
significant contribution to nonattainment or interference with 
maintenance for certain downwind areas with respect to the 1997 ozone 
NAAQS because EPA's analysis projected continued nonattainment and 
maintenance problems at downwind receptors to which these upwind states 
were linked after implementation of the CSAPR trading programs. 
Specifically, exceedances were expected in Baton Rouge, Louisiana; 
Houston, Texas; and Allegan, Michigan according to the remedy case 
modeling conducted for the original CSAPR rule. The CSAPR Update used 
2017 as the analytic year for the air quality modeling to determine 
nonattainment and maintenance receptors and states linked to those 
receptors. We evaluated this 2017 modeling to determine whether 
additional emission reductions would be needed in these 11 states, 
including Texas, to address the states' full good neighbor obligation 
for the 1997 ozone NAAQS.
---------------------------------------------------------------------------

    \5\ CSAPR Update Rule for the 2008 ozone NAAQS, 81 FR 74504, 
October 26, 2016.
---------------------------------------------------------------------------

    Despite our conclusion in the 2011 CSAPR that the 1997 ozone 
transport problems to which Texas was linked were not fully resolved, 
the court concluded in EME Homer City II that the ozone season emission 
budget finalized for Texas may result in over-control as to the ozone 
air quality problems to which the state was linked. 795 F.3d at 129-30. 
In response to this determination, we removed Texas's phase 2 ozone 
season budget as a constraint in the 2017 air quality modeling 
conducted for the CSAPR Update. EPA concluded that, even in the absence 
of this constraint, the 2017 air quality modeling shows that the 
predicted average design values (DVs) \6\ used to identify 
nonattainment receptors and the maximum DVs used to identify 
maintenance receptors would both be below the level of the 1997 ozone 
NAAQS for the downwind receptors of concern to which Texas was linked 
in the original CSAPR rulemaking with respect the 1997 ozone NAAQS. 
Accordingly, we found that Texas emissions would no longer contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other state with respect to the 1997 ozone NAAQS. (See generally, 
81 FR 74504). Consistent with this finding, we removed the FIP 
requirements associated with the 1997 ozone NAAQS, and sources in Texas 
were no longer subject to the phase 2 ozone season budget calculated to 
address that standard. See 40 CFR 52.38(b)(2)(ii) (relieving sources in 
Texas of the obligation to comply with the remanded phase 2 ozone 
season emission budgets after 2016).\7\
---------------------------------------------------------------------------

    \6\ DVs are used to determine whether a NAAQS is being met.
    \7\ EPA notes that, because Texas was linked to downwind air 
quality problems with respect to the 2008 ozone NAAQS in its 
analysis, the EPA promulgated a new ozone season NOX 
emission budget to address that standard at 40 CFR 97.810(a).
---------------------------------------------------------------------------

B. Texas SIP Submittals Pertaining to the 1997 8-Hour Ozone NAAQS and 
Interstate Transport of Air Pollution

    Texas made the following SIP submittals to address CAA requirements 
to prohibit emissions which will significantly contribute to 
nonattainment or interfere with maintenance of the 1997 ozone NAAQS in 
other states: (1) An April 4, 2008 submittal stating that the state had 
addressed any potential CAA section 110(a)(2) infrastructure issues 
associated with the 1997 ozone NAAQS, including the first two sub-
elements for interstate transport in (CAA section 110(a)(2)(D)(i)(I)) 
and (2) a separate, but similar May 1, 2008 submittal which discussed 
how the first two sub-elements of the good neighbor provision were 
addressed with respect to the 1997 ozone standards. For the reasons 
described below, this action proposes to approve the state's two SIP 
submittals with respect to the state's conclusions regarding the first 
two sub-elements of the good neighbor provisions at CAA section 
110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS. See Docket No. EPA-R06-
OAR-2008-0408 in www.regulations.gov.

II. The EPA's Evaluation

    Each of the above-referenced Texas SIP submittals relied on (1) 
EPA's CAIR modeling document, ``Technical Support Document for the 
Final Clean Air Interstate Rule--Air Quality Modeling, March 2005'' \8\ 
and (2) emission controls found in the Texas SIP to support a 
conclusion that the Texas SIP had adequate provisions to prohibit 
emissions which will significantly contribute to nonattainment or 
interfere with maintenance of the 1997 ozone NAAQS in any other state. 
The SIP submittals rely on the conclusion in the CAIR rulemaking that 
Texas would not significantly contribute to nonattainment or interfere 
with maintenance of the 1997 ozone NAAQS in downwind states. While CAIR 
was still in place at the time the state submitted its SIPs, as 
discussed above, the rule was remanded by the D.C. Circuit in 2008 
because the court found it was ``fundamentally flawed'' and must be 
replaced ``from the ground up.'' North Carolina, 531 F.3d at 929-30. 
Accordingly, we cannot approve the state's SIP submittals based on the 
CAIR analysis. However, more recent information provides support for 
our proposed approval of the conclusions in the SIP submittals that the 
state will not significantly contribute to nonattainment or interfere 
with maintenance of the 1997 ozone NAAQS in any other state.
---------------------------------------------------------------------------

    \8\ Document EPA-HQ-OAR-2003-0053-2151 in regulations.gov.
---------------------------------------------------------------------------

    The updated air quality modeling conducted for the original CSAPR 
rulemaking projected the effect of emissions on ambient air quality 
monitors (receptors). The modeling projected that in 2012: (1) A 
receptor located in East Baton Rouge Parish, Louisiana (monitor ID 
220330003) would have difficulty attaining and maintaining the 1997 8-
hour ozone NAAQS; and, (2) A receptor located in Allegan County, 
Michigan (monitor ID 260050003) would have difficulty maintaining the 
1997 8-hour ozone NAAQS (76 FR 48208, 48236, August 8, 2011). The 
modeling also showed that Texas emissions were projected to contribute 
more than the threshold amount of ozone pollution necessary to be 
considered ``linked'' to these receptors for the 1997 8-hour ozone 
NAAQS (76 FR 48208, 48246, August 8, 2011). These were the only ozone 
receptors with projected air quality problems to which Texas was found 
to be linked.
    In CSAPR we used air quality projections for the year 2012, which 
was also the intended start year for implementation of the CSAPR Phase 
1 EGU emission budgets, to identify receptors projected to have air 
quality problems. The CSAPR final rule record also contained air 
quality projections for 2014, which was the intended start year for 
implementation of the CSAPR Phase 2 EGU emission budgets. The 2014 
modeling results projected that before considering the emissions 
reductions anticipated from implementation of CSAPR: (1) The East Baton 
Parish receptor would have an average 8-hour ozone DV of 84.1 parts per 
billion (ppb) and a maximum DV of 87.7 ppb; and, (2) The Allegan 
County, Michigan

[[Page 49897]]

would have maximum DV of 83.6 ppb.\9\ We used a value of 85 ppb to 
determine whether a particular ozone receptor should be identified as 
having air quality problems that may trigger transport obligations in 
upwind states with regard to the 1997 8-hour ozone NAAQS (76 FR 48208, 
48236).
---------------------------------------------------------------------------

    \9\ See projected 2014 base case average and maximum DVs for 
these monitors at pages B-14 and B-16 of the June 2011 Air Quality 
Modeling Final Rule Technical Support Document for CSAPR, Document 
ID No. EPA-HQ-OAR-2009-0491-4140, available in regulations.gov.
---------------------------------------------------------------------------

    The 2014 modeling results show that the Allegan County, Michigan 
monitor which Texas was linked to in the 2012 modeling was no longer 
projected to have air quality problems sufficient to trigger transport 
obligations with regard to the 1997 8-hour ozone NAAQS. Thus, Texas was 
no longer projected to interfere with maintenance of the 1997 ozone 
NAAQS at the Allegan County receptor in 2014. However, the 2014 
modeling results continued to project that the East Baton Parish 
receptor would have problems maintaining the 1997 ozone NAAQS.
    As discussed above, in response to the remand of Texas's CSAPR 
phase 2 ozone season budget by the D.C. Circuit in EME Homer City II, 
EPA reviewed the 2017 air quality modeling conducted for the CSAPR 
Update. EPA concluded that, even in the absence of Texas's CSAPR 
budget, both the Baton Rouge and Allegan receptors would have average 
and maximum DVs below the level of the 1997 ozone NAAQS for the 
downwind receptors of concern to which Texas was linked in the original 
CSAPR rulemaking with respect the 1997 ozone NAAQS. Accordingly, EPA 
found that Texas emissions would no longer contribute significantly to 
nonattainment in, or interfere with maintenance by, any other state 
with respect to the 1997 ozone NAAQS at either receptor or in any other 
state. (81 FR 74525-26). This conclusion is based on EPA's most recent 
modeling analysis and is supported by the fact that the Baton Rouge 
area has monitored attainment of the 1997 ozone standard since 2008.

III. Proposed Action

    We are proposing to approve the portions of the April 4, 2008 and 
May 1, 2008 Texas SIP submittals as they pertain to the requirements of 
CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS. We 
propose to find that the conclusion in the state's SIP submittals is 
consistent with EPA's conclusion regarding the Texas's good neighbor 
obligation, that emissions from Texas will not significantly contribute 
to nonattainment or interfere with maintenance of the 1997 ozone NAAQS 
in any other state.

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, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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, as 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 proposed 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone.

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

    Dated: September 26, 2018.
Anne Idsal,
Regional Administrator, Region 6.
[FR Doc. 2018-21448 Filed 10-2-18; 8:45 am]
 BILLING CODE 6560-50-P
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