Error Correction of the Area Designations for the 2010 1-Hour Sulfur Dioxide (SO2, 43757-43764 [2019-18048]
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Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
because it implements a previously
promulgated federal standard.
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 because it is not a
significant regulatory action under
Executive Order 12866.
J. National Technology Transfer and
Advancement Act (NTTAA) and 1 CFR
Part 51
This action involves technical
standards. The EPA proposes to use
EPA Methods 2, 2E, 3, 3A, 3C, 18, 21,
25, 25A, and 25C of 40 CFR part 60,
appendix A. The EPA identified 15
voluntary consensus standards (VCS) as
being potentially applicable (ASTM
D3154–00 (2006), ASTM D3464–96
(2007), ASTM D3796–90 (2001), ANSI/
ASME PTC 19–10–1981 Part 10, ASME
B133.9–1994 (2001), ISO 10396:1993
(2007), ISO 12039:2001, ISO
10780:1994, ASTM D5835–95 (2013),
ASTM D6522–11, ASTM D6420–99
(2010), CAN/CSA Z223.2–M86 (1999),
ASTM D6060–96 (2009), ISO
14965:2000(E), EN 12619(1999)). The
EPA determined that 14 of the 15
candidate VCS identified for measuring
emissions of pollutants or their
surrogates subject to emission standards
in the rule would not be practical due
to lack of equivalency, documentation,
validation data, and other important
technical and policy considerations.
The agency identified no equivalent
standards for EPA Methods 2E, 21, and
25C. However, one VCS was identified
as an acceptable alternative to EPA
Method 3A.
The VCS ASTM D6522–11, ‘‘Standard
Test Method for the Determination of
Nitrogen Oxides, Carbon Monoxide, and
Oxygen Concentrations in Emissions
from Natural Gas-Fired Reciprocating
Engines, Combustion Turbines, Boilers,
and Process Heaters Using Portable
Analyzers,’’ is an acceptable alternative
to EPA Method 3A when used at the
wellhead before combustion. It is
advisable to know the flammability and
check the lower explosive limit of the
flue gas constituents, prior to sampling,
in order to avoid undesired ignition of
the gas. The results of ASTM D6522–11
may be used to determine nitrogen
oxides and carbon monoxide emission
concentrations from natural gas
combustion at stationary sources. This
test method may also be used to monitor
emissions during short-term emission
tests or periodically in order to optimize
process operation for nitrogen oxides
and carbon monoxide control. The
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EPA’s review, including review of
comments for these 15 methods, is
documented in the memorandum,
Voluntary Consensus Standard Results
for Emission Guidelines and
Compliance Times for Municipal Solid
Waste Landfills, 2016, which is
available in the docket for the 2016
MSW Landfills EG (Docket ID Item No.
EPA–HQ–OAR–2014–0451–0206).
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this action does
not have disproportionately high and
adverse human health or environmental
effects on minority populations, lowincome populations, and/or indigenous
peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
The EPA has determined that because
this action increases the level of
environmental protection for all affected
populations without having any
disproportionately high and adverse
human health or environmental effects
on any population, including any
minority, low-income, or indigenous
populations. To the extent that any
minority, low-income, or indigenous
subpopulation is disproportionately
impacted by landfill gas emissions due
to the proximity of their homes to
sources of these emissions, that
subpopulation also stands to see
increased environmental and health
benefit from the emission reductions
called for by this action. The results of
the demographic analysis are presented
in the EJ Screening Report for Municipal
Solid Waste Landfills, July 2016, a copy
of which is available in the 2016 MSW
Landfills EG docket (Docket ID Item No.
EPA–HQ–OAR–2014–0451–0223).
Dated: August 14, 2019.
Andrew R. Wheeler,
Administrator.
[FR Doc. 2019–17822 Filed 8–21–19; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 81
[EPA–HQ–OAR–2014–0464; FRL–9998–54–
OAR]
Error Correction of the Area
Designations for the 2010 1-Hour
Sulfur Dioxide (SO2) Primary National
Ambient Air Quality Standard (NAAQS)
in Freestone and Anderson Counties,
Rusk and Panola Counties, and Titus
County in Texas
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: The Environmental Protection
Agency (EPA) is proposing to correct an
error in the designations for three areas
in Texas: Freestone and Anderson
Counties, Rusk and Panola Counties,
and Titus County. On December 13,
2016, portions of Freestone and
Anderson Counties, Rusk and Panola
Counties, and Titus County were
designated as nonattainment for the
2010 primary sulfur dioxide (SO2)
National Ambient Air Quality Standard
(NAAQS). Under our Clean Air Act
(CAA or Act) authority to correct errors,
the EPA is proposing that we erred in
not giving greater weight to Texas’
preference to characterize air quality
through monitoring, and steps
undertaken by Texas to begin
monitoring in these three areas, when
considering all available information; in
relying on available air quality analyses
in making the initial designations that
the EPA recognizes included certain
limitations; or a combination of these
two issues. Therefore, to correct these
errors, the EPA is proposing that the
previously designated nonattainment
areas in Freestone and Anderson
Counties, Rusk and Panola Counties,
and Titus County in Texas each be
revised to be designated as
unclassifiable.
Comments must be received on
or before September 23, 2019. Please
refer to SUPPLEMENTARY INFORMATION for
additional information on the comment
period.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2014–0464, at https://
www.regulations.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 our public docket. Do not
submit electronically any information
you consider to be Confidential
DATES:
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Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
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, 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.
For
further information concerning this
action, please contact Corey Mocka, U.S.
EPA, Office of Air Quality Planning and
Standards, Air Quality Policy Division,
Mail Code C539–01, 109 T.W.
Alexander Drive, Research Triangle
Park, NC 27709; by telephone at (919)
541–5142 or by email at mocka.corey@
epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
Table of Contents
I. What is the purpose of this action?
A. CAA Legal Authority
B. Background on the Designations of
Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County
in Texas
C. Purpose of This Action
II. Instructions for Submitting Public
Comments and Internet Website for
Rulemaking Information
A. Invitation To Comment
B. What should I consider as I prepare my
comments for the EPA?
C. Where can I find additional information
for this rulemaking?
III. Environmental Justice Concerns
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act
(UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Government
H. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
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I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution or Use
J. National Technology Transfer and
Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
I. What is the purpose of this action?
A. CAA Legal Authority
Section 110(k)(6) of the CAA, 42
U.S.C. 7410(k)(6), as amended in 1990,
provides: ‘‘Whenever the Administrator
determines that the Administrator’s
action approving, disapproving, or
promulgating any plan or plan revision
(or part thereof), area designation,
redesignation, classification or
reclassification was in error, the
Administrator may in the same manner
as the approval, disapproval, or
promulgation revise such action as
appropriate without requiring any
further submission from the state. Such
determination and the basis thereof
shall be provided to the state and the
public.’’ (Emphasis added.)
We interpret this provision to
authorize the agency to make
corrections to a promulgated area
designation when it is shown to our
satisfaction (or we discover) that (1) we
clearly erred by failing to consider or by
inappropriately considering information
made available to the EPA at the time
of the promulgation, or the information
made available at the time of
promulgation is subsequently
demonstrated to have been clearly
inadequate, and (2) other information
persuasively supports a change in the
action. See, e.g., 57 FR 56762, 56763
(November 30, 1992) (correcting certain
designations, boundaries, or
classifications for a variety of NAAQS
promulgated in agency actions shortly
after the 1990 Clean Air Act
amendments).
B. Background on the Designations of
Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County
in Texas
On June 2, 2010, the EPA
Administrator signed a notice of final
rulemaking that revised the primary SO2
NAAQS (75 FR 35520 (June 22, 2010))
after review of the existing primary SO2
standards promulgated on April 30,
1971 (36 FR 8187). The EPA established
the revised primary SO2 NAAQS at 75
parts per billion (ppb), which is attained
when the 3-year average of the annual
99th percentile of daily maximum 1hour average concentrations does not
exceed 75 ppb. 40 CFR 50.17(a)–(b).
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The process for designating areas
following promulgation of a new or
revised NAAQS is contained in the CAA
section 107(d) (42 U.S.C. 7407(d)). After
promulgation of a new or revised
NAAQS, each governor or tribal leader
has an opportunity to recommend air
quality designations, including the
appropriate boundaries for
nonattainment areas, to the EPA (42
U.S.C. 7407(d)(1)(A)). The EPA
considers these recommendations when
fulfilling its duty to promulgate the
formal area designations and boundaries
for the new or revised NAAQS. By no
later than 120 days prior to
promulgating designations, the EPA is
required to notify states, territories, and
tribes, as appropriate, of any intended
modifications to an area designation or
boundary recommendation that the EPA
deems necessary (42 U.S.C.
7407(d)(1)(B)).
After invoking a 1-year extension of
the deadlines to designate areas, as
provided for in section 107(d)(1)(B) of
the Act, the EPA published an initial
round of SO2 designations for certain
areas of the country on August 5, 2013
(referred to as ‘‘Round 1’’) (78 FR
47191). Following the initial
designations, three lawsuits were filed
against the EPA in different U.S. District
Courts, alleging the agency had failed to
perform a nondiscretionary duty under
the CAA by not designating all portions
of the country by the June 2, 2013,
statutory deadline. The state of Texas
was a plaintiff or plaintiff-intervenor in
two of those cases. In one of those cases
(Sierra Club and NRDC v. McCarthy,
No. 13–cv–3953), the U.S. District Court
for the Northern District of California on
March 2, 2015, entered an enforceable
order for the EPA to complete the area
designations by three specific deadlines
according to the court-ordered schedule.
The court order required the EPA to
designate areas containing sources
meeting certain criteria no later than
July 2, 2016. The three Texas areas the
EPA designated that are the subject of
this proposed action contained sources
meeting those criteria.
To meet the first court-ordered
deadline for the next set of SO2
designations, known as ‘‘Round 2,’’ the
final action designating 61 additional
areas was signed on June 30, 2016, and
a supplemental final action including
the designations for portions of
Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County,
was signed on November 29, 2016 1
1 By a series of stipulations of the parties in Sierra
Club and NRDC v. McCarthy and orders of the
Court, the deadline for the three areas in Texas that
are the subject of this proposed action, and a fourth
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(‘‘Round 2 Supplement’’) and published
at 81 FR 45039 (July 12, 2016) and 81
FR 89870 (December 13, 2016),
respectively. To meet the second courtordered deadline, all remaining
undesignated areas, except those where
a state has installed and begun timely
operating a new SO2 monitoring
network meeting the EPA specifications
referenced in the EPA’s SO2 Data
Requirements Rule, were designated on
December 21, 2017, with a
supplemental amendment on March 28,
2018 (referred to as ‘‘Round 3’’) and
published at 83 FR 1098 (January 9,
2018) and 83 FR 14597 (April 14, 2018),
respectively.2 Pursuant to the courtordered schedule, the EPA must
complete SO2 designations for the
remaining areas of the country by
December 31, 2020 (referred to as
‘‘Round 4’’).
On August 21, 2015 (80 FR 51052),
the EPA separately promulgated an SO2
air quality data rule. The Data
Requirements Rule (DRR) requires state
air agencies to provide additional
monitoring or modeling information to
characterize SO2 air quality in areas
containing SO2 emissions sources either
meeting certain criteria or that have
otherwise been listed under the DRR by
the EPA or state air agencies. In lieu of
the SO2 air quality characterization
required under the DRR, air agencies
could demonstrate that the listed
sources restricted their annual SO2
emissions to less than 2,000 tons per
year (tpy) through federally enforceable
and in effect emission limits, or provide
documentation that the sources had
been shut down, by January 13, 2017.
Thus, for the purpose of meeting the
DRR obligations, states were provided
options on how to characterize their air
quality, including setting up and
beginning operation of new SO2
monitoring networks by January 1, 2017.
States were required to notify the EPA
by July 1, 2016, of which
characterization option they had
selected for each listed DRR source.
Since states were not required under the
DRR to complete characterization of air
quality in subject areas for purposes of
that rule before the Round 2 deadline
for the EPA to issue area designations,
for those areas—including the three
Round 2 Texas areas that are the subject
of this proposed action—the EPA did
not expect to have the results of the DRR
area, Milam County, which is not part of this
proposed action, was extended to November 29,
2016.
2 The remaining undesignated portions of the five
Texas counties that are the subject of this notice
were designated attainment/unclassifiable in Round
3.
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implementation in time for those areas’
designations.
In Freestone County, Big Brown
Steam Electric Station (‘‘Big Brown’’)
was the largest source of SO2 emissions
in the area, but recently and
permanently suspended operations as of
January 2018, and the majority of its
New Source Review (NSR) permits were
voided on March 29, 2018, and it’s
operating permit was voided August 3,
2018.3 In Titus County, Monticello
Steam Electric Station (‘‘Monticello’’)
was the largest source of SO2 emissions
in the area, but recently and
permanently suspended operations as of
February 2018 and the majority of its
NSR permits were voided on February
14, 2018 and its operating permit was
voided on August 3, 2018.4 5 In Rusk
County, Martin Lake Electric Station is
the largest source of SO2 emissions in
the area and continues to operate. All
three facilities are owned by Vistra
Energy Corp and its subsidiary
Luminant (‘‘Vistra Energy’’).
In 2011, following the promulgation
of the revised NAAQS, the state of
Texas initially recommended an
unclassifiable designation for Freestone
and Anderson Counties, Rusk and
Panola Counties, and Titus County
since, at the time, there were not any
SO2 monitors in these counties. In
September 2015, Texas updated its
recommendation to unclassifiable/
attainment for areas of the state where
there were no monitors, including the
above counties. Texas stated its position
that ambient air monitoring data were
the appropriate information for use in
the designation process. In December
2015, prior to the EPA’s notification to
the Governor of our intended
designations, we received air quality
modeling from the Sierra Club for these
three areas, but we did not receive any
other monitoring, modeling, or technical
information from Texas or Vistra
Energy. In February 2016, the EPA
notified Texas of our intended
designations of nonattainment for three
separate areas covering portions of
Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County,
3 See docket item number EPA–HQ–OAR–2014–
0464–0455 for a list of Big Brown’s voided NSR
permits. Big Brown’s voided operating permit is
also located in Docket EPA–HQ–OAR–2014–0464.
4 For Monticello, see docket item number EPA–
HQ–OAR–2014–0464–0456 for a list of voided NSR
permits, and docket item number EPA–HQ–OAR–
2014–0464–0457 for the voided operating permit.
5 Any remaining NSR or material handling
permits for Big Brown and Monticello will only be
maintained while the facilities complete closure
activities related to coal piles, silos, conveyors, and
other shutdown tasks.
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based on the modeling submitted by
Sierra Club.6
During the public comment period in
March 2016, the EPA received
substantive comments from citizens,
Sierra Club, Vistra Energy, the Texas
Commission on Environmental Quality
(TCEQ), and the Governor of the state of
Texas regarding our intended
nonattainment designations for these
three areas. Summaries of the comments
received can be found in the Responses
to Significant Comments on the
Designation Recommendations for the
2010 Sulfur Dioxide National Ambient
Air Quality Standards (NAAQS)—
Supplement for Four Areas in Texas Not
Addressed in June 30, 2016, Version.7
Vistra Energy submitted air dispersion
modeling for all three areas, and the
Sierra Club submitted updated versions
of the modeling previously submitted.
The EPA determined that the modeling
submitted by Vistra Energy was not
representative of current air quality in
these areas for several reasons. For
example, Vistra Energy’s modeling used
a non-EPA preprocessor model,
AERLIFT, to increase the observed
temperatures and velocities of the
plumes exiting from the stacks, which
the EPA determined was not adequately
justified, and, thus, could not be relied
upon in the designations decisionmaking process. The Sierra Club’s
updated modeling used the latest model
version available at the time, in
accordance with the general
recommendations on modeling
provided by the EPA.8 Texas did not
submit modeling but maintained its
position that monitoring of air quality
was the proper basis for designating
these areas. Concerning the Sierra Club
modeling, Texas claimed that this
modeling ‘‘has errors and clearly
overestimates actual SO2
concentrations.’’ 9 Full reviews of the
modeling received can be found in the
6 See the 120-day letter from the EPA to Texas:
https://www.epa.gov/sites/production/files/201603/documents/il-epa-resp-r2.pdf and the Technical
Support Document (TSD) for the intended
designations for Texas: https://www.epa.gov/sites/
production/files/2016-03/documents/tx-epa-tsdr2.pdf (‘‘Intended TSD’’).
7 https://www.epa.gov/sites/production/files/
2016-11/documents/rtc_so2_comments_received_
document_4_tx_sources_final_0.pdf.
8 See the SO NAAQS Designations Source2
Oriented Monitoring Technical Assistance
Document at https://www.epa.gov/sites/production/
files/2016-06/documents/so2monitoringtad.pdf,
and the SO2 NAAQS Designations Modeling
Technical Assistance Document at https://
www.epa.gov/sites/production/files/2016-06/
documents/so2modelingtad.pdf.
9 Comment submitted on March 31, 2016 by
Richard A. Hyde, Executive Director, Texas
Commission on Environmental Quality. Docket ID#
EPA–HQ–OAR–2014–0464–0294.
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Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
Texas Intended TSD 10 and Texas Final
TSD 11 from Round 2. The final
nonattainment designations were based
on EPA’s analysis of all the air quality
modeling submitted by Vistra Energy
and Sierra Club, as well as
consideration of comments submitted
by Texas.
On June 29, 2016, timely meeting its
DRR option selection deadline, Texas
separately communicated to the EPA
that it had chosen the monitoring
pathway for these areas to meet its
obligations under that rule to
characterize air quality for the sources
in these areas that were listed under the
DRR. In Texas’ annual monitoring
network plan for 2016, the state
indicated that it intended to site new
SO2 monitors in any Round 2 area that
the EPA designated as nonattainment.
Following up on this intention, in its
2017 annual monitoring network plan,
Texas included new proposed SO2
monitoring sites in Freestone, Titus, and
Rusk Counties to assess air quality in
the three new SO2 nonattainment areas
involving Vistra Energy sources. Texas
referred to the 2016 Sierra Club
modeling analysis, among other
information, to inform their proposed
siting of the new monitors, but stated:
‘‘The use of the 2016 Sierra Club
modeling analysis for possible monitor
placement decisions does not infer
TCEQ’s concurrence with the use of this
modeling analysis for any other
purpose.’’ 12 The EPA approved the
three monitor siting proposals in an
August 10, 2017, letter to TCEQ.13
On February 13, 2017, the state of
Texas, TCEQ, and Vistra Energy and its
subsidiary companies filed petitions for
judicial review of the Round 2
Supplement in the Fifth Circuit Court of
Appeals.14 On that same day, Vistra
Energy sent the EPA a petition for
reconsideration and administrative stay
of EPA’s nonattainment designations for
Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County.
On March 15, 2017, TCEQ also
10 https://www.epa.gov/sites/production/files/
2016-03/documents/tx-epa-tsd-r2.pdf.
11 https://www.epa.gov/sites/production/files/
2016-11/documents/texas_4_deferred_luminant_
tsd_final_docket.pdf.
12 Appendix E: Sulfur Dioxide Data Requirements
Rule Monitor Placement Evaluations, from 2017
TCEQ Annual Monitoring Network Plan.
13 TCEQ subsequently deployed SO monitors
2
near Big Brown on October 30, 2017, and near
Martin Lake on November 1, 2017. No monitors
where deployed in the area around Monticello as
the source was retired on February 8, 2018 (see
2018 TCEQ Annual Monitoring Network Plan).
14 Sierra Club additionally filed a petition for
judicial review of this action in the D.C. Circuit
Court of Appeals, which was transferred to the Fifth
Circuit on November 2, 2017, and consolidated
with the pending petitions.
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submitted a request for an
administrative stay of the Round 2
Supplement. On September 21, 2017,
the EPA responded to Vistra Energy’s
February 2017 petition for
reconsideration by indicating an intent
to undertake an administrative action
with notice and comment to revisit the
nonattainment designations for the three
areas. On October 12, 2017, the Fifth
Circuit Court of Appeals granted EPA’s
motion to place the consolidated
challenges to the Round 2 Supplement
in abeyance on this basis. In December
2017, TCEQ submitted a new petition
for reconsideration and Vistra Energy
submitted additional information to
support their February 2017 petition for
reconsideration. Both submissions in
December 2017 provided information
regarding the planned retirements of the
Big Brown (Freestone/Anderson
Counties) and Monticello (Titus County)
facilities. Since December 2017, both
the Big Brown and Monticello power
plants have ceased operations and
surrendered their operating permits.
In November 2017, Texas sited an SO2
monitor at the Martin Lake (Rusk/
Panola Counties) power plant. Texas
also sited and began operating a monitor
around the Big Brown power plant
(Freestone/Anderson Counties) on
October 30, 2017. The Big Brown power
plant shut down in February 2018;
however, Texas is currently continuing
to operate the monitor. The EPA
anticipates that these monitors will not
have 3 years of monitoring data
necessary to fully evaluate compliance
with the SO2 NAAQS until the end of
calendar year 2020. Texas also planned
to site a monitor around the Monticello
power plant (Titus County), but once
the retirement of the facility had been
announced, the monitor was not
installed.
C. Purpose of This Action
In this document, the EPA is
proposing that we erred in failing to
give greater weight to the state of Texas’
preference to use ambient air monitors
to characterize SO2 air quality in their
state for purposes of the designation,
when we considered all available
information at the time of designation.
The EPA has consistently recognized
appropriately sited ambient air
monitoring data as relevant information
for determining an area’s designation for
the 2010 1-hour SO2 NAAQS.15 16 The
15 See ‘‘Updated Guidance for Area Designations
for the 2010 Primary Sulfur Dioxide National
Ambient Air Quality Standard,’’ memorandum to
Regional Air Division Directors, Regions I–X, from
Stephen D. Page, dated March 20, 2015, available
at https://www.epa.gov/sites/production/files/201604/documents/20150320so2designations.pdf. The
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EPA’s DRR gave states the ability to
choose whether to characterize areas
around listed sources through modeling
or monitoring. It was also the EPA’s
stated intention in developing the
overall implementation strategy for the
2010 SO2 NAAQS to use the air quality
characterizations required under the
DRR to inform area designations, where
those characterizations were conducted
in time to inform the EPA’s designations
rounds.17 However, areas required to be
designated in Round 2 by the first courtordered deadline of July 2, 2016,
generally were designated before the air
quality characterization information
required under the DRR became
available, and were required to be
designated regardless of the state’s
choice of air quality characterization,
including those states that planned to
begin operating a new monitoring
network in such an area in 2017 in
accordance with the DRR.
Since 2011, the state of Texas has
consistently communicated to the EPA
their support of ambient air monitoring
data as the appropriate information for
use in the designations decisions
process for areas in Texas.18 Because the
EPA supplemented this guidance with documents
first made available to states and other interested
parties in 2013 and updated in 2016. See SO2
NAAQS Designations Source-Oriented Monitoring
Technical Assistance Document (February 2016),
available at https://www.epa.gov/sites/production/
files/2016-06/documents/so2monitoringtad.pdf,
and SO2 NAAQS Designations Modeling Technical
Assistance Document (August 2016), available at
https://www.epa.gov/sites/production/files/201606/documents/so2modelingtad.pdf.
16 The EPA has relied on monitors, where
appropriate, to determine that areas were
affirmatively attaining or not attaining the 2010 SO2
NAAQS in all three rounds of designations. See,
e.g., any Round 1 designations (all areas were
designated based on monitored data), Round 2
designation for the Gibson County Area in Indiana
(https://www.epa.gov/sites/production/files/201603/documents/in-epa-tsd-r2.pdf and https://
www.epa.gov/sites/production/files/2016-07/
documents/r5_in_final_designation_tsd_
06302016.pdf), and Round 3 designation for the
North Denver Area in Colorado (https://
www.epa.gov/sites/production/files/2017-08/
documents/7_co_so2_rd3-final.pdf).
17 See ‘‘Next Steps on Designating Areas and
Implementing the 1-Hour SO2 Standard—EPA
Webinar for State, Local, and Tribal Air Agencies,’’
February 13, 2013, page 2, https://archive.epa.gov/
apti/video/web/pdf/presentation-7.pdf; Data
Requirements Rule for the 1-Hour Sulfur Dioxide
Primary NAAQS—Proposed Rule, 79 FR 27446
(May 13, 2014) (‘‘[t]he air quality data developed by
the states in accordance with this rulemaking
would be used by the EPA in future rounds of area
designations for the 1-hour SO2 NAAQS’’).
18 Examples of these communications include:
TCEQ’s 2011 Comments on Guidance for 1-Hour
SO2 NAAQS SIP Submissions at https://
www.regulations.gov/document?D=EPA-HQ-OAR2010-1059-0034, TCEQ’s 2014 comments regarding
Data Requirements for the 1-Hour SO2 NAAQS at
https://www.regulations.gov/document?D=EPA-HQOAR-2013-0711-0051, Texas’ 2016 Round 2
recommendations at https://www.epa.gov/sites/
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areas around SO2 emissions sources in
Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County
were subject to the Round 2 deadline of
July 2, 2016, these areas were required
to be designated at that time, regardless
of the state of Texas’ preference to
characterize the areas based on
monitoring data and its intention to
monitor these areas, given additional
time.
However, the EPA is proposing that
we erred in failing to give greater weight
to the preference of the state to monitor
air quality in these areas when
considering all available information at
the time of designation. Accordingly, in
light of the lack of monitoring data
available at that time, and Texas’
expressed preference at that time for
designations of these areas to be based
on monitoring data, we are proposing to
correct this error by designating the
areas as unclassifiable.
The EPA is also proposing a second,
independent grounds for error, that we
erred in relying on available air quality
modeling, in particular modeling
submitted by Sierra Club, in making the
initial nonattainment designations for
these three areas. As noted earlier, the
modeling submitted by Vistra Energy,
which purported to show attainment,
used a non-EPA preprocessor which
constitutes an alternative model for
which the state did not secure approval
from the EPA per Appendix W to 40
CFR part 51—Guideline on Air Quality
Models. Also, as noted earlier, the
modeling submitted by Sierra Club,
which purported to show
nonattainment, while developed in
accordance with the general
recommendations on modeling
provided by the EPA, contained key
limitations and uncertainties. On one
hand, we noted in the Texas Intended
TSD and Texas Final TSD from Round
2 that individually these key limitations
and uncertainties would not
significantly change modeled results or,
in many cases, could result in
underestimation of SO2
concentrations.19 On the other hand,
given the possible collective
significance of these issues and, in the
production/files/2016-03/documents/tx-rec-r2.pdf,
TCEQ’s 2016 Annual Monitoring Network Plan at
https://www.tceq.texas.gov/assets/public/
compliance/monops/air/annual_review/historical/
2016-AMNP.pdf, and TCEQ’s 2017 Annual
Monitoring Network Plan at https://
www.tceq.texas.gov/assets/public/compliance/
monops/air/annual_review/historical/2017AMNP.pdf.
19 See the Technical Support Document (TSD) for
the intended designations for Texas: https://
www.epa.gov/sites/production/files/2016-11/
documents/texas_4_deferred_luminant_tsd_final_
docket.pdf (‘‘Final TSD’’).
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case of the areas around the Martin Lake
and Monticello power plants, given that
the maximum modeled concentrations
are within about 10% of the primary
SO2 NAAQS, we are less confident in
our prior statements that potential
adjustments to the Sierra Club modeling
would not result in modeled values near
or below the NAAQS.20 We, therefore,
propose that our error in relying on the
Sierra Club modeling represents an
insufficient basis for the EPA’s initial
nonattainment designations.
Accordingly, we are proposing to
correct this error by designating the
areas as unclassifiable.
One of the most significant limitations
and uncertainties with Sierra Club’s
modeling is the absence of variable
stack conditions and representation of
100 percent load stack parameters. As
commenters on the EPA’s proposed
designations noted, this issue is
particularly pronounced as the Electric
Reliability Council of Texas (ERCOT)
market is competitive ‘‘with plant
dispatch based on variable cost’’ and
falling natural gas prices and renewable
capacity resulting in these units running
in variable operations.21 The EPA noted
in the technical support document for
the 2016 designations in Indiana that
‘‘use of hourly stack parameters more
accurately characterize plume
characteristics, which will provide
greater reliability both in the estimated
concentration and in the geographical
distribution of concentrations.’’ 22 Other
limitations and uncertainties with the
Sierra Club modeling identified in the
Texas Intended TSD and the Texas Final
TSD for the 2016 SO2 designations
include: Use of an older version of
AERMOD; representation of recent
emissions, including controls after the
2011 National Emissions Inventory;
inappropriate elevation of flagpole
receptors; use of a larger receptor grid
than recommended; treatment of
building downwash, surface
meteorology, hourly wind inputs,
20 The maximum predicted 99th percentile 1-hour
SO2 concentrations are 224 mg/m3 for the modeling
domain that includes the Martin Lake power plant,
and 212 mg/m3 for the modeling domain that
includes the Monticello power plant. (The 1-hour
SO2 NAAQS is achieved at 196.4 mg/m3.) The prior
TSDs erred in stating that the modeling for
Monticello showed concentrations ‘‘almost double
the standard.’’
21 Comment submitted on March 31, 206 from
Kim Mireles, Luminant Generation Company, LLC.
Docket ID# EPA–HQ–OAR–2014–0464–0328.
ERCOT is the independent system operator
responsible for dispatching electricity to the
majority of Texas consumers.
22 Technical Support Document for EPA’s
Intended Round 2 Area Designations for the 2010
SO2 NAAQS in Indiana (page 46) at https://
www.epa.gov/sites/production/files/2016-03/
documents/in-epa-tsd-r2.pdf.
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potential to emit/allowable emissions,
variable stack temperature, and velocity;
approach to estimation of background
concentrations; and failure to include
building downwash and fenceline, or
source contribution in the modeling
analysis. While individually these
deficiencies are not dispositive,
collectively they are a sufficient basis
for the EPA to propose that we erred in
relying on the Sierra Club modeling in
making the initial nonattainment
designations for the three Texas areas.
This proposed rationale is consistent
with related statements by the EPA. The
EPA’s March 2011 Guidance explained
that given the currently limited network
of SO2 monitors and our expectation
that states will not yet have completed
appropriate modeling of all significant
SO2 sources, we anticipated that most
areas of the country will be designated
‘‘unclassifiable.’’ 23 The EPA’s updated
designations guidance in March 2015
indicated that: ‘‘In the absence of
information clearly demonstrating a
designation of ‘attainment’ or
‘nonattainment,’ the EPA intends to
designate areas as ‘unclassifiable’ when
it takes action pursuant to the court
order.’’ 24 In promulgating revisions to
the SO2 NAAQS in 2010, the EPA stated
that where informational records ‘‘are
insufficient to support initial
designations of either ‘attainment’ or
‘nonattainment’ * * * EPA is required
to issue a designation for the area of
‘unclassifiable.’ ’’ 25 The EPA also stated
that designations would be determined
‘‘based on 3 years of complete, quality
assured, certified monitoring data’’ 26
and that the EPA would allow for
modeling in addition to monitoring
(where monitoring was insufficient).27
The Northern District Court of
California also stated in regards to the
consent decree that the appropriate
remedy was to ‘‘. . . require the EPA to
issue designations pursuant to a
schedule, not to mandate that EPA issue
any particular designation.’’ 28
Furthermore, the EPA recognizes that
its potential future reliance on properly
sited monitors rather than dispersion
modeling—as could be the case in a
future redesignation of the Martin Lake
power plant in Rusk/Panola Counties
23 Memorandum dated March 24, 2011, titled
‘‘Area Designations for the 2010 Revised Primary
Sulfur Dioxide National Ambient Air Quality
Standards,’’ from Stephen D. Page, Director of
EPA’s Office of Air Quality Planning and Standards,
to Regional Air Division Directors.
24 https://www.epa.gov/sites/production/files/
2016-06/documents/20150320so2designations.pdf.
25 75 FR 35571.
26 75 FR 35570–71.
27 75 FR 35569.
28 Sierra Club, et al. v. McCarthy, 2015 WL
889142 at 11.
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Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
area and the Big Brown power plant in
Freestone/Anderson Counties area—
would be consistent with the approach
the agency took in 2016 in designating
the area around the Gibson power plant
in Gibson County, Indiana. The EPA has
also recognized in other areas that,
where conflicting sets of model results
exist, the appropriate designation may
be ‘‘unclassifiable,’’ depending on the
facts of that area.’’ 29 30
Additionally, the EPA is proposing
that our error in relying on the Sierra
Club modeling along with our error in
failing to give greater weight to Texas’
preference for monitoring, represents an
insufficient basis for the EPA’s initial
nonattainment designations.
Accordingly, we are proposing to
correct this error by designating the
areas as unclassifiable.
The proposed revised designation of
unclassifiable indicates that the EPA
could not determine based on available
information at the time of issuing the
designation whether the three Texas
areas that are the subject of this
proposed action were meeting or not
meeting the 2010 SO2 NAAQS. The EPA
is initiating this notice-and-comment
process for the public to comment on
the EPA’s proposed errors and approach
to correct the initial designation for
Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County
to unclassifiable, rather than
nonattainment.
Furthermore, independent from
correcting these initial designations, the
EPA is proposing to remove the portion
of Titus County that was erroneously
listed as attainment/unclassifiable on
the Texas Part 81 attainment status
designations table. As part the Round 3
final designations rule published on
January 9, 2018 (83 FR 1098), the EPA
inadvertently listed a portion of Titus
County (i.e., the portion that is not being
designated as part of this proposed
29 See ‘‘Technical Analysis for the Sheldon
Station, Nebraska Area’’ in the Technical Support
Document for EPA’s Intended Round 2 Area
Designations for the 2010 SO2 NAAQS in Nebraska
(page 33) at https://www.epa.gov/sites/production/
files/2016-03/documents/ne-epa-tsd-r2.pdf, and in
the Final Technical Support Document for EPA’s
Round 2 Area Designations for the 2010 SO2
NAAQS in Nebraska (page 11) at https://
www.epa.gov/sites/production/files/2016-07/
documents/r7_ne_final_designation_tsd_
06302016.pdf.
30 See ‘‘Technical Analysis for Gallia County,
Ohio’’ in the Technical Support Document for the
EPA’s Intended Round 2 Area Designations for the
2010 SO2 NAAQS in Ohio (page 19) at https://
www.epa.gov/sites/production/files/2016-03/
documents/oh-epa-tsd-r2.pdf, and in the Technical
Support Document for EPA’s Final Round 2 Area
Designations for the 2010 SO2 NAAQS in Ohio
(page 8) at https://www.epa.gov/sites/production/
files/2016-07/documents/r5_oh_final_designation_
tsd_06302016.pdf.
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action nor the previous Round 2 final
action) as attainment/unclassifiable.
Consistent with the rulemaking records,
the remaining portion of Titus County
should not have been listed as
attainment/unclassifiable in the part 81
table.31 EPA will designate the
remaining Titus County area by
December 31, 2020 during the Round 4
designations process.
II. Instructions for Submitting Public
Comments and Internet Website for
Rulemaking Information
A. Invitation To Comment
The purpose of this document is to
solicit input from the public on EPA’s
error in designating portions of
Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County
as nonattainment, and the corrected
designations of unclassifiable.
Please be as specific as possible in
supporting your views.
• Describe any assumptions and
provide any technical information and/
or data that you used.
• Provide specific examples to
illustrate your concerns, and suggest
alternatives.
• Explain your views as clearly as
possible.
• Provide your input by the comment
period deadline identified.
Previous submissions and supporting
technical analyses utilized for the initial
Round 2 designations can be found at
https://www.epa.gov/sulfur-dioxidedesignations and, also, in the public
docket for these SO2 designations at
Docket ID No. EPA–HQ–OAR–2014–
0464. Air dispersion modeling input
and output files are too large to post in
the docket or on the website and must
be requested from the EPA Docket
Office or from the contact listed in the
FOR FURTHER INFORMATION CONTACT
section. The EPA Docket Office can be
contacted at (202) 566–1744, and is
located at EPA Docket Center Reading
Room, WJC West Building, Room 3334,
1301 Constitution Avenue NW,
Washington, DC 20004. The hours of
operation at the EPA Docket Center are
8:30 a.m.–4:30 p.m., Monday–Friday.
The EPA invites public input on this
proposed action regarding error
correction of the designations of the
Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County
areas during the 30-day comment period
provided in this document. In order to
receive full consideration, input from
31 For examples, see Table 2 in the Round 3 final
designations TSD for Texas at https://www.epa.gov/
sites/production/files/2017-12/documents/39-txso2-rd3-final.pdf and footnote #3 of the Texas Part
81 table.
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the public must be submitted to the
docket by September 23, 2019. At this
time, the EPA is not asking for public
comment on areas beyond the three
areas that are the subject of this
proposed action. In addition, in
finalizing this action the EPA will not
revisit comments relating to the
designations for these three areas in
Texas received in previous public
comment periods. (The agency has
already responded to these comments in
the previous designations actions.) This
opportunity for public comment does
not affect any rights or obligations of
any state, territory, or tribe, or of the
EPA, which might otherwise exist
pursuant to the CAA section 107(d).
Please refer to the FOR FURTHER
INFORMATION CONTACT section in this
document for specific instructions on
submitting comments and locating
relevant public documents.
B. What should I consider as I prepare
my comments for the EPA?
1. Submitting CBI. Do not submit CBI
information to the EPA through https://
www.regulations.gov or email. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI in any
digital storage media that you mail to
the EPA, mark the outside of the digital
storage media as CBI and then identify
electronically within the digital storage
media the specific information that is
claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 Code of Federal Regulations (CFR)
part 2. Send or deliver information
identified as CBI only to the following
address: Tiffany Purifoy, OAQPS CBI
Officer, U.S. EPA, Office of Air Quality
Planning and Standards, Mail Code
C404–02, Research Triangle Park, NC
27711, telephone (919) 541–0878, email
at purifoy.tiffany@epa.gov, Attention
Docket ID No. EPA–HQ–OAR–2014–
0464.
2. Tips for Preparing Your Comments.
When submitting comments, remember
to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
• Follow directions.
• Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
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C. Where can I find additional
information for this rulemaking?
All documents in the docket are listed
in the www.regulations.gov index,
identified by Docket ID No. EPA–HQ–
OAR–2014–0464, and on the agency’s
SO2 Designations website at https://
www.epa.gov/sulfur-dioxidedesignations. Although listed in the
index, some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the EPA Docket Center. Air dispersion
modeling input and output files are too
large to post in the docket or on the
website and must be requested from the
contact listed in the FOR FURTHER
INFORMATION CONTACT section. The EPA
Docket Center can be contacted at (202)
566–1744, and is located at EPA Docket
Center Reading Room, WJC West
Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004.
The hours of operation at the EPA
Docket Center are 8:30 a.m.–4:30 p.m.,
Monday–Friday.
III. Environmental Justice Concerns
When the EPA establishes a new or
revised NAAQS, the CAA requires the
EPA to designate all areas of the United
States as either nonattainment,
attainment, or unclassifiable. This
proposed action would correct an error
in the nonattainment designations for
Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County
in Texas for the 2010 SO2 NAAQS. Area
designations address environmental
justice concerns by ensuring that the
public is properly informed about the
air quality in an area. In locations where
air quality does not meet the NAAQS,
the CAA requires relevant state
authorities to initiate appropriate air
quality management actions to ensure
that all those residing, working,
attending school, or otherwise present
in those areas are protected, regardless
of minority and economic status.
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is exempt from review by
the Office of Management and Budget
because it is proposing to correct an
error in previously promulgated
designations for portions of Freestone
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43763
and Anderson Counties, Rusk and
Panola Counties, and Titus County in
Texas for the 2010 1-hour SO2 NAAQS.
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Government
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This action does not have tribal
implications, as specified in Executive
Order 13175. This action concerns the
designation of portions of Freestone and
Anderson Counties, Rusk and Panola
Counties, and Titus County in Texas for
the 2010 SO2 NAAQS. The CAA
provides for states, territories, and
eligible tribes to develop plans to
regulate emissions of air pollutants
within their areas, as necessary, based
on the designations. The Tribal
Authority Rule (TAR) provides tribes
the opportunity to apply for eligibility
to develop and implement CAA
programs, such as programs to attain
and maintain the SO2 NAAQS, but it
leaves to the discretion of the tribe the
decision of whether to apply to develop
these programs and which programs, or
appropriate elements of a program, the
tribe will seek to adopt. This rule does
not have a substantial direct effect on
one or more Indian tribes. It would not
create any additional requirements
beyond those of the SO2 NAAQS. This
rule, if finalized, would revise the
designations for portions of Freestone
and Anderson Counties, Rusk and
Panola Counties, and Titus County in
Texas for the SO2 NAAQS, but no areas
of Indian country are intended to be
designated by this action. Furthermore,
this rule does not affect the relationship
or distribution of power and
responsibilities between the federal
government and Indian tribes. The CAA
and the TAR establish the relationship
of the federal government and tribes in
developing plans to attain the NAAQS,
and this rule does nothing to modify
that relationship. Thus, Executive Order
13175 does not apply.
This action is not an Executive Order
13771 regulatory action because actions
such as error corrections of air quality
designations associated with a new
revised NAAQS are exempt under
Executive Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
PRA. In this action, the EPA is
correcting the SO2 NAAQS designations
for portions of Freestone and Anderson
Counties, Rusk and Panola Counties,
and Titus County in Texas promulgated
previously on December 13, 2016, and
does not contain any information
collection activities.
D. Regulatory Flexibility Act (RFA)
This proposed error correction action
under CAA section 110(k)(6) is not
subject to the RFA. The RFA applies
only to rules subject to notice-andcomment rulemaking requirements
under the Administrative Procedure Act
(APA), 5 U.S.C. 553, or any other
statute. Section 107(d)(2)(B) of the CAA
explicitly provides that designations are
exempt from the notice-and-comment
provisions of the APA. In addition,
designations under CAA section 107(d)
are not among the list of actions that are
subject to the notice-and-comment
rulemaking requirements of CAA
section 307(d).
E. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538 and does
not significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local, or
tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. The division of
responsibility between the federal
government and the states for purposes
of implementing the NAAQS is
established under the CAA.
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H. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
The EPA interprets Executive Order
13045 as applying to those regulatory
actions that concern environmental
health or safety risks that the EPA has
reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. This action is not
subject to Executive Order 13045
because it does not establish an
environmental standard intended to
mitigate health or safety risks.
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Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution or Use
This action is not subject to Executive
Order 13211 because it is not a
significant regulatory action under
Executive Order 12866.
J. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards.
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this action does
not have disproportionately high and
adverse human health or environmental
effects on minority populations, lowincome populations and/or indigenous
peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
The documentation for this
determination is contained in Section IV
of this preamble, ‘‘Environmental
Justice Concerns.’’
List of Subjects in 40 CFR Part 81
Harvey D. Fort, Acting Director,
Division of Policy and Program
Development, Office of Federal Contract
Compliance Programs, 200 Constitution
Avenue NW, Room C–3325,
Washington, DC 20210. Telephone:
(202) 693–0104 (voice) or (202) 693–
1337 (TTY).
SUPPLEMENTARY INFORMATION: The
following correction is made to the
document that published in the Federal
Register on August 15, 2019:
On page 41687, the first line of Table
2. Quantifiable Costs ‘‘First-Year Costs
$24,197,500’’ is corrected to read ‘‘FirstYear Costs $20,325,900’’.
Craig E. Leen,
Director, OFCCP.
[FR Doc. 2019–18060 Filed 8–21–19; 8:45 am]
BILLING CODE 4510–45–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 1 and 54
Establishing the Digital Opportunity
Data Collection and Modernizing the
FCC Form 477 Data Program
Dated: August 13, 2019.
Anne L. Idsal,
Acting Assistant Administrator.
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
[FR Doc. 2019–18048 Filed 8–21–19; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF LABOR
Office of Federal Contract Compliance
Programs
41 CFR Part 60–1
RIN 1250–AA09
Implementing Legal Requirements
Regarding the Equal Opportunity
Clause’s Religious Exemption
Office of Federal Contract
Compliance Programs; Labor.
ACTION: Notice of proposed rulemaking;
correction.
AGENCY:
SUMMARY: On August 15, 2019, the
Office of Federal Contract Compliance
Programs (OFCCP) published a
proposed rule to clarify the scope and
application of the religious exemption
contained in section 204(c) of Executive
Order 11246, as amended. That
document included incorrect
information for the quantifiable costs
that appear in Table 2. This document
corrects Table 2 in the proposed rule.
16:22 Aug 21, 2019
August 22, 2019.
FOR FURTHER INFORMATION CONTACT:
[WC Docket Nos. 11–10 and 19–195, FCC
No. 19–79]
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
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DATES:
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SUMMARY: In this document, the Federal
Communications Commission
(Commission) adopts a Report and
Order and Second Further Notice of
Proposed Rulemaking (Second FNPRM).
This document seeks comment on
certain aspects of the Digital
Opportunity Data Collection to enhance
its accuracy and usefulness. The Second
FNPRM seeks comment on ways to
develop location-specific data that
could be used in conjunction with the
polygon-based data in the new
collection to precisely identify the
homes and small businesses that have
and do not have access to broadband
services. With respect to mobile
wireless coverage, the Second FNPRM
seeks comment on how to align the
Digital Opportunity Data Collection
with changes in mobile broadband
deployment technology, markets, and
policy needs. The Second FNPRM also
seeks comment on how to improve
satellite broadband deployment data
given the unique characteristics of
satellites.
DATES: For the Second FNPRM
comments are due on or before
PO 00000
Frm 00036
Fmt 4702
Sfmt 4702
September 23, 2019, and reply
comments are due on or before October
7, 2019. Written comments on the
Paperwork Reduction Act information
collection requirements must be
submitted by the public, OMB, and
other interested parties on or before
October 21, 2019.
ADDRESSES: In addition to filing
comments with the Commission’s Office
of the Secretary, as set forth below, a
copy of any comments on the
Paperwork Reduction Act information
collection requirements contained
herein should be submitted to the
Commission via email to PRA@fcc.gov
and to Nicole Ongele, FCC, via email to
Nicole.Ongele@fcc.gov.
FOR FURTHER INFORMATION CONTACT:
Wireline Competition Bureau, Kirk
Burgee, at (202) 418–1599, Kirk.Burgee@
fcc.gov, or, Wireless
Telecommunications Bureau, Garnet
Hanly, at (202) 418–0995,
Garnet.Hanly@fcc.gov. For additional
information concerning the Paperwork
Reduction Act information collection
requirements contained in this
document, send an email to PRA@
fcc.gov or contact Nicole Ongele at (202)
418–2991.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Report
and Order and Second Further Notice of
Proposed Rulemaking in WC Docket
Nos. 11–10 and 19–195, FCC 19–79,
adopted August 1, 2019 and released
August 6, 2019. The full text of this
document is available for public
inspection during regular business
hours in the FCC Reference Information
Center, Portals II, 445 12th Street SW,
Room CY–A257, Washington, DC 20554.
It also is available on the Commission’s
website at https://www.fcc.gov/
document/fcc-improves-broadbandmapping-0.
Pursuant to sections 1.415 and 1.419
of the Commission’s rules, 47 CFR
1.415, 1.419, interested parties may file
comments and reply comments in
response to the Second FNPRM on or
before the dates indicated on the first
page of this document. Comments may
be filed using the Commission’s
Electronic Filing System (ECFS). See
Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121
(1998).
D Electronic Filers: Comments may be
filed electronically using the internet by
accessing the ECFS: https://
www.fcc.gov/ecfs/.
D Paper Filers: Parties who choose to
file by paper must file an original and
one copy of each filing. If more than one
docket or rulemaking number appears in
the caption of this proceeding, filers
E:\FR\FM\22AUP1.SGM
22AUP1
]]>Agencies
[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Proposed Rules]
[Pages 43757-43764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18048]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-HQ-OAR-2014-0464; FRL-9998-54-OAR]
Error Correction of the Area Designations for the 2010 1-Hour
Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard
(NAAQS) in Freestone and Anderson Counties, Rusk and Panola Counties,
and Titus County in Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
correct an error in the designations for three areas in Texas:
Freestone and Anderson Counties, Rusk and Panola Counties, and Titus
County. On December 13, 2016, portions of Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County were designated as
nonattainment for the 2010 primary sulfur dioxide (SO2)
National Ambient Air Quality Standard (NAAQS). Under our Clean Air Act
(CAA or Act) authority to correct errors, the EPA is proposing that we
erred in not giving greater weight to Texas' preference to characterize
air quality through monitoring, and steps undertaken by Texas to begin
monitoring in these three areas, when considering all available
information; in relying on available air quality analyses in making the
initial designations that the EPA recognizes included certain
limitations; or a combination of these two issues. Therefore, to
correct these errors, the EPA is proposing that the previously
designated nonattainment areas in Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County in Texas each be revised to be
designated as unclassifiable.
DATES: Comments must be received on or before September 23, 2019.
Please refer to SUPPLEMENTARY INFORMATION for additional information on
the comment period.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2014-0464, at https://www.regulations.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 our public docket. Do not submit electronically any
information you consider to be Confidential
[[Page 43758]]
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, 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.
FOR FURTHER INFORMATION CONTACT: For further information concerning
this action, please contact Corey Mocka, U.S. EPA, Office of Air
Quality Planning and Standards, Air Quality Policy Division, Mail Code
C539-01, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709; by
telephone at (919) 541-5142 or by email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
Table of Contents
I. What is the purpose of this action?
A. CAA Legal Authority
B. Background on the Designations of Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County in Texas
C. Purpose of This Action
II. Instructions for Submitting Public Comments and Internet Website
for Rulemaking Information
A. Invitation To Comment
B. What should I consider as I prepare my comments for the EPA?
C. Where can I find additional information for this rulemaking?
III. Environmental Justice Concerns
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Government
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. What is the purpose of this action?
A. CAA Legal Authority
Section 110(k)(6) of the CAA, 42 U.S.C. 7410(k)(6), as amended in
1990, provides: ``Whenever the Administrator determines that the
Administrator's action approving, disapproving, or promulgating any
plan or plan revision (or part thereof), area designation,
redesignation, classification or reclassification was in error, the
Administrator may in the same manner as the approval, disapproval, or
promulgation revise such action as appropriate without requiring any
further submission from the state. Such determination and the basis
thereof shall be provided to the state and the public.'' (Emphasis
added.)
We interpret this provision to authorize the agency to make
corrections to a promulgated area designation when it is shown to our
satisfaction (or we discover) that (1) we clearly erred by failing to
consider or by inappropriately considering information made available
to the EPA at the time of the promulgation, or the information made
available at the time of promulgation is subsequently demonstrated to
have been clearly inadequate, and (2) other information persuasively
supports a change in the action. See, e.g., 57 FR 56762, 56763
(November 30, 1992) (correcting certain designations, boundaries, or
classifications for a variety of NAAQS promulgated in agency actions
shortly after the 1990 Clean Air Act amendments).
B. Background on the Designations of Freestone and Anderson Counties,
Rusk and Panola Counties, and Titus County in Texas
On June 2, 2010, the EPA Administrator signed a notice of final
rulemaking that revised the primary SO2 NAAQS (75 FR 35520
(June 22, 2010)) after review of the existing primary SO2
standards promulgated on April 30, 1971 (36 FR 8187). The EPA
established the revised primary SO2 NAAQS at 75 parts per
billion (ppb), which is attained when the 3-year average of the annual
99th percentile of daily maximum 1-hour average concentrations does not
exceed 75 ppb. 40 CFR 50.17(a)-(b).
The process for designating areas following promulgation of a new
or revised NAAQS is contained in the CAA section 107(d) (42 U.S.C.
7407(d)). After promulgation of a new or revised NAAQS, each governor
or tribal leader has an opportunity to recommend air quality
designations, including the appropriate boundaries for nonattainment
areas, to the EPA (42 U.S.C. 7407(d)(1)(A)). The EPA considers these
recommendations when fulfilling its duty to promulgate the formal area
designations and boundaries for the new or revised NAAQS. By no later
than 120 days prior to promulgating designations, the EPA is required
to notify states, territories, and tribes, as appropriate, of any
intended modifications to an area designation or boundary
recommendation that the EPA deems necessary (42 U.S.C. 7407(d)(1)(B)).
After invoking a 1-year extension of the deadlines to designate
areas, as provided for in section 107(d)(1)(B) of the Act, the EPA
published an initial round of SO2 designations for certain
areas of the country on August 5, 2013 (referred to as ``Round 1'') (78
FR 47191). Following the initial designations, three lawsuits were
filed against the EPA in different U.S. District Courts, alleging the
agency had failed to perform a nondiscretionary duty under the CAA by
not designating all portions of the country by the June 2, 2013,
statutory deadline. The state of Texas was a plaintiff or plaintiff-
intervenor in two of those cases. In one of those cases (Sierra Club
and NRDC v. McCarthy, No. 13-cv-3953), the U.S. District Court for the
Northern District of California on March 2, 2015, entered an
enforceable order for the EPA to complete the area designations by
three specific deadlines according to the court-ordered schedule. The
court order required the EPA to designate areas containing sources
meeting certain criteria no later than July 2, 2016. The three Texas
areas the EPA designated that are the subject of this proposed action
contained sources meeting those criteria.
To meet the first court-ordered deadline for the next set of
SO2 designations, known as ``Round 2,'' the final action
designating 61 additional areas was signed on June 30, 2016, and a
supplemental final action including the designations for portions of
Freestone and Anderson Counties, Rusk and Panola Counties, and Titus
County, was signed on November 29, 2016 \1\
[[Page 43759]]
(``Round 2 Supplement'') and published at 81 FR 45039 (July 12, 2016)
and 81 FR 89870 (December 13, 2016), respectively. To meet the second
court-ordered deadline, all remaining undesignated areas, except those
where a state has installed and begun timely operating a new
SO2 monitoring network meeting the EPA specifications
referenced in the EPA's SO2 Data Requirements Rule, were
designated on December 21, 2017, with a supplemental amendment on March
28, 2018 (referred to as ``Round 3'') and published at 83 FR 1098
(January 9, 2018) and 83 FR 14597 (April 14, 2018), respectively.\2\
Pursuant to the court-ordered schedule, the EPA must complete
SO2 designations for the remaining areas of the country by
December 31, 2020 (referred to as ``Round 4'').
---------------------------------------------------------------------------
\1\ By a series of stipulations of the parties in Sierra Club
and NRDC v. McCarthy and orders of the Court, the deadline for the
three areas in Texas that are the subject of this proposed action,
and a fourth area, Milam County, which is not part of this proposed
action, was extended to November 29, 2016.
\2\ The remaining undesignated portions of the five Texas
counties that are the subject of this notice were designated
attainment/unclassifiable in Round 3.
---------------------------------------------------------------------------
On August 21, 2015 (80 FR 51052), the EPA separately promulgated an
SO2 air quality data rule. The Data Requirements Rule (DRR)
requires state air agencies to provide additional monitoring or
modeling information to characterize SO2 air quality in
areas containing SO2 emissions sources either meeting
certain criteria or that have otherwise been listed under the DRR by
the EPA or state air agencies. In lieu of the SO2 air
quality characterization required under the DRR, air agencies could
demonstrate that the listed sources restricted their annual
SO2 emissions to less than 2,000 tons per year (tpy) through
federally enforceable and in effect emission limits, or provide
documentation that the sources had been shut down, by January 13, 2017.
Thus, for the purpose of meeting the DRR obligations, states were
provided options on how to characterize their air quality, including
setting up and beginning operation of new SO2 monitoring
networks by January 1, 2017. States were required to notify the EPA by
July 1, 2016, of which characterization option they had selected for
each listed DRR source. Since states were not required under the DRR to
complete characterization of air quality in subject areas for purposes
of that rule before the Round 2 deadline for the EPA to issue area
designations, for those areas--including the three Round 2 Texas areas
that are the subject of this proposed action--the EPA did not expect to
have the results of the DRR implementation in time for those areas'
designations.
In Freestone County, Big Brown Steam Electric Station (``Big
Brown'') was the largest source of SO2 emissions in the
area, but recently and permanently suspended operations as of January
2018, and the majority of its New Source Review (NSR) permits were
voided on March 29, 2018, and it's operating permit was voided August
3, 2018.\3\ In Titus County, Monticello Steam Electric Station
(``Monticello'') was the largest source of SO2 emissions in
the area, but recently and permanently suspended operations as of
February 2018 and the majority of its NSR permits were voided on
February 14, 2018 and its operating permit was voided on August 3,
2018.4 5 In Rusk County, Martin Lake Electric Station is the
largest source of SO2 emissions in the area and continues to
operate. All three facilities are owned by Vistra Energy Corp and its
subsidiary Luminant (``Vistra Energy'').
---------------------------------------------------------------------------
\3\ See docket item number EPA-HQ-OAR-2014-0464-0455 for a list
of Big Brown's voided NSR permits. Big Brown's voided operating
permit is also located in Docket EPA-HQ-OAR-2014-0464.
\4\ For Monticello, see docket item number EPA-HQ-OAR-2014-0464-
0456 for a list of voided NSR permits, and docket item number EPA-
HQ-OAR-2014-0464-0457 for the voided operating permit.
\5\ Any remaining NSR or material handling permits for Big Brown
and Monticello will only be maintained while the facilities complete
closure activities related to coal piles, silos, conveyors, and
other shutdown tasks.
---------------------------------------------------------------------------
In 2011, following the promulgation of the revised NAAQS, the state
of Texas initially recommended an unclassifiable designation for
Freestone and Anderson Counties, Rusk and Panola Counties, and Titus
County since, at the time, there were not any SO2 monitors
in these counties. In September 2015, Texas updated its recommendation
to unclassifiable/attainment for areas of the state where there were no
monitors, including the above counties. Texas stated its position that
ambient air monitoring data were the appropriate information for use in
the designation process. In December 2015, prior to the EPA's
notification to the Governor of our intended designations, we received
air quality modeling from the Sierra Club for these three areas, but we
did not receive any other monitoring, modeling, or technical
information from Texas or Vistra Energy. In February 2016, the EPA
notified Texas of our intended designations of nonattainment for three
separate areas covering portions of Freestone and Anderson Counties,
Rusk and Panola Counties, and Titus County, based on the modeling
submitted by Sierra Club.\6\
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\6\ See the 120-day letter from the EPA to Texas: https://www.epa.gov/sites/production/files/2016-03/documents/il-epa-resp-r2.pdf and the Technical Support Document (TSD) for the intended
designations for Texas: https://www.epa.gov/sites/production/files/2016-03/documents/tx-epa-tsd-r2.pdf (``Intended TSD'').
---------------------------------------------------------------------------
During the public comment period in March 2016, the EPA received
substantive comments from citizens, Sierra Club, Vistra Energy, the
Texas Commission on Environmental Quality (TCEQ), and the Governor of
the state of Texas regarding our intended nonattainment designations
for these three areas. Summaries of the comments received can be found
in the Responses to Significant Comments on the Designation
Recommendations for the 2010 Sulfur Dioxide National Ambient Air
Quality Standards (NAAQS)--Supplement for Four Areas in Texas Not
Addressed in June 30, 2016, Version.\7\ Vistra Energy submitted air
dispersion modeling for all three areas, and the Sierra Club submitted
updated versions of the modeling previously submitted. The EPA
determined that the modeling submitted by Vistra Energy was not
representative of current air quality in these areas for several
reasons. For example, Vistra Energy's modeling used a non-EPA
preprocessor model, AERLIFT, to increase the observed temperatures and
velocities of the plumes exiting from the stacks, which the EPA
determined was not adequately justified, and, thus, could not be relied
upon in the designations decision-making process. The Sierra Club's
updated modeling used the latest model version available at the time,
in accordance with the general recommendations on modeling provided by
the EPA.\8\ Texas did not submit modeling but maintained its position
that monitoring of air quality was the proper basis for designating
these areas. Concerning the Sierra Club modeling, Texas claimed that
this modeling ``has errors and clearly overestimates actual
SO2 concentrations.'' \9\ Full reviews of the modeling
received can be found in the
[[Page 43760]]
Texas Intended TSD \10\ and Texas Final TSD \11\ from Round 2. The
final nonattainment designations were based on EPA's analysis of all
the air quality modeling submitted by Vistra Energy and Sierra Club, as
well as consideration of comments submitted by Texas.
---------------------------------------------------------------------------
\7\ https://www.epa.gov/sites/production/files/2016-11/documents/rtc_so2_comments_received_document_4_tx_sources_final_0.pdf
.
\8\ See the SO2 NAAQS Designations Source-Oriented
Monitoring Technical Assistance Document at https://www.epa.gov/sites/production/files/2016-06/documents/so2monitoringtad.pdf, and
the SO2 NAAQS Designations Modeling Technical Assistance
Document at https://www.epa.gov/sites/production/files/2016-06/documents/so2modelingtad.pdf.
\9\ Comment submitted on March 31, 2016 by Richard A. Hyde,
Executive Director, Texas Commission on Environmental Quality.
Docket ID# EPA-HQ-OAR-2014-0464-0294.
\10\ https://www.epa.gov/sites/production/files/2016-03/documents/tx-epa-tsd-r2.pdf.
\11\ https://www.epa.gov/sites/production/files/2016-11/documents/texas_4_deferred_luminant_tsd_final_docket.pdf.
---------------------------------------------------------------------------
On June 29, 2016, timely meeting its DRR option selection deadline,
Texas separately communicated to the EPA that it had chosen the
monitoring pathway for these areas to meet its obligations under that
rule to characterize air quality for the sources in these areas that
were listed under the DRR. In Texas' annual monitoring network plan for
2016, the state indicated that it intended to site new SO2
monitors in any Round 2 area that the EPA designated as nonattainment.
Following up on this intention, in its 2017 annual monitoring network
plan, Texas included new proposed SO2 monitoring sites in
Freestone, Titus, and Rusk Counties to assess air quality in the three
new SO2 nonattainment areas involving Vistra Energy sources.
Texas referred to the 2016 Sierra Club modeling analysis, among other
information, to inform their proposed siting of the new monitors, but
stated: ``The use of the 2016 Sierra Club modeling analysis for
possible monitor placement decisions does not infer TCEQ's concurrence
with the use of this modeling analysis for any other purpose.'' \12\
The EPA approved the three monitor siting proposals in an August 10,
2017, letter to TCEQ.\13\
---------------------------------------------------------------------------
\12\ Appendix E: Sulfur Dioxide Data Requirements Rule Monitor
Placement Evaluations, from 2017 TCEQ Annual Monitoring Network
Plan.
\13\ TCEQ subsequently deployed SO2 monitors near Big
Brown on October 30, 2017, and near Martin Lake on November 1, 2017.
No monitors where deployed in the area around Monticello as the
source was retired on February 8, 2018 (see 2018 TCEQ Annual
Monitoring Network Plan).
---------------------------------------------------------------------------
On February 13, 2017, the state of Texas, TCEQ, and Vistra Energy
and its subsidiary companies filed petitions for judicial review of the
Round 2 Supplement in the Fifth Circuit Court of Appeals.\14\ On that
same day, Vistra Energy sent the EPA a petition for reconsideration and
administrative stay of EPA's nonattainment designations for Freestone
and Anderson Counties, Rusk and Panola Counties, and Titus County. On
March 15, 2017, TCEQ also submitted a request for an administrative
stay of the Round 2 Supplement. On September 21, 2017, the EPA
responded to Vistra Energy's February 2017 petition for reconsideration
by indicating an intent to undertake an administrative action with
notice and comment to revisit the nonattainment designations for the
three areas. On October 12, 2017, the Fifth Circuit Court of Appeals
granted EPA's motion to place the consolidated challenges to the Round
2 Supplement in abeyance on this basis. In December 2017, TCEQ
submitted a new petition for reconsideration and Vistra Energy
submitted additional information to support their February 2017
petition for reconsideration. Both submissions in December 2017
provided information regarding the planned retirements of the Big Brown
(Freestone/Anderson Counties) and Monticello (Titus County) facilities.
Since December 2017, both the Big Brown and Monticello power plants
have ceased operations and surrendered their operating permits.
---------------------------------------------------------------------------
\14\ Sierra Club additionally filed a petition for judicial
review of this action in the D.C. Circuit Court of Appeals, which
was transferred to the Fifth Circuit on November 2, 2017, and
consolidated with the pending petitions.
---------------------------------------------------------------------------
In November 2017, Texas sited an SO2 monitor at the
Martin Lake (Rusk/Panola Counties) power plant. Texas also sited and
began operating a monitor around the Big Brown power plant (Freestone/
Anderson Counties) on October 30, 2017. The Big Brown power plant shut
down in February 2018; however, Texas is currently continuing to
operate the monitor. The EPA anticipates that these monitors will not
have 3 years of monitoring data necessary to fully evaluate compliance
with the SO2 NAAQS until the end of calendar year 2020.
Texas also planned to site a monitor around the Monticello power plant
(Titus County), but once the retirement of the facility had been
announced, the monitor was not installed.
C. Purpose of This Action
In this document, the EPA is proposing that we erred in failing to
give greater weight to the state of Texas' preference to use ambient
air monitors to characterize SO2 air quality in their state
for purposes of the designation, when we considered all available
information at the time of designation. The EPA has consistently
recognized appropriately sited ambient air monitoring data as relevant
information for determining an area's designation for the 2010 1-hour
SO2 NAAQS.15 16 The EPA's DRR gave states the
ability to choose whether to characterize areas around listed sources
through modeling or monitoring. It was also the EPA's stated intention
in developing the overall implementation strategy for the 2010
SO2 NAAQS to use the air quality characterizations required
under the DRR to inform area designations, where those
characterizations were conducted in time to inform the EPA's
designations rounds.\17\ However, areas required to be designated in
Round 2 by the first court-ordered deadline of July 2, 2016, generally
were designated before the air quality characterization information
required under the DRR became available, and were required to be
designated regardless of the state's choice of air quality
characterization, including those states that planned to begin
operating a new monitoring network in such an area in 2017 in
accordance with the DRR.
---------------------------------------------------------------------------
\15\ See ``Updated Guidance for Area Designations for the 2010
Primary Sulfur Dioxide National Ambient Air Quality Standard,''
memorandum to Regional Air Division Directors, Regions I-X, from
Stephen D. Page, dated March 20, 2015, available at https://www.epa.gov/sites/production/files/2016-04/documents/20150320so2designations.pdf. The EPA supplemented this guidance with
documents first made available to states and other interested
parties in 2013 and updated in 2016. See SO2 NAAQS
Designations Source-Oriented Monitoring Technical Assistance
Document (February 2016), available at https://www.epa.gov/sites/production/files/2016-06/documents/so2monitoringtad.pdf, and
SO2 NAAQS Designations Modeling Technical Assistance
Document (August 2016), available at https://www.epa.gov/sites/production/files/2016-06/documents/so2modelingtad.pdf.
\16\ The EPA has relied on monitors, where appropriate, to
determine that areas were affirmatively attaining or not attaining
the 2010 SO2 NAAQS in all three rounds of designations.
See, e.g., any Round 1 designations (all areas were designated based
on monitored data), Round 2 designation for the Gibson County Area
in Indiana (https://www.epa.gov/sites/production/files/2016-03/documents/in-epa-tsd-r2.pdf and https://www.epa.gov/sites/production/files/2016-07/documents/r5_in_final_designation_tsd_06302016.pdf), and Round 3 designation
for the North Denver Area in Colorado (https://www.epa.gov/sites/production/files/2017-08/documents/7_co_so2_rd3-final.pdf).
\17\ See ``Next Steps on Designating Areas and Implementing the
1-Hour SO2 Standard--EPA Webinar for State, Local, and
Tribal Air Agencies,'' February 13, 2013, page 2, https://archive.epa.gov/apti/video/web/pdf/presentation-7.pdf; Data
Requirements Rule for the 1-Hour Sulfur Dioxide Primary NAAQS--
Proposed Rule, 79 FR 27446 (May 13, 2014) (``[t]he air quality data
developed by the states in accordance with this rulemaking would be
used by the EPA in future rounds of area designations for the 1-hour
SO2 NAAQS'').
---------------------------------------------------------------------------
Since 2011, the state of Texas has consistently communicated to the
EPA their support of ambient air monitoring data as the appropriate
information for use in the designations decisions process for areas in
Texas.\18\ Because the
[[Page 43761]]
areas around SO2 emissions sources in Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County were subject to
the Round 2 deadline of July 2, 2016, these areas were required to be
designated at that time, regardless of the state of Texas' preference
to characterize the areas based on monitoring data and its intention to
monitor these areas, given additional time.
---------------------------------------------------------------------------
\18\ Examples of these communications include: TCEQ's 2011
Comments on Guidance for 1-Hour SO2 NAAQS SIP Submissions
at https://www.regulations.gov/document?D=EPA-HQ-OAR-2010-1059-0034,
TCEQ's 2014 comments regarding Data Requirements for the 1-Hour
SO2 NAAQS at https://www.regulations.gov/document?D=EPA-HQ-OAR-2013-0711-0051, Texas' 2016 Round 2 recommendations at
https://www.epa.gov/sites/production/files/2016-03/documents/tx-rec-r2.pdf, TCEQ's 2016 Annual Monitoring Network Plan at https://www.tceq.texas.gov/assets/public/compliance/monops/air/annual_review/historical/2016-AMNP.pdf, and TCEQ's 2017 Annual
Monitoring Network Plan at https://www.tceq.texas.gov/assets/public/compliance/monops/air/annual_review/historical/2017-AMNP.pdf.
---------------------------------------------------------------------------
However, the EPA is proposing that we erred in failing to give
greater weight to the preference of the state to monitor air quality in
these areas when considering all available information at the time of
designation. Accordingly, in light of the lack of monitoring data
available at that time, and Texas' expressed preference at that time
for designations of these areas to be based on monitoring data, we are
proposing to correct this error by designating the areas as
unclassifiable.
The EPA is also proposing a second, independent grounds for error,
that we erred in relying on available air quality modeling, in
particular modeling submitted by Sierra Club, in making the initial
nonattainment designations for these three areas. As noted earlier, the
modeling submitted by Vistra Energy, which purported to show
attainment, used a non-EPA preprocessor which constitutes an
alternative model for which the state did not secure approval from the
EPA per Appendix W to 40 CFR part 51--Guideline on Air Quality Models.
Also, as noted earlier, the modeling submitted by Sierra Club, which
purported to show nonattainment, while developed in accordance with the
general recommendations on modeling provided by the EPA, contained key
limitations and uncertainties. On one hand, we noted in the Texas
Intended TSD and Texas Final TSD from Round 2 that individually these
key limitations and uncertainties would not significantly change
modeled results or, in many cases, could result in underestimation of
SO2 concentrations.\19\ On the other hand, given the
possible collective significance of these issues and, in the case of
the areas around the Martin Lake and Monticello power plants, given
that the maximum modeled concentrations are within about 10% of the
primary SO2 NAAQS, we are less confident in our prior
statements that potential adjustments to the Sierra Club modeling would
not result in modeled values near or below the NAAQS.\20\ We,
therefore, propose that our error in relying on the Sierra Club
modeling represents an insufficient basis for the EPA's initial
nonattainment designations. Accordingly, we are proposing to correct
this error by designating the areas as unclassifiable.
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\19\ See the Technical Support Document (TSD) for the intended
designations for Texas: https://www.epa.gov/sites/production/files/2016-11/documents/texas_4_deferred_luminant_tsd_final_docket.pdf
(``Final TSD'').
\20\ The maximum predicted 99th percentile 1-hour SO2
concentrations are 224 [micro]g/m\3\ for the modeling domain that
includes the Martin Lake power plant, and 212 [micro]g/m\3\ for the
modeling domain that includes the Monticello power plant. (The 1-
hour SO2 NAAQS is achieved at 196.4 [micro]g/m\3\.) The
prior TSDs erred in stating that the modeling for Monticello showed
concentrations ``almost double the standard.''
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One of the most significant limitations and uncertainties with
Sierra Club's modeling is the absence of variable stack conditions and
representation of 100 percent load stack parameters. As commenters on
the EPA's proposed designations noted, this issue is particularly
pronounced as the Electric Reliability Council of Texas (ERCOT) market
is competitive ``with plant dispatch based on variable cost'' and
falling natural gas prices and renewable capacity resulting in these
units running in variable operations.\21\ The EPA noted in the
technical support document for the 2016 designations in Indiana that
``use of hourly stack parameters more accurately characterize plume
characteristics, which will provide greater reliability both in the
estimated concentration and in the geographical distribution of
concentrations.'' \22\ Other limitations and uncertainties with the
Sierra Club modeling identified in the Texas Intended TSD and the Texas
Final TSD for the 2016 SO2 designations include: Use of an
older version of AERMOD; representation of recent emissions, including
controls after the 2011 National Emissions Inventory; inappropriate
elevation of flagpole receptors; use of a larger receptor grid than
recommended; treatment of building downwash, surface meteorology,
hourly wind inputs, potential to emit/allowable emissions, variable
stack temperature, and velocity; approach to estimation of background
concentrations; and failure to include building downwash and fenceline,
or source contribution in the modeling analysis. While individually
these deficiencies are not dispositive, collectively they are a
sufficient basis for the EPA to propose that we erred in relying on the
Sierra Club modeling in making the initial nonattainment designations
for the three Texas areas.
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\21\ Comment submitted on March 31, 206 from Kim Mireles,
Luminant Generation Company, LLC. Docket ID# EPA-HQ-OAR-2014-0464-
0328. ERCOT is the independent system operator responsible for
dispatching electricity to the majority of Texas consumers.
\22\ Technical Support Document for EPA's Intended Round 2 Area
Designations for the 2010 SO2 NAAQS in Indiana (page 46)
at https://www.epa.gov/sites/production/files/2016-03/documents/in-epa-tsd-r2.pdf.
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This proposed rationale is consistent with related statements by
the EPA. The EPA's March 2011 Guidance explained that given the
currently limited network of SO2 monitors and our
expectation that states will not yet have completed appropriate
modeling of all significant SO2 sources, we anticipated that
most areas of the country will be designated ``unclassifiable.'' \23\
The EPA's updated designations guidance in March 2015 indicated that:
``In the absence of information clearly demonstrating a designation of
`attainment' or `nonattainment,' the EPA intends to designate areas as
`unclassifiable' when it takes action pursuant to the court order.''
\24\ In promulgating revisions to the SO2 NAAQS in 2010, the
EPA stated that where informational records ``are insufficient to
support initial designations of either `attainment' or `nonattainment'
* * * EPA is required to issue a designation for the area of
`unclassifiable.' '' \25\ The EPA also stated that designations would
be determined ``based on 3 years of complete, quality assured,
certified monitoring data'' \26\ and that the EPA would allow for
modeling in addition to monitoring (where monitoring was
insufficient).\27\ The Northern District Court of California also
stated in regards to the consent decree that the appropriate remedy was
to ``. . . require the EPA to issue designations pursuant to a
schedule, not to mandate that EPA issue any particular designation.''
\28\
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\23\ Memorandum dated March 24, 2011, titled ``Area Designations
for the 2010 Revised Primary Sulfur Dioxide National Ambient Air
Quality Standards,'' from Stephen D. Page, Director of EPA's Office
of Air Quality Planning and Standards, to Regional Air Division
Directors.
\24\ https://www.epa.gov/sites/production/files/2016-06/documents/20150320so2designations.pdf.
\25\ 75 FR 35571.
\26\ 75 FR 35570-71.
\27\ 75 FR 35569.
\28\ Sierra Club, et al. v. McCarthy, 2015 WL 889142 at 11.
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Furthermore, the EPA recognizes that its potential future reliance
on properly sited monitors rather than dispersion modeling--as could be
the case in a future redesignation of the Martin Lake power plant in
Rusk/Panola Counties
[[Page 43762]]
area and the Big Brown power plant in Freestone/Anderson Counties
area--would be consistent with the approach the agency took in 2016 in
designating the area around the Gibson power plant in Gibson County,
Indiana. The EPA has also recognized in other areas that, where
conflicting sets of model results exist, the appropriate designation
may be ``unclassifiable,'' depending on the facts of that area.''
29 30
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\29\ See ``Technical Analysis for the Sheldon Station, Nebraska
Area'' in the Technical Support Document for EPA's Intended Round 2
Area Designations for the 2010 SO2 NAAQS in Nebraska
(page 33) at https://www.epa.gov/sites/production/files/2016-03/documents/ne-epa-tsd-r2.pdf, and in the Final Technical Support
Document for EPA's Round 2 Area Designations for the 2010
SO2 NAAQS in Nebraska (page 11) at https://www.epa.gov/sites/production/files/2016-07/documents/r7_ne_final_designation_tsd_06302016.pdf.
\30\ See ``Technical Analysis for Gallia County, Ohio'' in the
Technical Support Document for the EPA's Intended Round 2 Area
Designations for the 2010 SO2 NAAQS in Ohio (page 19) at
https://www.epa.gov/sites/production/files/2016-03/documents/oh-epa-tsd-r2.pdf, and in the Technical Support Document for EPA's Final
Round 2 Area Designations for the 2010 SO2 NAAQS in Ohio
(page 8) at https://www.epa.gov/sites/production/files/2016-07/documents/r5_oh_final_designation_tsd_06302016.pdf.
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Additionally, the EPA is proposing that our error in relying on the
Sierra Club modeling along with our error in failing to give greater
weight to Texas' preference for monitoring, represents an insufficient
basis for the EPA's initial nonattainment designations. Accordingly, we
are proposing to correct this error by designating the areas as
unclassifiable.
The proposed revised designation of unclassifiable indicates that
the EPA could not determine based on available information at the time
of issuing the designation whether the three Texas areas that are the
subject of this proposed action were meeting or not meeting the 2010
SO2 NAAQS. The EPA is initiating this notice-and-comment
process for the public to comment on the EPA's proposed errors and
approach to correct the initial designation for Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County to unclassifiable,
rather than nonattainment.
Furthermore, independent from correcting these initial
designations, the EPA is proposing to remove the portion of Titus
County that was erroneously listed as attainment/unclassifiable on the
Texas Part 81 attainment status designations table. As part the Round 3
final designations rule published on January 9, 2018 (83 FR 1098), the
EPA inadvertently listed a portion of Titus County (i.e., the portion
that is not being designated as part of this proposed action nor the
previous Round 2 final action) as attainment/unclassifiable. Consistent
with the rulemaking records, the remaining portion of Titus County
should not have been listed as attainment/unclassifiable in the part 81
table.\31\ EPA will designate the remaining Titus County area by
December 31, 2020 during the Round 4 designations process.
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\31\ For examples, see Table 2 in the Round 3 final designations
TSD for Texas at https://www.epa.gov/sites/production/files/2017-12/documents/39-tx-so2-rd3-final.pdf and footnote #3 of the Texas Part
81 table.
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II. Instructions for Submitting Public Comments and Internet Website
for Rulemaking Information
A. Invitation To Comment
The purpose of this document is to solicit input from the public on
EPA's error in designating portions of Freestone and Anderson Counties,
Rusk and Panola Counties, and Titus County as nonattainment, and the
corrected designations of unclassifiable.
Please be as specific as possible in supporting your views.
Describe any assumptions and provide any technical
information and/or data that you used.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Provide your input by the comment period deadline
identified.
Previous submissions and supporting technical analyses utilized for
the initial Round 2 designations can be found at https://www.epa.gov/sulfur-dioxide-designations and, also, in the public docket for these
SO2 designations at Docket ID No. EPA-HQ-OAR-2014-0464. Air
dispersion modeling input and output files are too large to post in the
docket or on the website and must be requested from the EPA Docket
Office or from the contact listed in the FOR FURTHER INFORMATION
CONTACT section. The EPA Docket Office can be contacted at (202) 566-
1744, and is located at EPA Docket Center Reading Room, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The hours of operation at the EPA Docket Center are 8:30 a.m.-4:30
p.m., Monday-Friday.
The EPA invites public input on this proposed action regarding
error correction of the designations of the Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County areas during the
30-day comment period provided in this document. In order to receive
full consideration, input from the public must be submitted to the
docket by September 23, 2019. At this time, the EPA is not asking for
public comment on areas beyond the three areas that are the subject of
this proposed action. In addition, in finalizing this action the EPA
will not revisit comments relating to the designations for these three
areas in Texas received in previous public comment periods. (The agency
has already responded to these comments in the previous designations
actions.) This opportunity for public comment does not affect any
rights or obligations of any state, territory, or tribe, or of the EPA,
which might otherwise exist pursuant to the CAA section 107(d).
Please refer to the FOR FURTHER INFORMATION CONTACT section in this
document for specific instructions on submitting comments and locating
relevant public documents.
B. What should I consider as I prepare my comments for the EPA?
1. Submitting CBI. Do not submit CBI information to the EPA through
https://www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI in any digital
storage media that you mail to the EPA, mark the outside of the digital
storage media as CBI and then identify electronically within the
digital storage media the specific information that is claimed as CBI.
In addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 Code of Federal Regulations
(CFR) part 2. Send or deliver information identified as CBI only to the
following address: Tiffany Purifoy, OAQPS CBI Officer, U.S. EPA, Office
of Air Quality Planning and Standards, Mail Code C404-02, Research
Triangle Park, NC 27711, telephone (919) 541-0878, email at
[email protected], Attention Docket ID No. EPA-HQ-OAR-2014-0464.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
[[Page 43763]]
C. Where can I find additional information for this rulemaking?
All documents in the docket are listed in the www.regulations.gov
index, identified by Docket ID No. EPA-HQ-OAR-2014-0464, and on the
agency's SO2 Designations website at https://www.epa.gov/sulfur-dioxide-designations. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the EPA Docket Center. Air
dispersion modeling input and output files are too large to post in the
docket or on the website and must be requested from the contact listed
in the FOR FURTHER INFORMATION CONTACT section. The EPA Docket Center
can be contacted at (202) 566-1744, and is located at EPA Docket Center
Reading Room, WJC West Building, Room 3334, 1301 Constitution Avenue
NW, Washington, DC 20004. The hours of operation at the EPA Docket
Center are 8:30 a.m.-4:30 p.m., Monday-Friday.
III. Environmental Justice Concerns
When the EPA establishes a new or revised NAAQS, the CAA requires
the EPA to designate all areas of the United States as either
nonattainment, attainment, or unclassifiable. This proposed action
would correct an error in the nonattainment designations for Freestone
and Anderson Counties, Rusk and Panola Counties, and Titus County in
Texas for the 2010 SO2 NAAQS. Area designations address
environmental justice concerns by ensuring that the public is properly
informed about the air quality in an area. In locations where air
quality does not meet the NAAQS, the CAA requires relevant state
authorities to initiate appropriate air quality management actions to
ensure that all those residing, working, attending school, or otherwise
present in those areas are protected, regardless of minority and
economic status.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is exempt from review by the Office of Management and
Budget because it is proposing to correct an error in previously
promulgated designations for portions of Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County in Texas for the
2010 1-hour SO2 NAAQS.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 regulatory action
because actions such as error corrections of air quality designations
associated with a new revised NAAQS are exempt under Executive Order
12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. In this action, the EPA is correcting the SO2 NAAQS
designations for portions of Freestone and Anderson Counties, Rusk and
Panola Counties, and Titus County in Texas promulgated previously on
December 13, 2016, and does not contain any information collection
activities.
D. Regulatory Flexibility Act (RFA)
This proposed error correction action under CAA section 110(k)(6)
is not subject to the RFA. The RFA applies only to rules subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act (APA), 5 U.S.C. 553, or any other statute. Section
107(d)(2)(B) of the CAA explicitly provides that designations are
exempt from the notice-and-comment provisions of the APA. In addition,
designations under CAA section 107(d) are not among the list of actions
that are subject to the notice-and-comment rulemaking requirements of
CAA section 307(d).
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. The
division of responsibility between the federal government and the
states for purposes of implementing the NAAQS is established under the
CAA.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Government
This action does not have tribal implications, as specified in
Executive Order 13175. This action concerns the designation of portions
of Freestone and Anderson Counties, Rusk and Panola Counties, and Titus
County in Texas for the 2010 SO2 NAAQS. The CAA provides for
states, territories, and eligible tribes to develop plans to regulate
emissions of air pollutants within their areas, as necessary, based on
the designations. The Tribal Authority Rule (TAR) provides tribes the
opportunity to apply for eligibility to develop and implement CAA
programs, such as programs to attain and maintain the SO2
NAAQS, but it leaves to the discretion of the tribe the decision of
whether to apply to develop these programs and which programs, or
appropriate elements of a program, the tribe will seek to adopt. This
rule does not have a substantial direct effect on one or more Indian
tribes. It would not create any additional requirements beyond those of
the SO2 NAAQS. This rule, if finalized, would revise the
designations for portions of Freestone and Anderson Counties, Rusk and
Panola Counties, and Titus County in Texas for the SO2
NAAQS, but no areas of Indian country are intended to be designated by
this action. Furthermore, this rule does not affect the relationship or
distribution of power and responsibilities between the federal
government and Indian tribes. The CAA and the TAR establish the
relationship of the federal government and tribes in developing plans
to attain the NAAQS, and this rule does nothing to modify that
relationship. Thus, Executive Order 13175 does not apply.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
[[Page 43764]]
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
documentation for this determination is contained in Section IV of this
preamble, ``Environmental Justice Concerns.''
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: August 13, 2019.
Anne L. Idsal,
Acting Assistant Administrator.
[FR Doc. 2019-18048 Filed 8-21-19; 8:45 am]
BILLING CODE 6560-50-P
