Air Plan Approval; Texas; Clean Data Determination for the 2010 1-Hour Primary Sulfur Dioxide National Ambient Air Quality Standard; Anderson and Freestone Counties and Titus County Nonattainment Areas, 26401-26406 [2021-10140]

Download as PDF 26401 Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations postpone the effectiveness of such rule or action. This action to approve SIP revisions consisting of the Allegheny County PM2.5 Plan may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: April 30, 2021. Diana Esher, Acting Regional Administrator, Region III. For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. § 52.2020 * Subpart NN—Pennsylvania 2. In § 52.2020, the table in paragraph (e)(1) is amended by adding the entry ■ State submittal date Name of non-regulatory SIP revision Applicable geographic area * * 2012 PM2.5 NAAQS Attainment Demonstration (including 2011 Base Year Emissions Inventory, Particulate Matter Precursor Contribution Demonstration, Reasonable Further Progress Demonstration, Demonstration of Interim Quantitative Milestones to Ensure Timely Attainment. and Motor Vehicle Emission Budgets for 2021) (excluding Section 8, Contingency Measures). * Allegheny County .. * * * * * * * * 3. Section 52.2023 is amended by adding paragraph (n) to read as follows: ■ * 09/30/19 10/02/20 khammond on DSKJM1Z7X2PROD with RULES * * * * (n) EPA conditionally approves the Contingency Measures element (Section 8) of the Attainment Plan (dated September 12, 2019) for the Allegheny County Area for the 2012 PM2.5 NAAQS, as submitted to EPA as a SIP revision by Pennsylvania on September 30, 2019. Pennsylvania shall submit a SIP revision within one year of EPA’s final conditional approval to remedy this condition, which satisfies all related requirements for contingency measures under CAA section 172(c)(9) and the PM2.5 Implementation Rule (specifically, 40 CFR 51.1003 and 40 CFR 51.1014). Pursuant to CAA section 110(k)(4), this conditional approval is based upon April 20, 2020 and April 7, 2020 letters from Pennsylvania and Allegheny County committing to submit a SIP to EPA to remedy the deficiencies of this conditional approval within 12 * * months of EPA’s conditional approval action. [FR Doc. 2021–09565 Filed 5–13–21; 8:45 am] VerDate Sep<11>2014 16:17 May 13, 2021 Jkt 253001 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R06–OAR–2020–0434; FRL–10023– 51–Region 6] Air Plan Approval; Texas; Clean Data Determination for the 2010 1-Hour Primary Sulfur Dioxide National Ambient Air Quality Standard; Anderson and Freestone Counties and Titus County Nonattainment Areas Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving a clean data determination for the Anderson and Freestone Counties and the Titus County nonattainment areas, concluding that SUMMARY: PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 * * Additional explanation * * * 5/14/21, [INSERT FEDERAL Contingency Measures (SecREGISTER CITATION]. tion 9) portion of the plan is Conditionally Approved, until 5/16/22. See 40 CFR 52.2023(n). Approval status. * Identification of plan. * * (e) * * * (1) * * * EPA approval date BILLING CODE 6560–50–P § 52.2023 ‘‘2012 PM2.5 NAAQS Attainment Demonstration (including 2011 Base Year Emissions Inventory, Particulate Matter Precursor Contribution Demonstration, Reasonable Further Progress Demonstration, Demonstration of Interim Quantitative Milestones to Ensure Timely Attainment. and Motor Vehicle Emission Budgets for 2021) (excluding Section 8, Contingency Measures)’’ at the end of the table to read as follows: * * each area is currently in attainment of the 2010 1-hour Primary Sulfur Dioxide National Ambient Air Quality Standard (SO2 NAAQS) per the EPA’s Clean Data Policy. The primary sources of Sulfur Dioxide emissions in these counties have permanently shut down and air quality in these areas is now attaining the SO2 NAAQS. This final action is supported by EPA’s evaluation of available monitoring data, emissions data, and air quality modeling. This action suspends the requirements for these areas to submit an attainment demonstration, a reasonable further progress plan, contingency measures, and other planning State Implementation Plan (SIP) revisions related to attainment of the 2010 SO2 NAAQS until the area is formally redesignated, or a violation of the NAAQS occurs. This action is being taken in accordance with the Clean Air Act. DATES: This final rule is effective on June 14, 2021. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–R06–OAR–2020–0434. All documents in the docket are listed on E:\FR\FM\14MYR1.SGM 14MYR1 26402 Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet. Publicly available docket materials are available electronically through https://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Robert Imhoff, EPA Region 6 Office, SO2 and Regional Haze Branch, (214) 665– 7262, or by email at Imhoff.Robert@ epa.gov. Out of an abundance of caution for members of the public and our staff, the EPA Region 6 office will be closed to the public to reduce the risk of transmitting COVID–19. Please call or email the contact listed above if you need alternative access to material indexed but not provided in the docket. SUPPLEMENTARY INFORMATION: Throughout this document ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ means the EPA. khammond on DSKJM1Z7X2PROD with RULES I. Background The background for this action is discussed in detail in our September 24, 2020 proposal (85 FR 60407). There, we proposed to determine that the Anderson and Freestone Counties and the Titus County nonattainment areas in Texas have attained the 2010 SO2 NAAQS per the EPA’s Clean Data Policy. A Clean Data Determination (CDD) suspends the requirements for an area to submit an attainment demonstration, a reasonable further progress plan, contingency measures, and other planning SIP revisions related to attainment of the 2010 SO2 NAAQS until the area is formally redesignated or a violation of the NAAQS occurs. The public comment period for this final action ended on September 24, 2020 and the EPA is responding to all relevant comments submitted in this final action. The EPA received three comment letters on the proposal. The comments are included in the publicly posted docket associated with this action at https://www.regulations.gov. The EPA did not respond to one comment which failed to raise an issue relevant to this final action. We address the remaining relevant comments below. After careful consideration of all comments, we have determined that we should finalize this action with no changes from the proposed action. II. Response to Comments Comment: One commenter expressed support of EPA’s determination that the Anderson and Freestone Counties and VerDate Sep<11>2014 16:17 May 13, 2021 Jkt 253001 Titus County areas have attained the 2010 SO2 NAAQS. EPA Response: The EPA acknowledges the commenter’s support of this final action. Comment: Sierra Club commented that issuance of this CDD would prevent attainment of the NAAQS as ‘‘expeditiously as practicable’’ in accordance with CAA ‘‘Sections 7409(b)(1) and 7502(c)(1).’’ EPA Response: The EPA disagrees that issuance of this CDD prevents expeditious attainment of the SO2 NAAQS.1 A CDD is the EPA’s formal determination that the air quality in a nonattainment area is currently in attainment of the NAAQS. Therefore, by its own terms, a determination that an area is in attainment does not delay or prevent attainment, rather it acknowledges that attainment has already been achieved. We do not agree that not issuing this final CDD would expedite attainment in any way since the areas have already attained the NAAQS. Comment: Sierra Club asserts that the EPA should not issue a CDD in this case because doing so would thwart permanent attainment of the SO2 NAAQS in these areas and would jeopardize maintenance. Sierra Club states that the EPA is not authorized to redesignate the two areas to unclassifiable or attainment and should make clear that EPA is not doing so in this action. Sierra Club claims that issuing this CDD would short circuit needed additional air quality planning requirements and delay permanent attainment. EPA Response: The EPA disagrees that issuing a CDD for these areas would delay permanent attainment or jeopardize maintenance of the SO2 NAAQS. We also clarify that we are not in this notice redesignating these areas to either unclassifiable or attainment, as is clearly stated in our proposal.2 While it is sometimes the case that an area’s attainment and monitored clean data results from temporary conditions, this is not true for these areas. As noted in the proposal, the EPA’s determination of attainment for these areas is due in large part to the fact that the primary sources 1 We note that the commenter cited to incorrect CAA provisions for the attainment date associated with these areas so we make note of that correction here. The correct provision is found in CAA Part D, Subpart 5, Section 7514(a) which states that Texas shall submit a nonattainment area planning SIP which shall provide for attainment ‘‘as expeditiously as practicable but no later than 5 years from the date of the nonattainment designation.’’ 2 85 FR 60412 (‘‘[T]his proposed action, if finalized, would not constitute a redesignation to attainment under Section 107(d)(3) of the CAA.’’). PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 of SO2 impacting these areas have permanently shut down. We therefore do not agree that the CDD’s suspension of attainment planning requirements for these areas delays permanent attainment or jeopardizes maintenance. We do agree that the CAA’s requirements for a redesignation to attainment have not been met; in particular, the state has not submitted a SIP revision under CAA section 107(d)(3)(E)(iv) that meets the requirements of CAA section 175A. Comment: The commenter states that the EPA has not issued CDD regulations under the SO2 NAAQS. The commenter claims that the only authority EPA points to for this action are CDD regulations and policy statements governing CDDs for PM and Ozone. The commenter continues that EPA cannot rely on regulations governing other NAAQS, especially where the Clean Air Act contains additional, wholly separate safeguards and mechanisms for monitoring, reporting, complying with, and enforcing those standards. EPA Response: The EPA disagrees with Sierra Club’s comment that the Agency was required to issue implementing regulations providing for a CDD for the SO2 NAAQS. The EPA’s authority to promulgate CDDs arises from our interpretation of the CAA’s nonattainment planning provisions, and in this action, we are relying on that statutory interpretation, not regulations implementing other NAAQS. The fact that the Agency has elected to codify that interpretation in some NAAQS implementation rules is irrelevant to our statutory authority for this action. As noted in our proposed rulemaking, ‘‘the legal bases set forth in the various guidance documents and regulations establishing the Clean Data Policy for other pollutants are equally pertinent to all NAAQS.’’ The EPA cites the PM–2.5, 1997 8-hour Ozone, and the 2008 8-hour Ozone regulations as additional evidence of its longstanding, judicially upheld interpretation of the CAA’s general NAAQS requirements. EPA’s interpretation of the statutory provisions governing ‘‘attainment planning’’ requirements throughout Part D of the CAA is that those requirements have no meaning for an area that is already attaining the NAAQS. Specifically, EPA’s Clean Data Policy is that, where the Agency has made a determination that an area is attaining the standard, states are not obligated to submit: An air quality modeling demonstration showing how an area will achieve attainment of the NAAQS (including reasonably available control measures needed to achieve attainment), a demonstration that the area is making reasonable further progress towards E:\FR\FM\14MYR1.SGM 14MYR1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations attainment, and contingency measures to be triggered for areas that fail to timely attain. The Agency’s interpretation of the Act is that the requirement to submit those attainment planning elements is suspended as long as an area continues to attain the standard. If the Agency makes a subsequent finding rescinding the CDD, the state’s obligation to submit those requirements immediately springs back. EPA has long applied its Clean Data Policy interpretation without codifying it in regulation, and courts have consistently acknowledged and upheld that application. See Sierra Club v. U.S. EPA, 99 F.3d 1551, 1555 (10th Cir. 1996) (upholding application of Clean Data Policy to ozone areas prior to such policy being codified into regulation); Latino Issues Forum v. U.S. EPA, 315 Fed. Appx. 651, 652 (9th Cir. 2009) (unpublished) (upholding application of Clean Data Policy for PM–10 area despite lack of regulation). In Latino Issues Forum, the court stated, ‘‘The Clean Data Policy expressly applies to areas currently attaining ozone and PM– 2.5 standards, but there is no similar written regulation governing areas attaining PM–10 standards. It was not unreasonable, however, for the EPA to apply the policy to an area that was currently attaining the PM–10 standards. As the EPA rationally explained, if an area is in compliance with PM–10 standards, then further progress for the purpose of ensuring attainment is not necessary.’’ 315 Fed. Appx. at 652. The commenter’s opinion that implementing the NAAQS in binding regulations is preferable to implementation via guidance does not diminish the EPA’s judicially upheld CAA authority to promulgate a CDD for these areas. The Agency agrees that mechanisms and safeguards for assessing an area’s continued attainment of the NAAQS are a key component to the Clean Data Policy because the Agency must be able to determine whether an area continues to attain a NAAQS and whether the CDD’s suspension of requirements continues to apply. However, such mechanisms may be reasonably tailored to the area in question. In the case of these two areas, the primary sources of SO2 which caused the area to be in nonattainment have permanently shut down, and there are no other significant sources of SO2 in the area. These factual circumstances do not warrant the Agency’s requirement of a complex or comprehensive ongoing reporting or monitoring mechanism. Comment: The commenter states that the EPA’s Clean Data Policy is in conflict with the CAA. The plain VerDate Sep<11>2014 16:17 May 13, 2021 Jkt 253001 language of the Act requires the EPA to ensure that the air stays clean and that no mandatory control requirement (requirements of part D) be lifted until a maintenance plan is in place. The commenter claims that the Clean Data Policy itself is arbitrarily inconsistent with the plain language of the CAA. EPA Response: The EPA does not agree with the commenter that the Clean Data Policy contravenes the letter and purpose of the CAA. Multiple U.S. Courts of Appeals have heard and dismissed challenges to the Clean Data Policy that are similar to those raised by the commenter. NRDC v. EPA, 571 F.3d 1245, 1260–61 (D.C. Cir. 2009); Latino Issues Forum v. U.S. EPA, 315 Fed. Appx. 651, 652 (9th Cir. 2009); Sierra Club v. U.S. EPA, 99 F.3d 1551 (10th Cir. 1996). In NRDC v. EPA, petitioners argued that the Clean Data Policy’s suspension of attainment planning requirements circumvented the plain language of the Act. While the D.C. Circuit dismissed some of the petitioners’ challenges because they were not raised in the comment period, the court rejected the remaining ‘‘plain language’’ claim that was properly preserved. It agreed with the Agency that ‘‘[t]he Act is . . . ambiguous as to what reductions are required when no further progress toward attainment is necessary—or for that matter, possible.’’ 571 F.3d at 1260. It held that ‘‘EPA reasonably resolved this ambiguity by concluding [reasonable further progress reductions] are simply inapplicable in that circumstance.’’ Id. And, similar to the commenter here, the petitioners in NRDC also argued that the Clean Data Policy ‘‘violates the mandate that all Part D requirements remain in force until an area has an approved maintenance plan in place,’’ citing CAA section 175A(c). 571 F.3d at 1260. The D.C. Circuit similarly disagreed, holding that ‘‘[t]he Clean Data Policy does not effect a redesignation; an area must still comply with the statutory requirements before it can be redesignated to attainment. Furthermore, Part D . . . remains in force insofar as it applies, but, as we have just seen, the EPA has reasonably concluded the provisions of the Act [regarding reasonable further progress] do not apply to an area that has attained the NAAQS.’’ Id. at 1260–61. The EPA has consistently interpreted the Act not to require the submission of planning requirements designed to achieve an area’s attainment when the area is factually attaining the NAAQS. PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 26403 See Seitz Memo,3 PM2.5 Memo, 70 FR 71612 (Nov. 29, 2005) (Phase 2 ozone regulations),4 SO2 Implementation Guidance from 2014,5 and PM–2.5 Implementation Rule from 2016.6 That is, the EPA’s position is that the Act’s requirements that pertain specifically to achieving attainment remain in force for areas that have not yet been redesignated, but they are inapplicable or suspended while the area continues to attain the NAAQS. The two statutory provisions raised by the commenter— CAA section 172(c)(1) (requirement to submit an attainment demonstration and reasonably available control measures) and 172(c)(2) (requirement to submit provisions that require reasonable further progress)—state as follows: ‘‘Such plan provisions shall provide for the implementation of all reasonably available control measures . . . and shall provide for attainment of the national primary ambient air quality standards’’; and ‘‘Such plan provisions shall require reasonable further progress.’’ These general nonattainment planning provisions found in Subpart 1 are either identical or functionally similar to the provisions at issue in the NRDC, Sierra Club, and Latino Issues Forum cases cited above, and the CAA is ambiguous as to whether a state is still required to submit, for example, a plan that provides for attainment of the NAAQS (i.e., an attainment demonstration) even if the area is already attaining the NAAQS. Because we think the purpose of the attainment demonstration and other attainment planning provisions has been fulfilled for areas that are currently attaining the NAAQS, we interpret the Act as not 3 (Seitz Memo) Memorandum of May 10, 1995, from John Seitz, Director Office of Air Quality Planning and Standards to Air Division Directors, ‘‘Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard.’’ Located at https://www.epa.gov/sites/production/files/201603/documents/clean_data_policy_signed_ 05101995.pdf. 4 Memorandum of December 14, 2004, from Steve Page, Director, EPA Office of Air Quality Planning and Standards to the EPA Air Division Directors, ‘‘Clean Data Policy for the Fine Particle National Ambient Air Quality Standards.’’ This document is available at: https://www.epa.gov/pmdesignations/ guidance.htm. 5 The memorandum of April 23, 2014, from Steve Page, Director, EPA Office of Air Quality Planning and Standards to the EPA Air Division Directors ‘‘Guidance for 1-hr SO2 Nonattainment Area SIP Submissions’’ provides guidance for the application of the clean data policy to the 2010 1-hour primary SO2 NAAQS. This document is available at https:// www.epa.gov/sites/production/files/2016-06/ documents/20140423guidance_nonattainment_ sip.pdf. 6 Final Rule Adopting 40 CFR 51.1015 (Clean Data Policy for PM 2.5 NAAQS), Aug. 24, 2016. 81 FR 58009. E:\FR\FM\14MYR1.SGM 14MYR1 khammond on DSKJM1Z7X2PROD with RULES 26404 Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations requiring submission of those provisions so long as the area continues to attain. The commenter states, without explaining, that ‘‘the plain language of the Act requires EPA to ensure the air stays clean and that no mandatory control requirement be lifted until a maintenance plan is in place.’’ This may be the commenter’s conclusion about the purpose of the CAA’s requirements, but we do not think the commenter has pointed to any plain language of the Act that imposes a requirement for the EPA to ‘‘ensure the air stays clean’’ nor that ‘‘no mandatory control requirement be lifted until a maintenance plan is in place;’’ but in any case, the Clean Data Policy is not inconsistent with those purposes. Comment: The commenter claims that issuance of a CDD for the Freestone and Anderson Counties (Big Brown Power Plant) and Titus County(Monticello power plant) areas is inconsistent with the EPA’s guidance that determination of attainment will be based on monitoring data (when available) and modeling information for the area, and/ or a demonstration that the control strategy in the SIP has been fully implemented. The commenter states that there is no modeling or the required three full years of monitoring data as evidence supporting a determination of attainment in the record and that EPA’s only evidence is the relinquishment of permits for the two sources. The commenter also notes that there is no monitor near the Monticello plant. The commenter continues that there is no inventory of other emission sources in the area, or assessment of whether nearby sources, such as the Welsh Power Plant are impairing air quality in the nonattainment areas. The commenter then concludes that the EPA fails to meet the criteria in the CDD policy and does not provide evidence demonstrating that the areas are attaining the NAAQS and will maintain the NAAQS. Additionally, the commentor claims that without monitoring or modeling, the EPA cannot evaluate whether the area remains in attainment or ensure attainment. EPA Response: We agree that EPA guidance suggests that three years of monitoring data and/or modeling over a three-year period is generally needed to determine attainment. This is particularly the case in areas where sources continue to emit SO2 emissions whose contribution to ambient air quality can be monitored or modeled. However, as explained in our proposal, for areas designated based on air quality modeling alone and where the source determined to be the primary cause of the violation has been permanently shut VerDate Sep<11>2014 16:17 May 13, 2021 Jkt 253001 down and is no longer emitting, the EPA finds that a streamlined analysis may be more appropriate, rather than requiring three years of monitoring and/or modeling. In this case, the allowable emissions limit for each areas’ primary cause of violation has been lowered to zero. The EPA believes that the permanent cessation of SO2 emissions from these primary sources in conjunction with relevant monitoring, emissions, and modeling data for each area provide sufficient evidence to support the findings of attainment. We disagree with the commenter’s claims that there is no evidence that the areas are attaining the NAAQS. The EPA’s determination is supported by relevant modeling, emissions, and monitoring data. As discussed in the proposal action, the primary evidence is that the sources of SO2 emissions in the nonattainment areas have ceased operations and have permanently shut down. Contrary to the commenter’s statements, the EPA did perform an analysis of modeling data to support this clean data determination.7 While neither the EPA nor Texas performed new modeling, the EPA analyzed the modeling that formed the basis of our initial nonattainment designations. A nonattainment area encompasses the area shown to be in violation of the standard and the principal source or sources that contributes to the violation. Our analysis of the maximum impacts of each area found that Big Brown and Monticello were responsible for almost 100% of the impacts on the maximum ambient concentration and thus, it was appropriate for these sources to be the only sources explicitly modeled. The EPA has no knowledge and Sierra Club provided no evidence of new sources, emissions, or operations that would contribute or cause a violation of the SO2 NAAQS in either area. Therefore, the EPA determined that rerunning the initial modeling would be redundant since the only change would be to revise the emissions for the modeled sources to zero. Instead, the EPA performed an analysis of that initial modeling to determine how the shutdown of the two power plant sources would impact the modeling results for each area. This analysis zeroed out the power plant emissions in each area leaving only background concentrations which would show each area in attainment of the 2010 SO2 NAAQS, as discussed at length in the proposed action. The EPA also analyzed all available monitoring data at the time of the proposal indicating large drops in ambient concentrations due to the 7 85 PO 00000 FR 60411. Frm 00058 cessation of emission from the power plant sources and supporting the determination that the areas are attaining the standard.8 With respect to the Freestone-Anderson nonattainment area, EPA noted in the proposal that while insufficient monitoring data for the period from 2017–2019 prevented calculation of a valid design value, the extremely low SO2 concentrations after the 2018 shutdown of Big Brown indicated that a preliminary design value based on the monitored 99th percentile concentrations in the nonattainment area for that period had dropped to 41 ppb, well below the 75 ppb SO2 NAAQS. At the time of this final action, we now have a full three years of data at the Big Brown monitor for the period 2018–2020; the Big Brown Power Plant ceased operations and emissions in February 2018 so this data primarily consists of monitored air quality without the major source of SO2 emissions. While the data for 2020 is not yet certified, the preliminary 3-year design value is 17 ppb and the EPA anticipates that there will be no material changes to that design value when data for 2020 is certified. Regarding the Titus County nonattainment area, the EPA noted in our proposal that the area did not have an installed monitor. However, in addition to the analysis of modeling data, the EPA determined that the monitoring data from the nearby Welsh Facility Monitor (approximately 12 miles from the Titus County Monticello Power Plant) could serve as an indicator of air quality in the Titus county area to support a CDD. The EPA performed a thorough analysis of the impacts the Monticello facility (Titus County) had on the Welsh Monitor before and after shutdown. The proposal indicated that the Welsh Monitor’s 2017–2019 threeyear design value is 28 ppb, in attainment of the standard. The EPA’s analysis showed that there are no other sources in the area between the Monticello and Welsh Facility and that concentrations decrease as you move farther from the Welsh source toward the Titus County nonattainment area which supports the EPA’s determination that concentrations in the Titus County nonattainment area are also in attainment. The Welsh monitor data was also evaluated to demonstrate the significant decrease in monitored concentrations post-shutdown when the monitor was downwind of the Monticello facility. Prior to the shutdown, the maximum concentration captured when wind blew from the direction of Monticello to the monitor 8 85 Fmt 4700 Sfmt 4700 FR 60411–60412. E:\FR\FM\14MYR1.SGM 14MYR1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations was 112.7 ppb. After the shutdown, the maximum concentrations from that direction in 2018 and 2019 were 6.8 ppb and 6 ppb respectively. This significant change in maximum concentrations at the Welsh monitor provides additional evidence to support a CDD. The commenter is incorrect in their claim that there was no inventory of other sources in the area. In our proposed action we reviewed the available emission inventory and stated that ‘‘Review of 2017 National Emission Inventory data shows one additional SO2 emission source, Freestone Energy Center, within the Freestone/Anderson nonattainment area with total annual SO2 emissions of only 11.7 tons. There are no other SO2 emission sources in the Titus County nonattainment area.’’ 9 We also provided a complete inventory of the primary sources causing nonattainment, demonstrating reported emissions from before and after shutdowns. Our analysis of the modeling, monitoring, and emissions data all support the determination that the area is attaining the standard. The commenter provides no new information or analysis to suggest otherwise. As a result of the permanent shutdown of the primary sources there are no significant SO2 emission sources in the areas, and no nearby sources that could cause nonattainment in the areas. While the Agency agrees that monitoring and/or modeling can be important for evaluating whether an area continues to attain, it is not universally required, and the assessment of whether an area continues to attain can be tailored to the facts and area in question. Based on the above information, the Agency does not believe a complex or comprehensive ongoing reporting or monitoring mechanism is necessary. The EPA also notes that these areas remain designated nonattainment and will remain so until the CAA’s redesignation criteria are satisfied. Therefore, any new major sources seeking to operate within the nonattainment area would be required to complete nonattainment new source review (NNSR) permitting that would evaluate any potential NAAQS impacts.10 Because the two power plants have had their operating permits revoked, any resumption of operations would require the sources to apply for new permits as new sources. This evidence collectively supports the EPA’s determination that the areas are now in attainment and the belief that it is highly unlikely that the areas will 9 85 FR 60411. CFR 51.165. Permit Requirements. 10 40 VerDate Sep<11>2014 16:17 May 13, 2021 Jkt 253001 violate the standard in the future. Finally, the requirements for redesignation of a nonattainment area to attainment include a determination that the improvement in air quality is due to permanent and enforceable reductions in emissions and a fully approved maintenance plan for the area. III. Final Action The EPA is taking final action to approve a CDD for the Anderson and Freestone Counties and the Titus County nonattainment areas based on each areas’ current attainment of the 2010 SO2 NAAQS. Pursuant to the EPA’s longstanding and judicially upheld interpretation of the CAA and our SO2 ‘‘Clean Data’’ policy provided for in the memorandum of April 23, 2014 from Steve Page, this action suspends certain required planning SIP revisions related to attainment of the 2010 SO2 NAAQS on the condition that the area continues to attain the 2010 SO2 NAAQS.11 12 Specifically, as discussed in the proposal action (85 FR 60407), the obligation for Texas to submit attainment demonstrations and associated reasonably available control measures, reasonable further progress plans, contingency measures for failure to attain or make reasonable progress, and other planning SIPs related to attainment of the 2010 SO2 NAAQS shall be suspended until such time as: (1) The area is redesignated to attainment for the 2010 1-hour Sulfur Dioxide NAAQS, at which time the requirements no longer apply; or (2) EPA determines that the area has violated the 2010 SO2 NAAQS, at which time the area is again required to submit such plans. V. Statutory and Executive Order Reviews This action, which makes a determination of attainment based on emissions data, air quality planning information, air quality monitoring data, and air quality modeling data, will result in the suspension of certain Federal requirements, and thus will not 11 Memorandum of December 14, 2004, from Steve Page, Director, EPA Office of Air Quality Planning and Standards to the EPA Air Division Directors, ‘‘Clean Data Policy for the Fine Particle National Ambient Air Quality Standards.’’ This document is available at: https://www.epa.gov/ pmdesignations/guidance.htm. 12 The memorandum of April 23, 2014, from Steve Page, Director, EPA Office of Air Quality Planning and Standards to the EPA Air Division Directors ‘‘Guidance for 1-hr SO2 Nonattainment Area SIP Submissions’’ provides guidance for the application of the clean data policy to the 2010 1-hour primary SO2 NAAQS. This document is available at https://www.epa.gov/sites/production/ files/2016-06/documents/20140423guidance_ nonattainment_sip.pdf. PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 26405 impose any additional requirements beyond those imposed by state law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this action does not apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other E:\FR\FM\14MYR1.SGM 14MYR1 26406 Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 13, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Sulfur Dioxide, Reporting and recordkeeping requirements. Dated: May 7, 2021. David Gray, Acting Regional Administrator, Region 6. PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart SS—Texas 2. Section 52.2277 is added to read as follows ■ khammond on DSKJM1Z7X2PROD with RULES § 52.2277 Control strategy and regulations: Sulfur Dioxide. (a) Determination of Attainment. Effective June 14, 2021, based upon EPA’s review of the available monitoring data, emissions data, and air quality modeling, EPA has determined that the Anderson and Freestone Counties and the Titus County nonattainment areas have attained the 2010 Primary 1-hour Sulfur Dioxide National Ambient Air Quality Standard (2010 SO2 NAAQS). Under the provisions of EPA’s Clean Data Policy, this clean data determination suspends the requirements for these areas to submit an attainment demonstration, 16:17 May 13, 2021 Jkt 253001 [FR Doc. 2021–10140 Filed 5–13–21; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 83 [EPA–HQ–OAR–2020–0044; FRL 10024–10– OAR] RIN 2060–AV18 Rescinding the Rule on Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process Environmental Protection Agency (EPA). ACTION: Interim final rule; request for comments. AGENCY: The Environmental Protection Agency (EPA) is rescinding the final rule entitled ‘‘Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.’’ The EPA is rescinding the rule because the changes advanced by the rule were inadvisable, untethered to the CAA, and not necessary to effectuate the purposes of the Act. DATES: This rule is effective June 14, 2021. The EPA will consider comments on this rule received on or before June 14, 2021. If a member of the public requests a public hearing by May 21, 2021, the EPA will hold a virtual public hearing on Wednesday, June 9, 2021. Refer to the SUPPLEMENTARY INFORMATION section below for additional information. ADDRESSES: You may send comments, identified by Docket ID No. EPA–HQ– OAR–2020–0044, by the following method: • Federal eRulemaking Portal: https://www.regulations.gov/ (our preferred method). Follow the online instructions for submitting comments. Instructions: All submissions received must include the Docket ID No. EPA– HQ–OAR–2020–0044 for this rulemaking. Comments received may be posted without change to https:// www.regulations.gov/, including any personal information provided. For SUMMARY: For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 52 as follows: VerDate Sep<11>2014 associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning State Implementation Plan revisions related to attainment of the standard for as long as this area continues to meet the 2010 SO2 NAAQS or until the area is formally redesignated. (b) [Reserved] PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 detailed instructions on sending comments and additional information on the rulemaking process, see the ‘‘Public Participation’’ heading of the SUPPLEMENTARY INFORMATION section of this document. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting COVID–19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via https:// www.regulations.gov/ or email, as there may be a delay in processing mail and faxes. Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA Docket Center services and the current status, please visit us online at https:// www.epa.gov/dockets. FOR FURTHER INFORMATION CONTACT: Leif Hockstad, Office of Air Policy and Program Support, Office of Air and Radiation, U.S. EPA, Mail Code 6103A, 1200 Pennsylvania Avenue NW, Washington, DC 20460; (202) 343–9432; email address: hockstad.leif@epa.gov. SUPPLEMENTARY INFORMATION: Acronyms APA Administrative Procedure Act BCA Benefit-Cost Analysis CAA Clean Air Act CBI Confidential Business Information CDC Centers for Disease Control and Prevention CFR Code of Federal Regulations CRA Congressional Review Act CRS Congressional Research Service E.O. Executive Order EPA Environmental Protection Agency FR Federal Register GAO Government Accountability Office NAAQS National Ambient Air Quality Standards NAS National Academies of Science, Engineering, and Medicine NESHAP National Emission Standards for Hazardous Air Pollutants NRDC National Resources Defense Council NTTAA National Technology Transfer and Advancement Act OIRA Office of Information and Regulatory Affairs OMB Office of Management and Budget OSHA Occupational Safety and Health Administration RIA Regulatory Impact Analysis RFA Regulatory Flexibility Act RTC Response to Comments document SAB Science Advisory Board UMRA Unfunded Mandates Reform Act U.S.C. United States Code Table of Contents I. General Information A. What action is the Agency taking? B. Does this action apply to me? E:\FR\FM\14MYR1.SGM 14MYR1

Agencies

[Federal Register Volume 86, Number 92 (Friday, May 14, 2021)]
[Rules and Regulations]
[Pages 26401-26406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10140]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2020-0434; FRL-10023-51-Region 6]


Air Plan Approval; Texas; Clean Data Determination for the 2010 
1-Hour Primary Sulfur Dioxide National Ambient Air Quality Standard; 
Anderson and Freestone Counties and Titus County Nonattainment Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving a clean data 
determination for the Anderson and Freestone Counties and the Titus 
County nonattainment areas, concluding that each area is currently in 
attainment of the 2010 1-hour Primary Sulfur Dioxide National Ambient 
Air Quality Standard (SO2 NAAQS) per the EPA's Clean Data 
Policy. The primary sources of Sulfur Dioxide emissions in these 
counties have permanently shut down and air quality in these areas is 
now attaining the SO2 NAAQS. This final action is supported 
by EPA's evaluation of available monitoring data, emissions data, and 
air quality modeling. This action suspends the requirements for these 
areas to submit an attainment demonstration, a reasonable further 
progress plan, contingency measures, and other planning State 
Implementation Plan (SIP) revisions related to attainment of the 2010 
SO2 NAAQS until the area is formally redesignated, or a 
violation of the NAAQS occurs. This action is being taken in accordance 
with the Clean Air Act.

DATES: This final rule is effective on June 14, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2020-0434. All documents in the docket are 
listed on

[[Page 26402]]

the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the internet. Publicly available docket materials are 
available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robert Imhoff, EPA Region 6 Office, 
SO2 and Regional Haze Branch, (214) 665-7262, or by email at 
[email protected]. Out of an abundance of caution for members of 
the public and our staff, the EPA Region 6 office will be closed to the 
public to reduce the risk of transmitting COVID-19. Please call or 
email the contact listed above if you need alternative access to 
material indexed but not provided in the docket.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our 
September 24, 2020 proposal (85 FR 60407). There, we proposed to 
determine that the Anderson and Freestone Counties and the Titus County 
nonattainment areas in Texas have attained the 2010 SO2 
NAAQS per the EPA's Clean Data Policy. A Clean Data Determination (CDD) 
suspends the requirements for an area to submit an attainment 
demonstration, a reasonable further progress plan, contingency 
measures, and other planning SIP revisions related to attainment of the 
2010 SO2 NAAQS until the area is formally redesignated or a 
violation of the NAAQS occurs.
    The public comment period for this final action ended on September 
24, 2020 and the EPA is responding to all relevant comments submitted 
in this final action.
    The EPA received three comment letters on the proposal. The 
comments are included in the publicly posted docket associated with 
this action at https://www.regulations.gov. The EPA did not respond to 
one comment which failed to raise an issue relevant to this final 
action. We address the remaining relevant comments below. After careful 
consideration of all comments, we have determined that we should 
finalize this action with no changes from the proposed action.

II. Response to Comments

    Comment: One commenter expressed support of EPA's determination 
that the Anderson and Freestone Counties and Titus County areas have 
attained the 2010 SO2 NAAQS.
    EPA Response: The EPA acknowledges the commenter's support of this 
final action.
    Comment: Sierra Club commented that issuance of this CDD would 
prevent attainment of the NAAQS as ``expeditiously as practicable'' in 
accordance with CAA ``Sections 7409(b)(1) and 7502(c)(1).''
    EPA Response: The EPA disagrees that issuance of this CDD prevents 
expeditious attainment of the SO2 NAAQS.\1\ A CDD is the 
EPA's formal determination that the air quality in a nonattainment area 
is currently in attainment of the NAAQS. Therefore, by its own terms, a 
determination that an area is in attainment does not delay or prevent 
attainment, rather it acknowledges that attainment has already been 
achieved. We do not agree that not issuing this final CDD would 
expedite attainment in any way since the areas have already attained 
the NAAQS.
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    \1\ We note that the commenter cited to incorrect CAA provisions 
for the attainment date associated with these areas so we make note 
of that correction here. The correct provision is found in CAA Part 
D, Subpart 5, Section 7514(a) which states that Texas shall submit a 
nonattainment area planning SIP which shall provide for attainment 
``as expeditiously as practicable but no later than 5 years from the 
date of the nonattainment designation.''
---------------------------------------------------------------------------

    Comment: Sierra Club asserts that the EPA should not issue a CDD in 
this case because doing so would thwart permanent attainment of the 
SO2 NAAQS in these areas and would jeopardize maintenance. 
Sierra Club states that the EPA is not authorized to redesignate the 
two areas to unclassifiable or attainment and should make clear that 
EPA is not doing so in this action. Sierra Club claims that issuing 
this CDD would short circuit needed additional air quality planning 
requirements and delay permanent attainment.
    EPA Response: The EPA disagrees that issuing a CDD for these areas 
would delay permanent attainment or jeopardize maintenance of the 
SO2 NAAQS. We also clarify that we are not in this notice 
redesignating these areas to either unclassifiable or attainment, as is 
clearly stated in our proposal.\2\ While it is sometimes the case that 
an area's attainment and monitored clean data results from temporary 
conditions, this is not true for these areas. As noted in the proposal, 
the EPA's determination of attainment for these areas is due in large 
part to the fact that the primary sources of SO2 impacting 
these areas have permanently shut down. We therefore do not agree that 
the CDD's suspension of attainment planning requirements for these 
areas delays permanent attainment or jeopardizes maintenance. We do 
agree that the CAA's requirements for a redesignation to attainment 
have not been met; in particular, the state has not submitted a SIP 
revision under CAA section 107(d)(3)(E)(iv) that meets the requirements 
of CAA section 175A.
---------------------------------------------------------------------------

    \2\ 85 FR 60412 (``[T]his proposed action, if finalized, would 
not constitute a redesignation to attainment under Section 107(d)(3) 
of the CAA.'').
---------------------------------------------------------------------------

    Comment: The commenter states that the EPA has not issued CDD 
regulations under the SO2 NAAQS. The commenter claims that 
the only authority EPA points to for this action are CDD regulations 
and policy statements governing CDDs for PM and Ozone. The commenter 
continues that EPA cannot rely on regulations governing other NAAQS, 
especially where the Clean Air Act contains additional, wholly separate 
safeguards and mechanisms for monitoring, reporting, complying with, 
and enforcing those standards.
    EPA Response: The EPA disagrees with Sierra Club's comment that the 
Agency was required to issue implementing regulations providing for a 
CDD for the SO2 NAAQS. The EPA's authority to promulgate 
CDDs arises from our interpretation of the CAA's nonattainment planning 
provisions, and in this action, we are relying on that statutory 
interpretation, not regulations implementing other NAAQS. The fact that 
the Agency has elected to codify that interpretation in some NAAQS 
implementation rules is irrelevant to our statutory authority for this 
action. As noted in our proposed rulemaking, ``the legal bases set 
forth in the various guidance documents and regulations establishing 
the Clean Data Policy for other pollutants are equally pertinent to all 
NAAQS.'' The EPA cites the PM-2.5, 1997 8-hour Ozone, and the 2008 8-
hour Ozone regulations as additional evidence of its longstanding, 
judicially upheld interpretation of the CAA's general NAAQS 
requirements.
    EPA's interpretation of the statutory provisions governing 
``attainment planning'' requirements throughout Part D of the CAA is 
that those requirements have no meaning for an area that is already 
attaining the NAAQS. Specifically, EPA's Clean Data Policy is that, 
where the Agency has made a determination that an area is attaining the 
standard, states are not obligated to submit: An air quality modeling 
demonstration showing how an area will achieve attainment of the NAAQS 
(including reasonably available control measures needed to achieve 
attainment), a demonstration that the area is making reasonable further 
progress towards

[[Page 26403]]

attainment, and contingency measures to be triggered for areas that 
fail to timely attain. The Agency's interpretation of the Act is that 
the requirement to submit those attainment planning elements is 
suspended as long as an area continues to attain the standard. If the 
Agency makes a subsequent finding rescinding the CDD, the state's 
obligation to submit those requirements immediately springs back.
    EPA has long applied its Clean Data Policy interpretation without 
codifying it in regulation, and courts have consistently acknowledged 
and upheld that application. See Sierra Club v. U.S. EPA, 99 F.3d 1551, 
1555 (10th Cir. 1996) (upholding application of Clean Data Policy to 
ozone areas prior to such policy being codified into regulation); 
Latino Issues Forum v. U.S. EPA, 315 Fed. Appx. 651, 652 (9th Cir. 
2009) (unpublished) (upholding application of Clean Data Policy for PM-
10 area despite lack of regulation). In Latino Issues Forum, the court 
stated, ``The Clean Data Policy expressly applies to areas currently 
attaining ozone and PM-2.5 standards, but there is no similar written 
regulation governing areas attaining PM-10 standards. It was not 
unreasonable, however, for the EPA to apply the policy to an area that 
was currently attaining the PM-10 standards. As the EPA rationally 
explained, if an area is in compliance with PM-10 standards, then 
further progress for the purpose of ensuring attainment is not 
necessary.'' 315 Fed. Appx. at 652. The commenter's opinion that 
implementing the NAAQS in binding regulations is preferable to 
implementation via guidance does not diminish the EPA's judicially 
upheld CAA authority to promulgate a CDD for these areas.
    The Agency agrees that mechanisms and safeguards for assessing an 
area's continued attainment of the NAAQS are a key component to the 
Clean Data Policy because the Agency must be able to determine whether 
an area continues to attain a NAAQS and whether the CDD's suspension of 
requirements continues to apply. However, such mechanisms may be 
reasonably tailored to the area in question. In the case of these two 
areas, the primary sources of SO2 which caused the area to 
be in nonattainment have permanently shut down, and there are no other 
significant sources of SO2 in the area. These factual 
circumstances do not warrant the Agency's requirement of a complex or 
comprehensive ongoing reporting or monitoring mechanism.
    Comment: The commenter states that the EPA's Clean Data Policy is 
in conflict with the CAA. The plain language of the Act requires the 
EPA to ensure that the air stays clean and that no mandatory control 
requirement (requirements of part D) be lifted until a maintenance plan 
is in place. The commenter claims that the Clean Data Policy itself is 
arbitrarily inconsistent with the plain language of the CAA.
    EPA Response: The EPA does not agree with the commenter that the 
Clean Data Policy contravenes the letter and purpose of the CAA. 
Multiple U.S. Courts of Appeals have heard and dismissed challenges to 
the Clean Data Policy that are similar to those raised by the 
commenter. NRDC v. EPA, 571 F.3d 1245, 1260-61 (D.C. Cir. 2009); Latino 
Issues Forum v. U.S. EPA, 315 Fed. Appx. 651, 652 (9th Cir. 2009); 
Sierra Club v. U.S. EPA, 99 F.3d 1551 (10th Cir. 1996).
    In NRDC v. EPA, petitioners argued that the Clean Data Policy's 
suspension of attainment planning requirements circumvented the plain 
language of the Act. While the D.C. Circuit dismissed some of the 
petitioners' challenges because they were not raised in the comment 
period, the court rejected the remaining ``plain language'' claim that 
was properly preserved. It agreed with the Agency that ``[t]he Act is . 
. . ambiguous as to what reductions are required when no further 
progress toward attainment is necessary--or for that matter, 
possible.'' 571 F.3d at 1260. It held that ``EPA reasonably resolved 
this ambiguity by concluding [reasonable further progress reductions] 
are simply inapplicable in that circumstance.'' Id.
    And, similar to the commenter here, the petitioners in NRDC also 
argued that the Clean Data Policy ``violates the mandate that all Part 
D requirements remain in force until an area has an approved 
maintenance plan in place,'' citing CAA section 175A(c). 571 F.3d at 
1260. The D.C. Circuit similarly disagreed, holding that ``[t]he Clean 
Data Policy does not effect a redesignation; an area must still comply 
with the statutory requirements before it can be redesignated to 
attainment. Furthermore, Part D . . . remains in force insofar as it 
applies, but, as we have just seen, the EPA has reasonably concluded 
the provisions of the Act [regarding reasonable further progress] do 
not apply to an area that has attained the NAAQS.'' Id. at 1260-61.
    The EPA has consistently interpreted the Act not to require the 
submission of planning requirements designed to achieve an area's 
attainment when the area is factually attaining the NAAQS. See Seitz 
Memo,\3\ PM2.5 Memo, 70 FR 71612 (Nov. 29, 2005) (Phase 2 
ozone regulations),\4\ SO2 Implementation Guidance from 
2014,\5\ and PM-2.5 Implementation Rule from 2016.\6\ That is, the 
EPA's position is that the Act's requirements that pertain specifically 
to achieving attainment remain in force for areas that have not yet 
been redesignated, but they are inapplicable or suspended while the 
area continues to attain the NAAQS. The two statutory provisions raised 
by the commenter--CAA section 172(c)(1) (requirement to submit an 
attainment demonstration and reasonably available control measures) and 
172(c)(2) (requirement to submit provisions that require reasonable 
further progress)--state as follows: ``Such plan provisions shall 
provide for the implementation of all reasonably available control 
measures . . . and shall provide for attainment of the national primary 
ambient air quality standards''; and ``Such plan provisions shall 
require reasonable further progress.'' These general nonattainment 
planning provisions found in Subpart 1 are either identical or 
functionally similar to the provisions at issue in the NRDC, Sierra 
Club, and Latino Issues Forum cases cited above, and the CAA is 
ambiguous as to whether a state is still required to submit, for 
example, a plan that provides for attainment of the NAAQS (i.e., an 
attainment demonstration) even if the area is already attaining the 
NAAQS. Because we think the purpose of the attainment demonstration and 
other attainment planning provisions has been fulfilled for areas that 
are currently attaining the NAAQS, we interpret the Act as not

[[Page 26404]]

requiring submission of those provisions so long as the area continues 
to attain. The commenter states, without explaining, that ``the plain 
language of the Act requires EPA to ensure the air stays clean and that 
no mandatory control requirement be lifted until a maintenance plan is 
in place.'' This may be the commenter's conclusion about the purpose of 
the CAA's requirements, but we do not think the commenter has pointed 
to any plain language of the Act that imposes a requirement for the EPA 
to ``ensure the air stays clean'' nor that ``no mandatory control 
requirement be lifted until a maintenance plan is in place;'' but in 
any case, the Clean Data Policy is not inconsistent with those 
purposes.
---------------------------------------------------------------------------

    \3\ (Seitz Memo) Memorandum of May 10, 1995, from John Seitz, 
Director Office of Air Quality Planning and Standards to Air 
Division Directors, ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment 
Areas Meeting the Ozone National Ambient Air Quality Standard.'' 
Located at https://www.epa.gov/sites/production/files/2016-03/documents/clean_data_policy_signed_05101995.pdf.
    \4\ Memorandum of December 14, 2004, from Steve Page, Director, 
EPA Office of Air Quality Planning and Standards to the EPA Air 
Division Directors, ``Clean Data Policy for the Fine Particle 
National Ambient Air Quality Standards.'' This document is available 
at: https://www.epa.gov/pmdesignations/guidance.htm.
    \5\ The memorandum of April 23, 2014, from Steve Page, Director, 
EPA Office of Air Quality Planning and Standards to the EPA Air 
Division Directors ``Guidance for 1-hr SO2 Nonattainment 
Area SIP Submissions'' provides guidance for the application of the 
clean data policy to the 2010 1-hour primary SO2 NAAQS. 
This document is available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf.
    \6\ Final Rule Adopting 40 CFR 51.1015 (Clean Data Policy for PM 
2.5 NAAQS), Aug. 24, 2016. 81 FR 58009.
---------------------------------------------------------------------------

    Comment: The commenter claims that issuance of a CDD for the 
Freestone and Anderson Counties (Big Brown Power Plant) and Titus 
County(Monticello power plant) areas is inconsistent with the EPA's 
guidance that determination of attainment will be based on monitoring 
data (when available) and modeling information for the area, and/or a 
demonstration that the control strategy in the SIP has been fully 
implemented. The commenter states that there is no modeling or the 
required three full years of monitoring data as evidence supporting a 
determination of attainment in the record and that EPA's only evidence 
is the relinquishment of permits for the two sources. The commenter 
also notes that there is no monitor near the Monticello plant. The 
commenter continues that there is no inventory of other emission 
sources in the area, or assessment of whether nearby sources, such as 
the Welsh Power Plant are impairing air quality in the nonattainment 
areas. The commenter then concludes that the EPA fails to meet the 
criteria in the CDD policy and does not provide evidence demonstrating 
that the areas are attaining the NAAQS and will maintain the NAAQS. 
Additionally, the commentor claims that without monitoring or modeling, 
the EPA cannot evaluate whether the area remains in attainment or 
ensure attainment.
    EPA Response: We agree that EPA guidance suggests that three years 
of monitoring data and/or modeling over a three-year period is 
generally needed to determine attainment. This is particularly the case 
in areas where sources continue to emit SO2 emissions whose 
contribution to ambient air quality can be monitored or modeled. 
However, as explained in our proposal, for areas designated based on 
air quality modeling alone and where the source determined to be the 
primary cause of the violation has been permanently shut down and is no 
longer emitting, the EPA finds that a streamlined analysis may be more 
appropriate, rather than requiring three years of monitoring and/or 
modeling. In this case, the allowable emissions limit for each areas' 
primary cause of violation has been lowered to zero. The EPA believes 
that the permanent cessation of SO2 emissions from these 
primary sources in conjunction with relevant monitoring, emissions, and 
modeling data for each area provide sufficient evidence to support the 
findings of attainment.
    We disagree with the commenter's claims that there is no evidence 
that the areas are attaining the NAAQS. The EPA's determination is 
supported by relevant modeling, emissions, and monitoring data. As 
discussed in the proposal action, the primary evidence is that the 
sources of SO2 emissions in the nonattainment areas have 
ceased operations and have permanently shut down. Contrary to the 
commenter's statements, the EPA did perform an analysis of modeling 
data to support this clean data determination.\7\ While neither the EPA 
nor Texas performed new modeling, the EPA analyzed the modeling that 
formed the basis of our initial nonattainment designations. A 
nonattainment area encompasses the area shown to be in violation of the 
standard and the principal source or sources that contributes to the 
violation. Our analysis of the maximum impacts of each area found that 
Big Brown and Monticello were responsible for almost 100% of the 
impacts on the maximum ambient concentration and thus, it was 
appropriate for these sources to be the only sources explicitly 
modeled. The EPA has no knowledge and Sierra Club provided no evidence 
of new sources, emissions, or operations that would contribute or cause 
a violation of the SO2 NAAQS in either area. Therefore, the 
EPA determined that rerunning the initial modeling would be redundant 
since the only change would be to revise the emissions for the modeled 
sources to zero. Instead, the EPA performed an analysis of that initial 
modeling to determine how the shutdown of the two power plant sources 
would impact the modeling results for each area. This analysis zeroed 
out the power plant emissions in each area leaving only background 
concentrations which would show each area in attainment of the 2010 
SO2 NAAQS, as discussed at length in the proposed action.
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    \7\ 85 FR 60411.
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    The EPA also analyzed all available monitoring data at the time of 
the proposal indicating large drops in ambient concentrations due to 
the cessation of emission from the power plant sources and supporting 
the determination that the areas are attaining the standard.\8\ With 
respect to the Freestone-Anderson nonattainment area, EPA noted in the 
proposal that while insufficient monitoring data for the period from 
2017-2019 prevented calculation of a valid design value, the extremely 
low SO2 concentrations after the 2018 shutdown of Big Brown 
indicated that a preliminary design value based on the monitored 99th 
percentile concentrations in the nonattainment area for that period had 
dropped to 41 ppb, well below the 75 ppb SO2 NAAQS. At the 
time of this final action, we now have a full three years of data at 
the Big Brown monitor for the period 2018-2020; the Big Brown Power 
Plant ceased operations and emissions in February 2018 so this data 
primarily consists of monitored air quality without the major source of 
SO2 emissions. While the data for 2020 is not yet certified, 
the preliminary 3-year design value is 17 ppb and the EPA anticipates 
that there will be no material changes to that design value when data 
for 2020 is certified.
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    \8\ 85 FR 60411-60412.
---------------------------------------------------------------------------

    Regarding the Titus County nonattainment area, the EPA noted in our 
proposal that the area did not have an installed monitor. However, in 
addition to the analysis of modeling data, the EPA determined that the 
monitoring data from the nearby Welsh Facility Monitor (approximately 
12 miles from the Titus County Monticello Power Plant) could serve as 
an indicator of air quality in the Titus county area to support a CDD. 
The EPA performed a thorough analysis of the impacts the Monticello 
facility (Titus County) had on the Welsh Monitor before and after 
shutdown. The proposal indicated that the Welsh Monitor's 2017-2019 
three-year design value is 28 ppb, in attainment of the standard. The 
EPA's analysis showed that there are no other sources in the area 
between the Monticello and Welsh Facility and that concentrations 
decrease as you move farther from the Welsh source toward the Titus 
County nonattainment area which supports the EPA's determination that 
concentrations in the Titus County nonattainment area are also in 
attainment. The Welsh monitor data was also evaluated to demonstrate 
the significant decrease in monitored concentrations post-shutdown when 
the monitor was downwind of the Monticello facility. Prior to the 
shutdown, the maximum concentration captured when wind blew from the 
direction of Monticello to the monitor

[[Page 26405]]

was 112.7 ppb. After the shutdown, the maximum concentrations from that 
direction in 2018 and 2019 were 6.8 ppb and 6 ppb respectively. This 
significant change in maximum concentrations at the Welsh monitor 
provides additional evidence to support a CDD.
    The commenter is incorrect in their claim that there was no 
inventory of other sources in the area. In our proposed action we 
reviewed the available emission inventory and stated that ``Review of 
2017 National Emission Inventory data shows one additional 
SO2 emission source, Freestone Energy Center, within the 
Freestone/Anderson nonattainment area with total annual SO2 
emissions of only 11.7 tons. There are no other SO2 emission 
sources in the Titus County nonattainment area.'' \9\ We also provided 
a complete inventory of the primary sources causing nonattainment, 
demonstrating reported emissions from before and after shutdowns.
---------------------------------------------------------------------------

    \9\ 85 FR 60411.
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    Our analysis of the modeling, monitoring, and emissions data all 
support the determination that the area is attaining the standard. The 
commenter provides no new information or analysis to suggest otherwise. 
As a result of the permanent shutdown of the primary sources there are 
no significant SO2 emission sources in the areas, and no 
nearby sources that could cause nonattainment in the areas. While the 
Agency agrees that monitoring and/or modeling can be important for 
evaluating whether an area continues to attain, it is not universally 
required, and the assessment of whether an area continues to attain can 
be tailored to the facts and area in question. Based on the above 
information, the Agency does not believe a complex or comprehensive 
ongoing reporting or monitoring mechanism is necessary. The EPA also 
notes that these areas remain designated nonattainment and will remain 
so until the CAA's redesignation criteria are satisfied. Therefore, any 
new major sources seeking to operate within the nonattainment area 
would be required to complete nonattainment new source review (NNSR) 
permitting that would evaluate any potential NAAQS impacts.\10\ Because 
the two power plants have had their operating permits revoked, any 
resumption of operations would require the sources to apply for new 
permits as new sources. This evidence collectively supports the EPA's 
determination that the areas are now in attainment and the belief that 
it is highly unlikely that the areas will violate the standard in the 
future. Finally, the requirements for redesignation of a nonattainment 
area to attainment include a determination that the improvement in air 
quality is due to permanent and enforceable reductions in emissions and 
a fully approved maintenance plan for the area.
---------------------------------------------------------------------------

    \10\ 40 CFR 51.165. Permit Requirements.
---------------------------------------------------------------------------

III. Final Action

    The EPA is taking final action to approve a CDD for the Anderson 
and Freestone Counties and the Titus County nonattainment areas based 
on each areas' current attainment of the 2010 SO2 NAAQS. 
Pursuant to the EPA's longstanding and judicially upheld interpretation 
of the CAA and our SO2 ``Clean Data'' policy provided for in 
the memorandum of April 23, 2014 from Steve Page, this action suspends 
certain required planning SIP revisions related to attainment of the 
2010 SO2 NAAQS on the condition that the area continues to 
attain the 2010 SO2 NAAQS.11 12 Specifically, as 
discussed in the proposal action (85 FR 60407), the obligation for 
Texas to submit attainment demonstrations and associated reasonably 
available control measures, reasonable further progress plans, 
contingency measures for failure to attain or make reasonable progress, 
and other planning SIPs related to attainment of the 2010 
SO2 NAAQS shall be suspended until such time as: (1) The 
area is redesignated to attainment for the 2010 1-hour Sulfur Dioxide 
NAAQS, at which time the requirements no longer apply; or (2) EPA 
determines that the area has violated the 2010 SO2 NAAQS, at 
which time the area is again required to submit such plans.
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    \11\ Memorandum of December 14, 2004, from Steve Page, Director, 
EPA Office of Air Quality Planning and Standards to the EPA Air 
Division Directors, ``Clean Data Policy for the Fine Particle 
National Ambient Air Quality Standards.'' This document is available 
at: https://www.epa.gov/pmdesignations/guidance.htm.
    \12\ The memorandum of April 23, 2014, from Steve Page, 
Director, EPA Office of Air Quality Planning and Standards to the 
EPA Air Division Directors ``Guidance for 1-hr SO2 
Nonattainment Area SIP Submissions'' provides guidance for the 
application of the clean data policy to the 2010 1-hour primary 
SO2 NAAQS. This document is available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf.
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V. Statutory and Executive Order Reviews

    This action, which makes a determination of attainment based on 
emissions data, air quality planning information, air quality 
monitoring data, and air quality modeling data, will result in the 
suspension of certain Federal requirements, and thus will not impose 
any additional requirements beyond those imposed by state law. For that 
reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this action does not apply on any Indian reservation 
land or in any other area where EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other

[[Page 26406]]

required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 13, 2021. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Sulfur Dioxide, Reporting and recordkeeping requirements.

    Dated: May 7, 2021.
David Gray,
Acting Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. Section 52.2277 is added to read as follows


Sec.  52.2277  Control strategy and regulations: Sulfur Dioxide.

    (a) Determination of Attainment. Effective June 14, 2021, based 
upon EPA's review of the available monitoring data, emissions data, and 
air quality modeling, EPA has determined that the Anderson and 
Freestone Counties and the Titus County nonattainment areas have 
attained the 2010 Primary 1-hour Sulfur Dioxide National Ambient Air 
Quality Standard (2010 SO2 NAAQS). Under the provisions of 
EPA's Clean Data Policy, this clean data determination suspends the 
requirements for these areas to submit an attainment demonstration, 
associated reasonably available control measures, a reasonable further 
progress plan, contingency measures, and other planning State 
Implementation Plan revisions related to attainment of the standard for 
as long as this area continues to meet the 2010 SO2 NAAQS or 
until the area is formally redesignated.
    (b) [Reserved]

[FR Doc. 2021-10140 Filed 5-13-21; 8:45 am]
BILLING CODE 6560-50-P
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