[Federal Register Volume 81, Number 69 (Monday, April 11, 2016)]
[Proposed Rules]
[Pages 21290-21295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08275]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2012-0985; FRL-9944-84-Region 6]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Interstate Transport of Air Pollution for the 2008 Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) proposes to
disapprove the portion of a Texas State
[[Page 21291]]
Implementation Plan (SIP) submittal pertaining to interstate transport
of air pollution which will significantly contribute to nonattainment
or interfere with maintenance of the 2008 ozone National Ambient Air
Quality Standards (NAAQS) in other states. Disapproval will establish a
2-year deadline for the EPA to promulgate a Federal Implementation Plan
(FIP) for Texas to address the Clean Air Act (CAA) interstate transport
requirements pertaining to significant contribution to nonattainment
and interference with maintenance of the 2008 ozone NAAQS in other
states, unless the EPA approves a SIP that meets these requirements.
Disapproval does not start a mandatory sanctions clock for Texas.
DATES: Comments must be received on or before May 11, 2016.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2012-0985, at http://www.regulations.gov or via email to
[email protected]. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact Carl Young, 214-665-6645,
[email protected]. For the full EPA public comment policy, information
about CBI or multimedia submissions, and general guidance on making
effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region 6,
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available at either location (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Carl Young, 214-665-6645,
[email protected]. To inspect the hard copy materials, please schedule
an appointment with Mr. Young or Mr. Bill Deese at 214-665-7253.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means the EPA.
I. Background
On March 12, 2008, the EPA revised the levels of the primary and
secondary 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075
ppm (73 FR 16436). The CAA requires states to submit, within three
years after promulgation of a new or revised standard, SIPs meeting the
applicable ``infrastructure'' elements of sections 110(a)(1) and (2).
One of these applicable infrastructure elements, CAA section
110(a)(2)(D)(i), requires SIPs to contain ``good neighbor'' provisions
to prohibit certain adverse air quality effects on neighboring states
due to interstate transport of pollution. There are four sub-elements
within CAA section 110(a)(2)(D)(i). This action reviews how the first
two sub-elements of the good neighbor provisions, at CAA section
110(a)(2)(D)(i)(I) were addressed in an infrastructure SIP submission
from Texas for the 2008 ozone NAAQS. These sub-elements require that
each SIP for a new or revised standard contain adequate provisions to
prohibit any emissions activity within the state from emitting air
pollutants that will ``contribute significantly to nonattainment'' or
``interfere with maintenance'' of the applicable air quality standard
in any other state.
Ozone is not emitted directly into the air, but is created by
chemical reactions between oxides of nitrogen (NOX) and
volatile organic compounds (VOCs) in the presence of sunlight.
Emissions from electric utilities and industrial facilities, motor
vehicles, gasoline vapors, and chemical solvents are some of the major
sources of NOX and VOCs. Because ground-level ozone
formation increases with temperature and sunlight, ozone levels are
generally higher during the summer. Increased temperature also
increases emissions of VOCs and can indirectly increase NOX
emissions.\1\
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\1\ 80 FR 75706, 75711.
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The EPA has addressed the interstate transport requirements of CAA
section 110(a)(2)(D)(i)(I) with respect to ozone in several past
regulatory actions. The NOX SIP Call, promulgated in 1998,
addressed the good neighbor provision for the 1979 1-hour ozone NAAQS
and the 1997 8-hour ozone NAAQS.\2\ The rule required 22 states and the
District of Columbia to amend their SIPs and limit NOX
emissions that contribute to ozone nonattainment. The Clean Air
Interstate Rule (CAIR), promulgated in 2005, addressed both the 1997
PM2.5 and ozone standards under the good neighbor provision
and required SIP revisions in 28 states and the District of Columbia to
limit NOX and SO2 emissions that contribute to
nonattainment of those standards.\3\ CAIR was remanded to the EPA by
the D.C. Circuit in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.
2008), modified on reh'g, 550 F.3d 1176. In response to the remand of
CAIR, the EPA promulgated the Cross State Air Pollution Rule (CSAPR) on
July 6, 2011, to address CAA section 110(a)(2)(D)(i)(I) in the eastern
\4\ portion of the United States.\5\ With respect to ozone, CSAPR
limited ozone season nitrogen oxide (NOX) emissions from
electric generating units (EGUs). CSAPR addressed interstate transport
as to the 1997 8-hour ozone NAAQS, the 1997 annual fine particulate
matter (PM2.5) NAAQS and the 2006 24-hour PM2.5
NAAQS, but did not address the 2008 8-hour ozone standard.
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\2\ NOX SIP Call, 63 FR 57371 (October 27, 1998).
\3\ Clean Air Interstate Rule (CAIR), 70 FR 25172 (May 12,
2005).
\4\ When we discuss the eastern United States we mean the
contiguous U.S. states excluding the 11 western states of Arizona,
California, Colorado, Idaho, Montana, New Mexico, Nevada, Oregon,
Utah, Washington, and Wyoming.
\5\ Cross-State Air Pollution Rule (CSAPR), 76 FR 48208 (August
8, 2011).
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II. Texas SIP Revision Addressing Interstate Transport of Air Pollution
for the 2008 Ozone NAAQS
On December 13, 2012, Texas submitted a SIP revision addressing
certain CAA infrastructure requirements for the 2008 ozone NAAQS. This
action concerns the portion of the December 13, 2012, SIP submittal
pertaining to the CAA section 110(a)(2)(D)(i)(I) requirement to address
the interstate transport of air pollution which will significantly
contribute to nonattainment or interference with maintenance of the
2008 ozone NAAQS in other states. In a separate action, we disapproved
the portion of the SIP submittal pertaining to the CAA section
110(a)(2)(D)(i)(II) requirement to address the interstate transport of
air pollution which will interfere with other states' programs for
visibility protection (81 FR 296, January 5, 2016). We proposed to
approve the other portions of the infrastructure SIP submittal on
February 8, 2016 (81 FR 6483).
In the portion of its SIP submittal addressing interstate
transport, Texas provided an analysis of monitoring data, wind
patterns, emissions data and
[[Page 21292]]
emissions controls. Texas notes that, at the time of the SIP submittal,
it had not yet implemented control measures in its two areas designated
nonattainment for the 2008 ozone NAAQS because the nonattainment SIP
was not due until 2015. Texas cited numerous control measures that were
implemented to address prior ozone NAAQS. Texas also includes 1990-2010
design value data for the areas designated nonattainment for the 2008
ozone NAAQS in Texas and in nearby nonattainment areas and notes that
design values have generally decreased since 2000. Texas focuses on
wind patterns and the distance between in-state ozone nonattainment
areas (Dallas-Fort Worth and the Houston-Galveston-Brazoria) and the
closest designated nonattainment areas (Baton Rouge, Louisiana, and
Memphis, Tennessee) in other states, and monitored data in between
these areas. Texas concluded that it is difficult to determine how much
ozone at the out-of-state nonattainment areas is due to transport of
ozone and how much is due to other sources of ozone precursors.
Texas's analysis includes 2010 8-hour ozone design values from
monitors in states located in the EPA Region 6.\6\ Texas summarized
NOX emission trends for Texas EGUs from 1995-2011 and
discusses how federal rulemakings, such as CAIR and the CSAPR affected
EGU emissions. Lastly, Texas described additional non-EGU control
measures and SIPs that reduce NOX and VOC emissions within
the state.
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\6\ These states are Arkansas, Louisiana, Oklahoma, and New
Mexico.
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Texas concluded in its analysis that (based on monitoring data) due
to (1) decreases in ozone design values, and (2) existing control
measures, emissions from sources within the state do not contribute
significantly to nonattainment or interfere with maintenance of the
2008 ozone NAAQS in any other state. A copy of the Texas SIP submittal
may be accessed online at http://www.regulations.gov, Docket No. EPA-
R06-OAR-2012-0985.
III. The EPA's Evaluation
As we noted above, the Texas SIP submittal included an analysis of
monitoring data, wind patterns, emissions data and emissions controls.
The information provided in the Texas analysis is helpful in assessing
past air quality and we agree that ozone concentrations have decreased
since 2000. However, we disagree with Texas's conclusion concerning
interstate transport for the 2008 ozone NAAQS.
Texas limits its discussion of data only to areas designated
nonattainment in states that are geographically closest to Texas
(Arizona, Arkansas, Colorado, Illinois, Indiana, Louisiana,
Mississippi, Missouri, Tennessee, and Wisconsin). This approach is
incomplete for two reasons. First, transported emissions may cause an
area to measure exceedances of the standard even if that area is not
formally designated nonattainment by the EPA. However, Texas only
evaluated its potential impact on the nearest designated nonattainment
areas in other states without considering potential exceedances in
other areas not designated nonattainment. Thus, Texas did not fully
evaluate whether emissions from the state significantly contribute to
nonattainment in other states.
Second, in remanding CAIR to the EPA in the North Carolina
decision, the D.C. Circuit explained that the regulating authority must
give the ``interfere with maintenance'' clause of section
110(a)(2)(D)(i)(I) ``independent significance'' by evaluating the
impact of upwind state emissions on downwind areas that, while
currently in attainment, are at risk of future nonattainment,
considering historic variability.\7\ Texas does not give the
``interfere with maintenance'' clause of section 110(a)(2)(D)(i)(I)
independent significance because its analysis did not attempt to
evaluate the potential impact of Texas emissions on areas that are
currently measuring clean data, but that may have issues maintaining
that air quality.
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\7\ 531 F.3d at 910-11 (holding that the EPA must give
``independent significance'' to each prong of CAA section
110(a)(2)(D)(i)(I)).
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Furthermore, in addition to being incomplete, the EPA has recently
shared new technical information with states to facilitate efforts to
address interstate transport requirements for the 2008 ozone NAAQS
which contradicts the conclusions of the Texas analysis. The EPA
developed this technical information following the same approach used
to evaluate interstate transport in CSAPR in order to support the
recently proposed Cross-State Air Pollution Rule Update for the 2008
Ozone NAAQS, 80 FR 75706 (December 3, 2015) (``CSAPR Update Rule''). In
CSAPR, we used detailed air quality analyses to determine whether an
eastern state's contribution to downwind air quality problems was at or
above specific thresholds. If a state's contribution did not exceed the
specified air quality screening threshold, the state was not considered
``linked'' to identified downwind nonattainment and maintenance
receptors and was therefore not considered to significantly contribute
to nonattainment or interfere with maintenance of the standard in those
downwind areas. If a state exceeded that threshold, the state's
emissions were further evaluated, taking into account both air quality
and cost considerations, to determine what, if any, emissions
reductions might be necessary. For the reasons stated below, we believe
it is appropriate to use the same approach we used in CSAPR to
establish an air quality screening threshold for the evaluation of
interstate transport requirements for the 2008 ozone standard.
In CSAPR, we proposed an air quality screening threshold of one
percent of the applicable NAAQS and requested comment on whether one
percent was appropriate. The EPA evaluated the comments received and
ultimately determined that one percent was an appropriately low
threshold because there were important, even if relatively small,
contributions to identified nonattainment and maintenance receptors
from multiple upwind states. In response to commenters who advocated a
higher or lower threshold than one percent, we compiled the
contribution modeling results for CSAPR to analyze the impact of
different possible thresholds for the eastern United States. The EPA's
analysis showed that the one percent threshold captures a high
percentage of the total pollution transport affecting downwind states,
while the use of higher thresholds would exclude increasingly larger
percentages of total transport. For example, at a five percent
threshold, the majority of interstate pollution transport affecting
downwind receptors would be excluded. In addition, the EPA determined
that it was important to use a relatively lower one percent threshold
because there are adverse health impacts associated with ambient ozone
even at low levels. The EPA also determined that a lower threshold such
as 0.5 percent would result in relatively modest increases in the
overall percentages of fine particulate matter and ozone pollution
transport captured relative to the amounts captured at the one-percent
level. The EPA determined that a ``0.5 percent threshold could lead to
emission reduction responsibilities in additional states that
individually have a very small impact on those receptors--an indicator
that emission controls in those states are likely to have a smaller air
quality impact at the downwind receptor. We are not convinced that
[[Page 21293]]
selecting a threshold below one percent is necessary or desirable.''
In the final CSAPR, we determined that one percent was a reasonable
choice considering the combined downwind impact of multiple upwind
states in the eastern United States, the health effects of low levels
of fine particulate matter and ozone pollution, and the EPA's previous
use of a one percent threshold in CAIR. The EPA used a single ``bright
line'' air quality threshold equal to one percent of the 1997 8-hour
ozone standard, or 0.08 ppm. The projected contribution from each state
was averaged over multiple days with projected high modeled ozone, and
then compared to the one percent threshold. We concluded that this
approach for setting and applying the air quality threshold for ozone
was appropriate because it provided a robust metric, was consistent
with the approach for fine particulate matter used in CSAPR, and
because it took into account, and would be applicable to, any future
ozone standards below 0.08 ppm. The EPA has subsequently proposed to
use the same threshold for purposes of evaluating interstate transport
with respect to the 2008 ozone standard in the CSAPR Update Rule.
In 2015 we (1) provided notice of data availability (NODA) for the
EPA's updated ozone transport modeling for the 2008 ozone NAAQS for
public review and comment (80 FR 46271, August 4, 2015), and (2)
proposed the CSAPR Update Rule to address interstate transport with
respect to the 2008 ozone NAAQS (80 FR 75706, December 3, 2015). The
CSAPR Update Rule would further restrict ozone season NOX
emissions from EGUs in 23 states, including Texas, beginning in the
2017 ozone season. Our proposal also addresses a 2015 D.C. Circuit
court decision that largely upheld CSAPR, but that, among other things,
remanded without vacatur the NOX ozone-season emission
budgets for EGUs in Texas and 10 other states that were established in
CSAPR to address the 1997 ozone NAAQS.\8\
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\8\ EME Homer City v. EPA, [795 F.3d 118 (D.C. Circuit 2015)]
(July 28, 2015).
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The modeling data released in this NODA was also used to support
the proposed CSAPR Update Rule. The moderate area attainment date for
the 2008 ozone standard is July 11, 2018. In order to demonstrate
attainment by this attainment deadline, states will use 2015 through
2017 ambient ozone data. Therefore, the EPA proposed that 2017 is an
appropriate future year to model for the purpose of examining
interstate transport for the 2008 ozone NAAQS. The EPA used
photochemical air quality modeling to project ozone concentrations at
air quality monitoring sites to 2017 and estimated state-by-state ozone
contributions to those 2017 concentrations. This modeling used the
Comprehensive Air Quality Model with Extensions (CAMx version 6.11) to
model the 2011 base year, and the 2017 future base case emissions
scenarios to identify projected nonattainment and maintenance sites
with respect to the 2008 ozone NAAQS in 2017. The EPA used nationwide
state-level ozone source apportionment modeling (CAMx Ozone Source
Apportionment Technology/Anthropogenic Precursor Culpability Analysis
technique) to quantify the contribution of 2017 base case
NOX and VOC emissions from all sources in each state to the
2017 projected receptors. The air quality model runs were performed for
a modeling domain that covers the 48 contiguous United States and
adjacent portions of Canada and Mexico. The NODA and the supporting
technical support documents have been included in the docket for this
SIP action.
The modeling data released in the NODA and the CSAPR Update Rule
are the most up-to-date information the EPA has developed to inform our
analysis of upwind state linkages to downwind air quality problems. As
discussed in the CSAPR Update Rule proposal, the air quality modeling
(1) identified locations in the U.S. where the EPA expects
nonattainment or maintenance problems in 2017 for the 2008 ozone NAAQS
(i.e., nonattainment or maintenance receptors), and (2) quantified the
projected contributions of emissions from upwind states to downwind
ozone concentrations at those receptors in 2017 (80 FR 75706, 75720-30,
December 3, 2015). Consistent with CSAPR, the EPA proposed to use a
threshold of 1 percent of the 2008 ozone NAAQS (0.75 parts per billion)
to identify linkages between upwind states and downwind nonattainment
or maintenance receptors. The EPA proposed that eastern states with
contributions to a specific receptor that meet or exceed this screening
threshold are considered ``linked'' to that receptor, and were analyzed
further to quantify available emissions reductions necessary to address
interstate transport to these receptors.
Table 1 is a summary of the air quality modeling results for Texas
from Table V.D-1 of the proposed CSAPR Update Rule.\9\ As the state's
downwind contribution to proposed nonattainment and maintenance
receptors exceeded the threshold, the analysis for the proposal
concluded that Texas emissions significantly contribute to
nonattainment and interfere with maintenance of the 2008 ozone NAAQS in
other states. Texas emissions were linked to eastern nonattainment
receptors in Sheboygan, Wisconsin, and to maintenance receptors in
Maryland, Michigan, New Jersey, New York, Ohio and Pennsylvania (Tables
V.D-2 and V.D-3, 80 FR 75706, 75728-30).\10\
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\9\ 80 FR 75706, 75727-28.
\10\ Tables V.D-2 and V.D-3, 80 FR 75706, 75728-30.
Table 1--Texas' Largest Contribution to Downwind Nonattainment and Maintenance Areas
[Proposed CSAPR update rule]
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Downwind Downwind
Largest Largest nonattainment maintenance
2008 Ozone NAAQS Air quality downwind downwind receptors receptors
threshold contribution to contribution to located in located in
nonattainment maintenance states states
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0.075 ppm (75 parts per 0.75 ppb.... 2.44 ppb........ 2.95 ppb........ Wisconsin...... Maryland,
billion or ppb). Michigan, New
Jersey, New
York, Ohio and
Pennsylvania.
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Additionally, Texas emissions were also linked to two projected
nonattainment receptors in the Denver, Colorado area, with Texas's
largest downwind contribution to those nonattainment receptors being
1.58 parts per billion (ppb).\11\ Texas has not provided a
demonstration that its SIP is adequate to address interstate transport
to the Denver, Colorado receptors. The EPA believes contribution from
an individual state equal to or above 1 percent of the NAAQS could be
considered significant where the
[[Page 21294]]
collective contribution of emissions from one or more upwind states is
responsible for a considerable portion of the downwind air quality
problem regardless of where the receptor is geographically located.\12\
In this case, Texas has more than a 2% contribution to receptors in
Denver, which we consider significant.
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\11\ See document EPA-HQ-OAR-2015-0500-0007 in http://www.regulations.gov.
\12\ 76 FR 48238 (Aug. 8, 2011); 80 FR 75714 (Dec. 3, 2015).
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As discussed previously, our modeling and analysis released in our
NODA and proposed CSAPR Update Rule is the most up-to-date information
for assessing interstate transport of air pollution for the 2008 ozone
NAAQS. Analysis of wind patterns, emissions data, and ambient
monitoring data as provided in the Texas SIP submittal does not
quantify the magnitude of impact from Texas emissions to downwind
states. For example, wind patterns can only give an indication of the
possibility of transport; emissions data and ambient monitoring data
can indicate the potential for air quality problems. The Texas analysis
only discusses general ozone season wind patterns as being from the
south to the east and the limited potential for transport to Memphis
and Baton Rouge. However, the general wind patterns are generally
consistent with transport to the impacted receptors in Wisconsin and
Colorado, and there are observed winds from the west and northwest that
could, on some days, transport pollutants towards other areas, such as
Baton Rouge. Downward trends in (1) emissions and (2) observed ozone
concentrations can indicate progress towards reducing impact, but do
not provide information on the magnitude of the remaining impact or the
potential benefit from additional emission reductions. Air quality
modeling, however, brings together emissions data, atmospheric
chemistry and meteorological information that simulate the transport
and fate of pollutants and estimate concentrations of pollutants
(including ozone) across the modeling domain. Air quality modeling can
also provide estimates of upwind impacts by estimating the contribution
of a state's emissions to downwind pollutant concentrations. Our
modeling and analysis provided the magnitude of impact and show that
Texas emissions significantly contribute to ozone concentrations in
areas of nonattainment and interfere with maintenance of the 2008 ozone
NAAQS in other states.
Texas provided a great deal of information documenting significant
emission reductions that have been made throughout the state and
particularly in the eastern half of the state between 1990 and 2010.
These include reductions from controls on EGUs in East Texas and
controls on a variety of NOX sources in the 1-hour ozone and
8-hour ozone nonattainment areas of Houston-Galveston-Brazoria,
Beaumont-Port Arthur and Dallas-Fort Worth. These controls have
resulted in significant reductions in ozone levels in Texas and
undoubtedly have reduced the amount of transported pollution to other
states. However, these reductions were largely put in place to address
the 1-hour ozone NAAQS, and as a result, their compliance dates, and
therefore the emission reductions achieved through these measures,
predate and were therefore accounted for in the EPA's modeling baseline
of 2011 for the 2008 ozone NAAQS. Accordingly, the most recent
technical analysis available to the EPA contradicts Texas's conclusion
that the state's SIP contains adequate provisions to address interstate
transport as to the 2008 ozone standard. Furthermore, Texas did not
demonstrate how these rules and data for a less stringent standard
provide sufficient controls on emissions to address interstate
transport for the 2008 ozone NAAQS. Despite the substantial reductions
in Texas, we have subsequently published information and proposed an
update to CSAPR that addresses the 2008 ozone NAAQS that includes
Texas's cited rules and demonstrates Texas still has an interstate
impact on other states.
Among the emissions reductions cited by Texas in its SIP, Texas
cites its participation in CAIR as a control measure that results in
control of NOX emissions within the state. Texas notes that
under CAIR, Texas EGUs were not included in the ozone season
NOX emissions trading program, but were subject to the
annual NOX emissions trading program. The CAIR ozone season
NOX emissions trading program was intended to address
interstate transport of air pollution for the 1997 ozone NAAQS. The
CAIR annual NOX emissions trading program, along with the
annual sulfur dioxide (SO2) trading program, was intended to
address interstate transport of air pollution for the 1997 fine
particulate matter (PM2.5) NAAQS.
Texas also noted that: (1) A 2008 court decision (the North
Carolina decision) directed the EPA replace CAIR, but kept it in place
temporarily; (2) the EPA replaced CAIR with CSAPR; (3) CSAPR included
Texas EGU budgets for ozone-season NOX emissions, annual
NOX emissions and annual SO2 NOX
emissions to address interstate transport of air pollution for the 1997
ozone NAAQS, the 1997 annual PM2.5 NAAQS and the 2006 24-
hour PM2.5 NAAQS; and (4) in August 2012, the U.S. Court of
Appeals for the District of Columbia Circuit (D.C. Circuit) issued a
decision vacating CSAPR and requiring continued implementation of CAIR
until the EPA develops a replacement. Therefore, Texas concluded that
CAIR remains a federally enforceable requirement.
Subsequent to Texas's submission of its SIP, On April 29, 2014, the
U.S. Supreme Court reversed that D.C. Circuit decision vacating CSAPR
and remanded the case to the D.C. Circuit for further proceedings. On
October 23, 2014, the D.C. Circuit granted our motion to lift the
judicial stay on CSAPR and delay compliance deadlines by three years.
Consistent with the Court's order we issued an interim final rule
amending CSAPR so that compliance could begin in an orderly manner on
January 1, 2015 (79 FR 71663, December 3, 2014), replacing CAIR. On
July 28, 2015, the D.C. Circuit issued its decision on the issues
raised on remand from the Supreme Court. The court denied all of
petitioners' facial challenges to CSAPR, but remanded several emissions
budgets to the EPA for reconsideration.\13\ A final rule making the
revised CSAPR implementation schedule permanent was issued on March 14,
2016.\14\
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\13\ As to Texas in particular, the court remanded without
vacatur the state's phase 2 SO2 annual emissions budget
and the phase 2 ozone-season NOX emissions budget for
reconsideration. The court concluded that these budgets resulted in
over-control of sources in Texas with respect to the air quality
concerns to which Texas was linked in our air quality modeling. As
stated above, our CSAPR update proposal for the 2008 ozone NAAQS
responds to the court remand of the NOX ozone-season
emission budgets for EGUs in Texas that were established for the
1997 ozone NAAQS.
\14\ 81 FR 13275 (March 14, 2016)
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Accordingly, CAIR implementation ended in 2014 and CSAPR
implementation began in 2015. States and the EPA are no longer
implementing the CAIR trading programs. Thus, it is no longer
appropriate for states to rely on CAIR to satisfy emission reduction
obligations. Moreover, as indicated above, Texas's SIP addresses
interstate transport obligations for a different and more stringent
standard (the 2008 ozone NAAQS) and it is not sufficient to merely cite
evidence of compliance with older programs such as CAIR or measures
implemented for prior ozone NAAQS as a means for satisfying
[[Page 21295]]
interstate transport obligations for the 2008 ozone NAAQS.
The EPA is proposing to disapprove the Texas SIP for CAA section
110(a)(2)(D)(i)(I) requirements. As explained above, the Texas analysis
does not adequately demonstrate that the SIP contains provisions
prohibiting emissions that will significantly contribute to
nonattainment or interfere with maintenance of the 2008 ozone NAAQS.
Moreover, the EPA's most recent modeling indicates that emissions from
Texas are projected to significantly contribute to downwind
nonattainment and maintenance receptors in other states.\15\
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\15\ Texas and others interested parties have provided comments
on both the NODA and proposed CSAPR Update Rule. See Docket No. EPA-
HQ-OAR-2015-0500 at http://www.regulations.gov. We will consider
these comments in final rulemaking to CSAPR Update Rule. Even absent
this data, Texas's SIP failed to adequately address the requirements
of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone
NAAQS.
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IV. Proposed Action
We propose to disapprove the portion of a December 13, 2012 Texas
SIP submittal pertaining to CAA section 110(a)(2)(D)(i)(I), the
interstate transport of air pollution which will significantly
contribute to nonattainment or interfere with maintenance of the 2008
ozone NAAQS in other states. The EPA requests comment on our evaluation
of Texas's interstate transport SIP.
Pursuant to CAA section 110(c)(1), disapproval will establish a 2-
year deadline for the EPA to promulgate a FIP for Texas to address the
requirements of CAA section 110(a)(2)(D)(i) with respect to the 2008
ozone NAAQS unless Texas submits and we approve a SIP that meets these
requirements. Disapproval does not start a mandatory sanctions clock
for Texas pursuant to CAA section 179 because this action does not
pertain to a part D plan for nonattainment areas required under CAA
section 110(a)(2)(I) or a SIP call pursuant to CAA section 110(k)(5).
V. 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 not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget for
review.
B. Paperwork Reduction Act (PRA)
This proposed action does not impose an information collection
burden under the PRA because it does not contain any information
collection activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action merely proposes to disapprove a SIP submission as not meeting
the CAA.
D. 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.
E. 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action does not apply on any Indian
reservation land, any other area where the EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction, or non-reservation areas of
Indian country. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only 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 merely proposes to disapprove a SIP
submission as not meeting the CAA.
H. 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.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. This action merely proposes to disapprove a
SIP submission as not meeting the CAA.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Nitrogen dioxide,
Volatile organic compounds.
Dated: April 4, 2016.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2016-08275 Filed 4-8-16; 8:45 am]
BILLING CODE 6560-50-P