[Federal Register Volume 86, Number 122 (Tuesday, June 29, 2021)]
[Rules and Regulations]
[Pages 34141-34142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13938]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-HQ-OAR-2014-0464; FRL-10024-27-OAR]


Air Quality Designations for the 2010 1-Hour SO2 NAAQS: Responses 
to Petitions for Reconsideration and Administrative Stay of the 
Designations for Portions of Freestone and Anderson Counties, Rusk and 
Panola Counties, and Titus County in Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of actions denying petitions for reconsideration 
and administrative stay.

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SUMMARY: The Environmental Protection Agency (EPA) is providing notice 
that it has responded to petitions for reconsideration and/or 
administrative stay of a final action under the Clean Air Act (CAA) 
published in the Federal Register on December 13, 2016, titled, ``Air 
Quality Designations for the 2010 Sulfur Dioxide (SO2) 
Primary National Ambient Air Quality Standard--Supplement to Round 2 
for Four Areas in Texas: Freestone and Anderson Counties, Milam County, 
Rusk and Panola Counties, and Titus County.'' The EPA has denied these 
petitions in letters to the petitioners for the reasons that the EPA 
explains in those documents.

DATES: The Administrator signed the associated notification letters on 
June 10, 2021.

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

    The EPA is providing notice that it has responded to petitions for 
reconsideration and/or administrative stay of a final action under the 
CAA published in the Federal Register on December 13, 2016, titled, 
``Air Quality Designations for the 2010 Sulfur Dioxide (SO2) 
Primary National Ambient Air Quality Standard--Supplement to Round 2 
for Four Areas in Texas: Freestone and Anderson Counties, Milam County, 
Rusk and Panola Counties, and Titus County'' (81 FR 89870). On February 
13, 2017, Vistra Energy submitted a petition requesting that the EPA 
reconsider and stay the effective date of the EPA's nonattainment 
designations for portions of Freestone and Anderson Counties, Rusk and 
Panola Counties, and Titus County. Vistra Energy later supplemented 
this petition on December 19, 2017. On March 15, 2017, the Texas 
Commission on Environmental Quality (TCEQ) submitted a request for 
administrative stay of the effective date for the EPA's final 
designations for these areas in Texas. The TCEQ also submitted a 
petition for reconsideration of the nonattainment designations on 
December 11, 2017. The EPA has denied these petitions in letters to the 
petitioners for the reasons that the EPA explains in those documents.

II. Where can I get copies of this document and other related 
information?

    This Federal Register document, the petitions for reconsideration 
and administrative stay, and the response letters to the petitioners 
are available in the docket that the EPA established for the 
rulemaking, under Docket ID NO. EPA-HQ-OAR-2014-0464.
    All documents in the docket are listed in the index at http://www.regulations.gov. Although listed in the index, some information may 
not be publicly available, i.e., 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 and will be publicly available only in hard copy form.
    Out of an abundance of caution for members of the public and our 
staff, the EPA is temporarily suspending the Docket Center and Reading 
Room for public visitors to reduce the risk of transmitting COVID-19. 
Our Docket Center staff will continue to provide remote customer 
service via email, phone, and webform. For further information and 
updates on EPA Docket Center services, please visit us online at 
https://www.epa.gov/dockets. The EPA continues to carefully and 
continuously monitor information from the Centers for Disease Control 
and Prevention, local area health departments, and our federal partners 
so we can respond rapidly as conditions change regarding COVID-19.
    In addition, the EPA has established a website for SO2 
designations rulemakings at: https://www.epa.gov/sulfur-dioxide-designations. This Federal Register notice, the petitions for 
reconsideration and administrative stay, and the response letters 
denying the petitions are also available on this website along with 
other information.

III. Judicial Review

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. This section provides, in part, that petitions for 
review must be filed in the Court of Appeals for the District of 
Columbia Circuit: (i) When the agency action consists of ``nationally 
applicable regulations promulgated, or final actions taken, by the 
Administrator,'' or (ii) when such action is locally or regionally 
applicable, if ``such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator finds 
and publishes that such action is based on such a determination.'' For 
locally or regionally applicable final actions, the CAA reserves to the 
EPA complete discretion whether to invoke the exception in (ii).

[[Page 34142]]

Judicial challenges to the EPA's denials of petitions for 
reconsideration of CAA actions belong in the same venue as any 
challenge to the action that such petitions request the agency to 
reconsider.\1\
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    \1\ Cf. Natural Res. Def. Council, Inc. v. Thomas, 838 F.2d 
1224, 1249 (D.C. Cir. 1988) (the clause in CAA section 307(b) 
governing ``nationally applicable regulations'' provides 
jurisdiction over both the direct challenge to the regulations and 
the petition for reconsideration).
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    The D.C. Circuit is the only appropriate venue for both challenges 
to the final action titled, ``Air Quality Designations for the 2010 
Sulfur Dioxide (SO2) Primary National Ambient Air Quality 
Standard--Supplement to Round 2 for Four Areas in Texas: Freestone and 
Anderson Counties, Milam County, Rusk and Panola Counties, and Titus 
County,'' 81 FR 89870 (December 13, 2016) (``Round 2 Supplement'') and 
challenges to these actions denying administrative petitions on the 
Round 2 Supplement. The EPA made a finding in the Round 2 Supplement, 
that the Round 2 Supplement is based on a determination of ``nationwide 
scope or effect'' within the meaning of CAA section 307(b)(1). See 81 
FR at 89874-75. That action is currently being challenged in the Court 
of Appeals for the Fifth Circuit; however, the EPA maintains that the 
proper venue for that action is the D.C. Circuit.\2\ Thus, judicial 
challenges to the actions noticed here, denying administrative 
petitions for reconsideration and/or stay of the Round 2 Supplement, 
also belong in the D.C. Circuit.
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    \2\ The EPA intends to maintain this position in merits briefing 
in the 5th Circuit, as the 5th Circuit's venue decision denied the 
EPA's motion to dismiss or transfer the case to the D.C. Circuit 
without prejudice to reconsideration of the issue by the merits 
panel. Texas v. EPA, 706 Fed. Appx. 159, 161, 165 (5th Cir. 2017) 
(``EPA's motion therefore is denied without prejudice to 
reconsideration by the merits panel . . . merits briefing will 
provide greater clarity on what determinations lie at the [Round 2] 
Supplement's core, by, for example, illuminating that the key 
determinations in the rule are determinations that specific 
methodologies are appropriate or preferable for assessing sulfur 
dioxide levels nationwide, as opposed to fact-specific assessments 
of sulfur dioxide levels in the four Texas regions. In that case, 
the merits panel should not be constrained from revisiting the 
issue.'').
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    To the extent a court finds these actions denying the 
administrative petitions on the Round 2 Supplement to be locally or 
regionally applicable, the Administrator is exercising the complete 
discretion afforded to him under the CAA to make and publish a finding 
that each of these actions are based on a determination of ``nationwide 
scope or effect'' within the meaning of CAA section 307(b)(1).\3\ Both 
the Round 2 Supplement and these final actions noticed here are 
finalized pursuant to a common, uniform nationwide analytical method 
and interpretation of CAA section 107(d). In denying the petitions for 
reconsideration and administrative stay of the Round 2 Supplement, 
these final actions apply the same common, uniform nationwide 
analytical method and interpretation of CAA section 107(d) that the EPA 
applied across the country in designations for the SO2 
Primary National Ambient Air Quality Standard (NAAQS), including the 
EPA's nationwide approach to and technical evaluation of air quality 
modeling and monitoring data within the EPA's interpretation of 
statutory terms under section 107(d)(1) of the CAA.\4\ These final 
actions are based on this same common core of determinations regarding 
the nationwide analytical method and interpretation of CAA section 
107(d), determinations that specific methodologies are appropriate or 
preferable for assessing sulfur dioxide levels nationwide.\5\ More 
specifically, these final actions are based on a determination by the 
EPA to evaluate areas nationwide using a common five-factor analysis in 
determining whether areas are in violation of or contributing to an 
area in violation of the 2010 SO2 NAAQS at the time of the 
designations final action. The actions denying the petitions for 
reconsideration explained, for example, that the EPA's designations and 
the denials for reconsideration are based on the EPA's determination to 
consider and assess the technical representativeness of all available 
information regarding then-current air quality at the time of 
designations (e.g., to consider third party modeling submitted to the 
EPA of the then-most recent years of air quality and then-currently 
available monitoring information, and not to consider projections or 
intended monitoring of future years' emissions, for SO2 
designations under the CAA). For these reasons, the Administrator is 
exercising the complete discretion afforded to him by the CAA and 
hereby finds that each of these final actions is based on a 
determination of nationwide scope or effect for purposes of CAA section 
307(b)(1) and is hereby publishing those findings in the Federal 
Register.
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    \3\ In deciding whether to invoke the exception by making and 
publishing a finding that this final action is based on a 
determination of nationwide scope or effect, the Administrator has 
also taken into account a number of policy considerations, including 
his judgment balancing the benefit of obtaining the D.C. Circuit's 
authoritative centralized review versus allowing development of the 
issue in other contexts and the best use of agency resources.
    \4\ In the report on the 1977 Amendments that revised section 
307(b)(1) of the CAA, Congress noted that the Administrator's 
determination that the ``nationwide scope or effect'' exception 
applies would be appropriate for any action that has a scope or 
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at 
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.
    \5\ See, supra, n.2.
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    Under CAA section 307(b), any petition for review of these actions 
denying the petitions for reconsideration and/or stay must be filed in 
the Court of Appeals for the District of Columbia Circuit within 60 
days from the date this notice is published in the Federal Register. 
Filing a petition for reconsideration by the Administrator of these 
final actions does not affect the finality of the actions for the 
purposes of judicial review, nor does it extend the time within which a 
petition for judicial review must be filed, and shall not postpone the 
effectiveness of such actions.

Michael S. Regan,
Administrator.
[FR Doc. 2021-13938 Filed 6-28-21; 8:45 am]
BILLING CODE 6560-50-P


