[Federal Register Volume 86, Number 122 (Tuesday, June 29, 2021)]
[Proposed Rules]
[Pages 34187-34189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13696]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-HQ-OAR-2014-0464; FRL-10024-28-OAR]


Error Correction of the Area Designations for the 2010 1-Hour 
Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard 
(NAAQS) in Freestone and Anderson Counties, Rusk and Panola Counties, 
and Titus County in Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; withdrawal.

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SUMMARY: The Environmental Protection Agency (EPA) is withdrawing its 
August 22, 2019, proposed rule, which proposed both to determine that 
the EPA made an error in the area designations for the 2010 Sulfur 
Dioxide (SO2) Primary National Ambient Air Quality Standard 
(NAAQS) for portions of Freestone and Anderson Counties, Rusk and 
Panola Counties, and Titus County in Texas, and to correct the proposed 
error by modifying the designations of those areas to unclassifiable. 
The EPA is withdrawing the proposed rule because the EPA, informed in 
part by technical information received during the public comment period 
on the proposed rule that further supports the EPA's initial 
designations of these areas, no longer believes the bases identified in 
the proposed error correction support the proposed conclusion that an 
error correction is appropriate.

DATES: As of June 29, 2021, the proposed rule published at 84 FR 43757 
on August 22, 2019, is withdrawn.

FOR FURTHER INFORMATION CONTACT: Corey Mocka, U.S. Environmental 
Protection Agency, Office of Air Quality Planning and Standards, Air 
Quality Policy Division, 109 T.W. Alexander Drive, Mail Code C539-04, 
Research Triangle Park, NC 27711; phone number: (919) 541-5142; email 
address: mocka.corey@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 13, 2016, the EPA designated portions of Freestone and 
Anderson Counties, Rusk and Panola Counties, and Titus County in Texas 
as nonattainment for the 2010 1-hour primary SO2 NAAQS (81 
FR 89870, codified at 40 CFR 81.344) (``Round 2 Supplement''). On 
February 13, 2017, Vistra Energy, which owns SO2 emissions 
sources in each of the three areas, sent the EPA a petition for 
reconsideration, purportedly pursuant to Clean Air Act (CAA) section 
307(d)(7)(B) and the Administrative Procedure Act 5 U.S.C. 553(e), and 
for administrative stay of the EPA's nonattainment designations for 
portions of Freestone and Anderson Counties (``Big Brown Steam Electric 
Station area''), Rusk and Panola Counties (``Martin Lake Electrical 
Station area''), and Titus County (``Monticello Steam Electric Station 
area''). On March 15, 2017, the Texas Commission on Environmental 
Quality (TCEQ) also submitted a request for an administrative stay of 
the Round 2 Supplement final designations for these areas in Texas.\1\ 
On September 21, 2017, the EPA initially responded to Vistra Energy's 
February 2017 petition for reconsideration by indicating an intent to 
undertake an administrative action with notice and comment to revisit 
the nonattainment designations for the three areas, but explained that 
pending completion of such action, the nonattainment designations 
remained in effect.2 3
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    \1\ Additionally, TCEQ submitted a petition for reconsideration 
on December 11, 2017, and on December 19, 2017, Vistra Energy 
provided additional information regarding facility retirements and 
the deployment of additional SO2 monitors to support its 
February 2017 petition for reconsideration and administrative stay.
    \2\ https://www.epa.gov/sites/production/files/2018-09/documents/3143_signed_response.pdf.
    \3\ The EPA recently found that Texas has failed to submit State 
Implementation Plans to satisfy certain nonattainment planning 
requirements of the CAA for portions of Freestone and Anderson 
Counties, Rusk and Panola Counties, and Titus County. See 85 FR 
48111.
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    The EPA published a proposed rule in the Federal Register on August 
22, 2019, titled ``Error Correction of the Area Designations for the 
2010 1-Hour Sulfur Dioxide (SO2) Primary National Ambient 
Air Quality Standard (NAAQS) in Freestone and Anderson Counties, Rusk 
and Panola Counties, and Titus County in Texas'' (84 FR 43757) 
(``Proposed Error Correction''). Under the EPA's CAA authority at 
section 110(k)(6) to correct errors in acting on state implementation 
plans (SIPs) or in issuing designations, redesignations, 
classifications or reclassifications, the EPA proposed that in 
designating these areas as nonattainment under CAA sections 
107(d)(1)(A)(i), (d)(1)(B)(ii), and (d)(2)(A), it erred in not giving 
greater weight to Texas's preference to characterize air quality 
through monitoring, and to steps undertaken by Texas to begin 
monitoring in these three areas, when considering all available 
information; in relying on available air quality analyses in making the 
initial designations that the EPA recognized included certain 
limitations; or a combination of these two issues. Therefore, to 
correct these proposed errors, the EPA also proposed that the 
previously designated nonattainment areas in Freestone and Anderson 
Counties, Rusk and Panola Counties, and Titus County in Texas each be 
revised to reflect an unclassifiable designation under CAA section 
107(d)(1)(A)(iii). The EPA has not finalized the Proposed Error 
Correction and is not doing so in this action. Instead, the EPA is now 
withdrawing the Proposed Error Correction.\4\
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    \4\ Additionally, as detailed in a separate document published 
elsewhere in this issue of the Federal Register that has been signed 
concurrently along with this withdrawal notice, the EPA is also now 
denying the administrative petitions from Vistra Energy and TCEQ. 
See https://www.regulations.gov under Docket ID No. EPA-HQ-OAR-2014-
0464.
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II. Reasons for Withdrawing the Proposed Error Correction

A. Additional Air Quality Modeling

    In the Proposed Error Correction, the EPA proposed that it erred in 
relying on available air quality modeling submitted by Sierra Club in 
making the initial nonattainment designations for these three areas. 
The EPA explained in the proposed action that the modeling submitted by 
Sierra Club (``December 2015'' and ``March 2016'' modeling), which 
purported to show nonattainment, was developed in accordance with the 
general recommendations on modeling provided by the EPA but stated that 
the modeling contained ``key limitations and uncertainties.'' We made 
this statement in the Proposed Error Correction despite also 
acknowledging that we had explained in the record for the Round 2 
Supplement that individually these key limitations and uncertainties 
would not significantly change modeled results or, in many cases, could 
result in underestimation of SO2 concentrations. In the 
Proposed Error Correction, the EPA also stated that given the possible 
collective significance of these issues and, in the case of the areas 
around the Martin Lake and Monticello facilities, given that the 
maximum modeled concentrations are within about 10 percent of the 2010 
SO2 NAAQS, we were less confident in our prior statements 
that potential adjustments to the Sierra Club modeling would not result 
in modeled values near

[[Page 34188]]

or below the NAAQS.\5\ Additionally, the EPA stated in the Proposed 
Error Correction that while individually these deficiencies are not 
dispositive, collectively they are a sufficient basis for the EPA to 
propose that we erred in relying on the Sierra Club modeling in making 
the initial nonattainment designations for the three Texas areas.
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    \5\ As explained in the EPA's final designations Technical 
Support Document (TSD), the modeled 99th percentile daily maximum 1-
hour SO2 concentrations for the Martin Lake and 
Monticello facilities are 14 percent and 8 percent above the 2010 
SO2 NAAQS, respectively.
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    The EPA received several comments on the Proposed Error Correction. 
Sierra Club submitted a comment on the Proposed Error Correction that 
included updated modeling (``September 2019 modeling''). Sierra Club's 
updated September 2019 modeling addressed all aspects of the March 2016 
modeling that the EPA had identified in the Proposed Error Correction 
as a limitation or uncertainty. The September 2019 modeling purported 
to demonstrate that the Martin Lake Electrical Station area did not 
meet the 2010 SO2 NAAQS at the time of designation in the 
Round 2 Supplement (i.e., December 2016), and also currently does not 
meet the 2010 SO2 NAAQS based on more recent data. Sierra 
Club did not submit updated modeling for the Big Brown and Monticello 
areas as part of its September 2019 comment submission, but rather 
asserted that the EPA's previously identified limitations (individually 
or collectively) have no material effect on the model results for those 
areas in the same way as they demonstrated with the Martin Lake area's 
modeling.
    The EPA also notes, upon re-review of the Proposed Error Correction 
and Round 2 Supplement, that we did not acknowledge in the Proposed 
Error Correction that we actually considered the collective impact of 
all these same aspects of the modeling in the record for the Round 2 
Supplement (to the extent those aspects remained in the March 2016 
modeling relied on in the Round 2 Supplement).\6\ In the Proposed Error 
Correction, we also did not explain any change in our thinking from our 
assessment of the collective impact in the Round 2 Supplement's record.
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    \6\ See pages 27-29, 48-50, and 75-77 of the EPA's final 
designations TSD, available in the public docket and at https://www.epa.gov/sites/production/files/2016-11/documents/texas_4_deferred_luminant_tsd_final_docket.pdf.
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    As explained further in the technical support document for this 
withdrawal, the EPA has assessed Sierra Club's September 2019 modeling 
submitted during the Proposed Error Correction public comment 
period.\7\ This assessment supports the EPA's previous reliance on the 
March 2016 modeling as the basis for its final nonattainment 
designation for the Martin Lake area in the Round 2 Supplement. Based 
on consideration of that information submitted by commenters and on 
further consideration of the entirety of our record for the Round 2 
Supplement, the EPA now has concerns with the accuracy of the Proposed 
Error Correction's characterization of the March 2016 modeling and no 
longer believes that this proposed basis supports the proposed 
conclusion that an error correction is appropriate or that reliance on 
such information for the nonattainment designation was in error. The 
refined modeling submitted on the Proposed Error Correction 
demonstrates that the EPA's Round 2 Supplement assessment of the impact 
of further refining the March 2016 modeling was reasonable and correct, 
that such refinement would not alter the conclusion that the Martin 
Lake area was not attaining the NAAQS at the time of the Round 2 
Supplement. Overall, the EPA's assessment of the information and of our 
record for the Round 2 Supplement for all three areas is that 
refinement of the aspects of the modeling the EPA identified in the 
Proposed Error Correction would not alter the EPA's nonattainment 
designations for any of the three nonattainment area designations in 
the Round 2 Supplement, and that the submitted information further 
confirms our Round 2 Supplement analysis of then-available data.
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    \7\ See https://www.regulations.gov under Docket ID No. EPA-HQ-
OAR-2014-0464.
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B. Comments on Texas's Monitoring Preference

    In the Proposed Error Correction, the EPA also proposed that when 
we considered all available information at the time of designation, we 
erred in failing to give ``greater'' weight to the State of Texas' 
preference to use ambient air monitors to characterize SO2 
air quality in their state for purposes of the designation. We proposed 
this despite also acknowledging in the proposal that because these 
areas (around certain SO2 emissions sources) were subject to 
the Round 2 deadline of July 2, 2016, these areas were required to be 
designated at that time based on the EPA's assessment of available 
information even though the State of Texas stated a preference to later 
characterize the areas based on future monitoring data and its 
intention to install monitors for these areas.
    In addition to the modeling submitted during the public comment 
period for the Proposed Error Correction, the Sierra Club also 
commented that the EPA was required to designate the three areas in 
Texas by the court-ordered deadline based on the information available 
at that time (i.e., Sierra Club's December 2015 and March 2016 
modeling). Because monitoring information was not available in 2016 for 
the Martin Lake, Big Brown, or Monticello areas, the Sierra Club stated 
that monitoring data consequently could not inform the EPA's 
designations decisions. The Environmental Protection Network (EPN) 
submitted a similar comment claiming that the EPA did not have the 
discretion to delay designations for these three areas in Texas under 
the applicable court-ordered deadline and that the EPA was required to 
designate the areas based on the best available data at the time of the 
designations. Additionally, EPN asserted that Texas's preference for 
future air quality monitoring did not undermine the available modeling 
data demonstrating that the areas were violating the 2010 
SO2 NAAQS.
    In light of the comments submitted on the Proposed Error 
Correction, and the absence of a clearly identified error in the Round 
2 Supplement, the EPA no longer believes that this proposed basis 
supports the proposed conclusion that an error correction is 
appropriate and no longer believes that we failed to give the 
appropriate weight to the State's preference for future monitoring 
information when we considered all available information at the time of 
the Round 2 Supplement. For the reasons discussed below, the EPA has 
concerns with the prior proposed assertion that the EPA was in error 
for not giving greater weight to the state's preference for future 
monitoring information in the absence of any available monitoring data 
at that time, let alone over reliance on then-available air quality 
modeling to assess SO2 air quality. Given that the Proposed 
Error Correction's basis was predicated on the EPA relying on or 
weighing more heavily a preference for information that was not 
available at the time the EPA was required to finalize the Round 2 
Supplement, the EPA no longer believes such a basis provides 
substantial support for the argument that the Round 2 Supplement should 
be revised.
    CAA section 107(d) specifies that the EPA make designations based 
on the air quality at the time of final designations (i.e., determining 
at the time of signature whether the area meets the NAAQS) and consider 
all available information on air quality at that time. In other words, 
the

[[Page 34189]]

EPA does not interpret the statute as allowing the EPA to consider 
future air quality in the initial designations process, and the D.C. 
Circuit has upheld this interpretation as reasonable.\8\ The record for 
the Round 2 Supplement explains, and the EPA maintains, that both air 
quality modeling and ambient monitoring are appropriate tools for 
characterizing ambient air quality for purposes of informing decisions 
to implement the SO2 NAAQS, including designation 
determinations.\9\ The EPA's reliance on modeling to assess 
SO2 air quality, even in the face of conflicting monitoring, 
where appropriate, has been judicially affirmed. See, e.g., Montana 
Sulphur & Chemical Company v. EPA, 666 F.3d 1174, 1185 (9th Cir. 2012).
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    \8\ See Miss. Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 156 
(D.C. Cir. 2015); Catawba County v. EPA, 571 F.3d 20, 43-44 (D.C. 
Cir. 2009). The 2015 decision upheld the EPA's designations issued 
just days before new certified air quality data became available 
showing more areas violating the 2008 ozone NAAQS than the EPA 
designated as nonattainment. See also State of Texas v. EPA, 983 
F.3d 826, 837-838 (5th Cir. 2020) (holding that the EPA's 
nonattainment designation, which modified the state's 
recommendation, was not arbitrary and capricious because the county 
was not compliant with the ozone NAAQS when the EPA promulgated its 
designation and the CAA uses concrete terms such that a county 
either does or does not meet the NAAQS).
    \9\ Round 2 Supplement Reponses to Comments, Page 13. Available 
in the public docket and at https://www.epa.gov/sites/production/files/2016-11/documents/rtc_so2_comments_received_document_4_tx_sources_final_0.pdf.
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    In the Round 2 Supplement for these three areas, the EPA considered 
Texas's recommendations but appropriately modified the recommendations, 
per CAA section 107(d)(1)(B)(2), because they were not supported by 
currently available information. Specifically, the EPA's assessment of 
Sierra Club's modeling was that currently available information showed 
violations of the 2010 SO2 NAAQS. At the time of the EPA's 
final nonattainment designations for portions of Freestone and Anderson 
Counties, Rusk and Panola Counties, and Titus County, although Texas 
preferred that the EPA designate the areas based on proposed future 
monitoring data rather than on existing submitted modeling, there were 
no representative monitoring data \10\ or other reliable modeling 
demonstrations available to refute Sierra Club's information 
demonstrating violations of the 2010 SO2 NAAQS, as explained 
in the EPA's final designations TSD.\11\ The absence of available 
monitoring data at that time did not relieve the EPA of its obligation 
to issue designations for these areas by the court-ordered deadline. 
Furthermore, at the time of the final designations, the Agency did not 
have the discretion to await the results of 3 years of ambient air 
monitoring data (i.e., 2018-2020) from Texas's proposed (but not yet 
established) monitoring sites before taking final action due to the 
court's order to designate certain areas in Texas. There was, however, 
as explained previously and in the EPA's final designations TSD, valid 
modeling submitted by the Sierra Club based on the then-most recent 
actual emissions demonstrating that the areas were violating the 2010 
SO2 NAAQS. As explained earlier, the EPA no longer believes 
there were errors in our Round 2 Supplement's analysis that Sierra Club 
submitted valid, representative modeling (based on the then-most recent 
actual SO2 emissions) that demonstrated that the areas were 
violating the 2010 SO2 NAAQS, or that further refining the 
modeling would result in modeled values near or below the standard. 
Therefore, even though the EPA considered Texas's preference for 
monitoring, given that the statute requires that the EPA consider 
available information, Texas's preference for reliance on monitoring 
information when there were no such monitoring data available at the 
time of the EPA's final designations in December 2016 did not and could 
not rebut Sierra Club's modeling showing violations of the 2010 
SO2 NAAQS.\12\
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    \10\ As explained in the EPA's intended and final designations 
TSDs and the responses to comments document that accompanied the 
Round 2 Supplement, at the time of the EPA's final designations on 
December 13, 2016, there were no SO2 monitors sited in 
the areas of maximum concentration to properly characterize the air 
quality around the Martin Lake, Big Brown, or Monticello areas, nor 
were there SO2 monitors in the same counties as the 
facilities.
    \11\ The EPA received a comment from the Utility Air Regulatory 
Group on the Round 2 Supplement suggesting that the EPA wait for the 
future completion of three years of monitoring before designating 
certain Round 2 areas. In the Round 2 Supplement Responses to 
Comments (page 14), the EPA responded that the Agency does not have 
the discretion to await the results of future monitoring because of 
the court order to designate certain areas by the July 2, 2016, 
deadline.
    \12\ See State of Texas v. EPA, 983 F.3d 826, 836-838 (5th Cir. 
2020).
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III. Purpose of This Action

    In the 2019 Proposed Error Correction, the EPA proposed that our 
relying on the Sierra Club modeling along with our not giving greater 
weight to Texas' preference for monitoring, represented an insufficient 
basis for the EPA's initial nonattainment designations. For the reasons 
discussed previously, the EPA no longer believes it has a basis under 
these reasons individually or collectively to propose to or conclude 
that we made errors in our nonattainment designations of these areas, 
and, therefore, no longer believes that we have a basis to conclude 
that the EPA could not determine, based on available information at the 
time of issuing the designation, whether the three Texas areas that are 
the subject of this proposed action were meeting or not meeting the 
2010 SO2 NAAQS (i.e., the conclusion necessary to correct 
the designations to unclassifiable). Therefore, the EPA is withdrawing 
the Proposed Error Correction.

IV. Statutory and Executive Order Reviews

    This withdrawal of a proposed rule does not establish new 
regulatory requirements. Hence, the requirements of other regulatory 
statutes and Executive Orders that generally apply to rulemakings 
(e.g., the Regulatory Flexibility Act) do not apply to this action.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Sulfur dioxide.

Michael S. Regan,
Administrator.
[FR Doc. 2021-13696 Filed 6-28-21; 8:45 am]
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