
[Federal Register Volume 81, Number 156 (Friday, August 12, 2016)]
[Rules and Regulations]
[Pages 53284-53290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19151]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2012-0985; FRL-9950-50-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is disapproving the 
portion of a Texas State 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 Standard (NAAQS) in other states. 
Disapproval establishes 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: This rule is effective on September 12, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2012-0985. All documents in the docket are 
listed on the http://www.regulations.gov Web site. 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 and will be publicly available 
only in hard copy. Publicly available docket materials are available 
either electronically through http://www.regulations.gov or in hard 
copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733.

FOR FURTHER INFORMATION CONTACT: Carl Young, 214-665-6645, 
young.carl@epa.gov.

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

I. Background

    This rulemaking addresses an infrastructure SIP submittal from the 
state of Texas addressing, among other things, the requirements of CAA 
section 110(a)(2)(D)(i)(I), also known as the good neighbor provision 
(or interstate transport prongs 1 and 2), with respect to the 2008 
ozone NAAQS. The background for this action is discussed in detail in 
our April 11, 2016 proposal (81 FR 21290). In that action we proposed 
to disapprove the portion of the December 13, 2012 Texas SIP submittal 
pertaining to CAA section 110(a)(2)(D)(i)(I) which requires that the 
State prohibit any emissions activity within the state from emitting 
air pollutants which will significantly contribute to nonattainment 
(prong 1) or interfere with maintenance (prong 2) of the 2008 ozone 
NAAQS in other states.\1\ In proposing to disapprove the SIP submittal 
as to prongs 1 and 2 of the good neighbor provision, we noted several 
deficiencies in Texas' submittal: (1) Texas limited 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); 
and (2) Texas did not give the ``interfere with maintenance'' clause of 
CAA 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.\2\ Finally, the EPA 
explained that Texas and other states could no longer rely on the 
implementation of the Clean Air Interstate Rule (CAIR) to satisfy 
emission reduction obligations with respect to the 2008 ozone NAAQS (81 
FR 21290, 21294-5). The EPA is finalizing its proposed disapproval in 
this action.
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    \1\ 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).
    \2\ In addition, the EPA cited at proposal certain technical 
information the agency had released in order to facilitate efforts 
to address interstate transport requirements for the 2008 ozone 
NAAQS, and that this information was used to support the proposed 
Cross-State Air Pollution Rule Update for the 2008 ozone NAAQS 
(CSAPR Update) (81 FR 21299, 21292). We noted that such information 
contradicts Texas' conclusions that its SIP contained adequate 
provisions to meet the CAA interstate transport requirements with 
respect to the 2008 ozone NAAQS. See Notice of Data Availability 
(NODA), 80 FR 46271, (August 4, 2015) and the proposed CSAPR Update, 
80 FR 75706 (December 3, 2015). We also noted at proposal that the 
EPA technical information in the NODA and the proposed CSAPR Update 
accounted for the emission reductions resulting from controls listed 
in the SIP, implemented within the state, and nonetheless showed 
that Texas will contribute to downwind air quality problems. The 
CSAPR Update, however, is outside the scope of this action, and is 
irrelevant to the question of whether the Texas SIP should be 
disapproved.
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    We received three comments during the comment period on our 
proposed SIP disapproval. The comments were submitted by the State of 
Texas (Texas Commission on Environmental Quality ``TCEQ''), Luminant (a 
Texas electricity producer) and a member of the public. A synopsis of 
the comments and our responses are provided below.

II. Response to Comments

    Comment: Comments were received from a member of the public that 
was supportive of the EPA's basis for its proposed action, but added 
that (1) the public can better understand how we are using the most 
current information if we clarify and explain how the projections and 
modeling discussed in the evaluation for our proposal are informed by 
recent ozone monitoring data, and (2) the commenter stated that the EPA 
took too long to propose action on the Texas SIP revision, noting that 
Texas would benefit from earlier review of its analysis by the EPA.
    Response: We agree with the commenter's conclusion that Texas's SIP 
submittal was inadequate to address the statutory interstate transport 
requirements with respect to the 2008 ozone NAAQS. With respect to the 
commenter's first concern, the projections and modeling released c in 
the August 4, 2015 NODA and the proposed CSAPR Update, which we also o 
recited in the EPA's proposed action on the Texas SIP submittal. In our 
CSAPR Update proposal, we explained how the CSAPR Update Rule proposed 
to use recent ozone monitoring data to inform our evaluation of 
interstate transport (80 FR 75706, 75724). We proposed to identify as 
nonattainment receptors those monitoring sites that (1) measured ozone 
concentrations that exceed the NAAQS based on monitoring data from 
years 2012-2014, and (2) are projected to exceed the NAAQS in 2017

[[Page 53285]]

based on an average design value.\3\ We proposed to identify 
maintenance receptors as those monitoring sites that have measured 
ozone concentrations that meet the NAAQS (clean data) based on 
monitoring data from years 2012-2014 and are projected to exceed the 
NAAQS in 2017 based on a maximum or average design value. We proposed 
this method of projecting from recent monitoring data to 2017 to 
identify maintenance receptors, since the monitoring sites of the 
proposed maintenance receptors currently meeting the NAAQS could be 
subject to conditions that may allow violations to reoccur and 
therefore may have future maintenance concerns. For more information 
about how the EPA identified 2017 nonattainment and maintenance 
receptors, please see pages 75723-75726 in the proposed CSAPR Update. 
(80 FR 75706). Today's rulemaking does not address which monitoring 
sites are identified as nonattainment and maintenance receptors with 
respect to interstate transport for the 2008 ozone NAAQS. Such 
determination, including more recent ozone monitoring data which will 
inform that analysis, will be addressed in the EPA's final CSAPR Update 
and are outside the scope of this final action. The EPA's disapproval 
is based on the inadequacies in the analysis provided in Texas's SIP 
submittal, as described in this document and in EPA's proposed action 
on that SIP.
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    \3\ The design value for the 2008 ozone NAAQS is the 3-year 
average of the annual 4th highest daily maximum 8-hour ozone 
concentration at a monitoring site.
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    With respect to the timeliness of the EPA's action on the Texas SIP 
submittal, CAA section 110(k)(2) requires the EPA to act on SIPs within 
one year after a submittal is determined to be complete. We determined 
that the Texas infrastructure SIP submittal, which includes transport, 
was complete on December 20, 2012. While the EPA generally agrees that 
prompt action on state SIP submittals can be beneficial to the states' 
planning efforts, in this case, the D.C. Circuit's decision in North 
Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008) provided the 
holding that states must give the ``interfere with maintenance'' clause 
of CAA section 110(a)(2)(D)(i)(I) independent significance, which Texas 
failed to do.
    Comment: The TCEQ stated that it does not support the EPA's 
proposed disapproval of the state's interstate transport portion of its 
SIP submittal because the TCEQ's interstate transport analysis 
adequately addresses the requirements of CAA section 
110(a)(2)(D)(i)(I). Specifically, TCEQ stated that the EPA failed to 
issue guidance in a timely manner for states to use in developing 
infrastructure and transport SIP revisions for the 2008 ozone NAAQS. 
TCEQ therefore contends that it is inappropriate for the EPA to 
conclude that the state's analysis of ozone contributions to other 
areas is incomplete when the EPA did not provide timely guidance 
stating what would constitute a complete analysis. TCEQ explained that 
its SIP revision was submitted on December 13, 2012 in order to meet 
the January 4, 2013 deadline by which the EPA was court-ordered to 
issue findings of failure to submit infrastructure SIPs for the 2008 
ozone NAAQS. TCEQ notes that the EPA did not issue infrastructure SIP 
guidance until September 13, 2013, eight months following the January 
2013 deadline, which did not contain any information on what would 
constitute an adequate interstate transport analysis. TCEQ further 
notes that the EPA did not provide information to states regarding 
interstate transport for the 2008 ozone NAAQS until 2015, through 
information provided in a January 22, 2015 memo, an August 4, 2015 
NODA, and the December 3, 2015 CSAPR Update proposal, which was well 
after the state's SIP submittal. Therefore, as a result of the EPA's 
lack of timely transport guidance for the 2008 ozone standard and 
subsequent NODA regarding 2017 nonattainment and maintenance receptor 
linkages and contributions, TCEQ contends that it was forced to expend 
effort and resources to develop its SIP revision without knowing how 
the EPA would evaluate Texas' interstate transport obligation. Further, 
the EPA has routinely failed to issue timely guidance for SIP revisions 
and to even meet statutory SIP review deadlines in the CAA. As a 
result, the EPA has disrupted the SIP development process nationwide, 
undermining the states' ability to submit sufficient SIP revisions.
    Response: We disagree that Texas' December 13, 2012 SIP submittal 
containing the state's transport analysis adequately addressed the 
requirements of CAA section 110(a)(2)(D)(i)(I). Rather, the state's 
analysis was deficient to address the statutory requirements, as 
detailed in the proposal and in more detail in this document. CAA 
section 110(a)(2)(D)(i)(I) requires that for a new or revised standard, 
each SIP must 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--here being the 2008 ozone standard. (81 FR 21290-1, April 11, 
2016). Texas submitted an analysis of monitoring data, wind patterns, 
emissions data and emissions controls and concluded that based on 
monitoring data, due to decreases in ozone design values and existing 
control measures, emissions from sources from within the state do not 
contribute significantly to nonattainment or interfere with maintenance 
of the 2008 ozone NAAQS in other states. We find that Texas' analysis 
was not adequate because Texas limited its discussion of data only to 
areas designated nonattainment in states that are geographically 
closest to the state and we find this approach incomplete, (as detailed 
in our proposal), since the state did not consider other areas that 
were not formally designated as nonattainment. (81 FR 21292). Moreover, 
the state did not give the ``interfere with maintenance'' clause of CAA 
section 110(a)(2)(D)(i)(I) independent significance, consistent with 
the D.C. Circuit's decision in North Carolina v. EPA, 531 F.3d 896, 
908-911 (D.C. Cir. 2008), 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. (81 FR 21292). As we noted at proposal the EPA's most 
recent technical information demonstrates that emissions from Texas do 
impact air quality in other states relative to the 2008 ozone NAAQS. 
(81 FR 21292-3). With regard to the timelines of EPA guidance, in EPA 
v. EME Homer City Generation, L.P., the Supreme Court clearly held that 
``nothing in the statute places the EPA under an obligation to provide 
specific metrics to States before they undertake to fulfill their good 
neighbor obligations.'' 134 S. Ct. 1584, 1601 (2014).\4\ While we have 
taken a different approach in some prior rulemakings by providing 
states with an opportunity to submit a SIP after we quantified the 
states' budgets (e.g., the

[[Page 53286]]

NOXSIP Call and CAIR \5\), the CAA does not require such an 
approach. Regarding the commenter's contention that the EPA's alleged 
inability to review SIP submittals within the CAA timelines undermines 
the ability of states to submit sufficient SIPs, the State's ability to 
submit a sufficient SIP that meets the applicable requirements is 
unrelated to the EPA's timeline for review.
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    \4\ ``Nothing in the Act differentiates the Good Neighbor 
Provision from the several other matters a State must address in its 
SIP. Rather, the statute speaks without reservation: Once a NAAQS 
has been issued, a State `shall' propose a SIP within three years, 
Sec.  7410(a)(1), and that SIP `shall' include, among other 
components, provisions adequate to satisfy the Good Neighbor 
Provision, Sec.  7410(a)(2).'' EPA v. EME Homer City Generation, 
L.P., 134 S. Ct. at 1600.
    \5\ For information on the NOX SIP call see 63 FR 
57356 (October 27, 1998). For information on CAIR (the Clean Air 
Interstate Rule) see 70 FR 25162 (May 12, 2005).
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    Comment: TCEQ and Luminant both state that the EPA's public notice 
on the proposed disapproval is not meaningful because they contend that 
the outcome was predetermined when the EPA proposed a FIP for Texas in 
the proposed CSAPR Update. They stated that at the time of the proposed 
FIP to update CSAPR, the EPA had taken no action on the previously 
submitted SIP submittal from Texas addressing interstate transport with 
respect to the 2008 ozone NAAQS. The commenters contend that the EPA 
should have evaluated the SIP submittal prior to proposing a CSAPR 
Update that included Texas. The commenters also stated that we had not 
satisfied the prerequisites of CAA section 110(c)(1) when we issued the 
proposed FIP for Texas in the proposed CSAPR Update. The commenters 
therefore contend that the proposed SIP disapproval is only a post hoc 
rationalization for the proposed CSAPR Update, and our approach is 
unlawful and impermissibly treads on cooperative federalism required 
under the CAA. Lastly, the commenters claim that had we reviewed the 
SIP revision before proposing the CSAPR Update for Texas, the state 
would have had the opportunity contemplated by the CAA to correct any 
problems with its SIP in a timely fashion and avoid the imposition of 
the FIP.
    Response: We disagree with the commenters that the proposed 
disapproval was predetermined when the EPA issued the proposed CSAPR 
Update that included a FIP for Texas. Our proposal to disapprove the 
Texas SIP provided proper notice and an opportunity for public comment, 
as legally required, and provided distinct bases for the proposed 
disapproval. Importantly, the proposed disapproval of the Texas SIP 
allowed an opportunity for submittal of any information that could have 
changed our proposed views concerning (1) the adequacy of the SIP 
submittal, and (2) the effect of Texas emissions on ozone levels in 
downwind states as demonstrated in the modeling and contribution 
information the EPA relied upon for its proposed disapproval. The EPA 
has not received any information demonstrating the identified 
inadequacies of the SIP submittal and the data showing the effect of 
Texas emissions in downwind states are inaccurate.
    Whether the EPA appropriately proposed the CSAPR Update is outside 
the scope of this action, and is irrelevant to the question of whether 
the Texas SIP should be disapproved. The bases for the disapproval are 
further explained in both the proposal and this final action, and do 
not rely upon the proposed CSAPR Update. As described in the proposal 
and earlier in this document, whether or not the EPA had proposed the 
CSAPR Update, Texas' SIP submittal failed to include an analysis that 
appropriately evaluated the impact of state emissions on areas in other 
states, regardless of current nonattainment designations and 
considering the ability of areas currently measuring clean data to 
maintain that standard. These deficiencies are completely independent 
of any analysis conducted to support the CSAPR Update proposal.
    Moreover, while the CSAPR Update proposal also relied upon the same 
modeling and contribution information to identify which states might be 
subject to a FIP in the final rulemaking, in the absence of an 
approvable SIP, the proposed disapproval of the Texas SIP did not rely 
upon the proposed findings in the CSAPR Update but rather cited, in 
addition to other deficiencies identified with the Texas SIP, technical 
data that was relevant to and informative for both proposals.
    Our actions are consistent with CAA section 110(c) prerequisites in 
promulgating a FIP. In our December 3, 2015 Federal Register notice, we 
proposed to include Texas in the CSAPR Update (80 FR 75706). In that 
proposal we recognized that we could not promulgate a FIP for any 
state, including Texas, in the final CSAPR Update unless we found that 
the state had failed to make an approvable SIP submittal (80 FR 75719-
20). A proposed rulemaking does not constitute a promulgation of a rule 
by the EPA, and therefore the proposed CSAPR Update does not constitute 
a ``predetermined outcome'' of EPA's review of Texas' SIP submittal, as 
the commenters describe, nor a promulgated FIP under CAA section 
110(c). Were the EPA to finalize an approval of Texas' SIP, the EPA 
would not finalize the proposed inclusion of Texas in any final CSAPR 
Update. However, for the reasons described earlier, the EPA is 
finalizing its disapproval of Texas' SIP. However, this final action 
does not promulgate a FIP nor make any final determination regarding 
whether and when the EPA will promulgate a FIP. The EPA will determine 
whether to issue a FIP in the context of the CSAPR Update in the 
rulemaking for that action, and thus any concerns regarding the EPA's 
authority to issue a FIP are appropriately raised only in the context 
of that rulemaking.
    Finally, the EPA disagrees with the commenters' claim that had we 
reviewed the SIP revision before proposing the CSAPR Update for Texas, 
the state would have had the opportunity contemplated by the CAA to 
correct any problems with its SIP in a timely fashion in order to avoid 
the imposition of the FIP. Contrary to commenters' assertions, CAA does 
not contemplate that a state have an opportunity to correct 
deficiencies with its SIP either before the EPA takes action to act on 
the SIP or before the EPA imposes a FIP after disapproval of a SIP. CAA 
section 110(c) provides that the EPA ``shall promulgate a [FIP] at any 
time within two years after'' the EPA either finds that a state has 
failed to make a required submittal or disapproves a SIP, in whole or 
in part. As the Supreme Court confirmed in EPA v. EME Homer City 
Generation. L.P., ``EPA is not obliged to wait two years or postpone 
its action even a single day: The Act empowers the Agency to promulgate 
a FIP `at any time' within the two-year limit.'' EPA v. EME Homer City 
Generation, L.P., 134 S. Ct. 1584, 1600-01 (2014). The EPA notes, 
however, that states have the ability at any time, including before or 
after the imposition of a FIP, to submit an approvable SIP, which 
corrects any deficiency.
    Comment: TCEQ commented that we inappropriately stated that it 
should have considered possible contributions to downwind areas that 
are not designated nonattainment but may nonetheless measure 
exceedances of the NAAQS. TCEQ further stated that we fail to mention 
how Texas might have accomplished this theoretical exercise 
particularly without EPA guidance on how to develop its transport SIP 
and considering the EPA relies on nationwide modeling to determine 
potential exceedances in areas that are attaining the NAAQS that is not 
made available to states prior to the statutory due dates for state 
transport SIPs. The TCEQ concedes that the EPA may now consider the 
CSAPR schema to be appropriate guidance for transport regulation, but 
contends that it is still not possible for states to effectively 
respond with timely transport SIPs. The commenter again notes that the 
EPA did

[[Page 53287]]

not explain what type of transport analysis would be considered 
satisfactory when the EPA issued SIP guidance in 2013.
    Response: Regardless of an air quality designation, any area may 
violate the NAAQS if upwind emissions affecting air quality are not 
adequately controlled. The EPA has routinely interpreted the obligation 
to prohibit emissions that ``significantly contribute to 
nonattainment'' of the NAAQS in downwind states to be independent of 
formal designations because exceedances can happen in any area.\6\ 
Nothing in the CAA limits States' obligations under the good neighbor 
provision to downwind areas that have been formally designated 
nonattainment. To the contrary, CAA section 110(a)(2)(D)(i)(I) requires 
States to prohibit emissions that ``will contribute significantly to 
nonattainment in . . . any other State.'' (emphasis added). The future 
tense demonstrates that Congress intended this requirement to be 
forward-looking and apply to areas that will be in nonattainment 
regardless of formal designation. An area with air quality that is 
projected to exceed the NAAQS would be in nonattainment, and thus not 
meeting public health-based standards, regardless of whether it has 
been formally designated as a nonattainment area. An upwind state 
cannot be relieved of its obligation to address interstate transport of 
air pollution merely because of a lack of formal designation. Thus, 
Texas should have considered possible contributions to downwind areas 
that are not designated nonattainment but may nonetheless measure 
exceedances of the NAAQS in considering whether Texas emissions 
significantly contribute to nonattainment in another state.
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    \6\ See, e.g., Clean Air Interstate Rule, 70 FR 25162, 25265 
(May 12, 2005) (``As to impacts, CAA section 110(a)(2)(D) refers 
only to prevention of `nonattainment' in other States, not to 
prevention of nonattainment in designated nonattainment areas or any 
similar formulation requiring that designations for downwind 
nonattainment areas must first have occurred.''); Cross-State Air 
Pollution Rule, 76 FR 48208, 48211 (Aug. 8, 2011) (evaluating 
nonattainment and maintenance concerns based on modeled 
projections); Brief for Respondents U.S. Environmental Protection 
Agency at 23-24, EME Homer City Generation, L.P. v. EPA, Case No. 
11-1302 (D.C. Cir. Jan. 16, 2015), ECF No. 1532516 (defending the 
EPA's identification of air quality problems in CSAPR independent of 
area designations). Cf. Final Response to Petition from New Jersey 
Regarding SO2 Emissions From the Portland Generating 
Station, 76 FR 69052 (Nov. 7, 2011) (finding facility in violation 
of the prohibitions of CAA section 110(a)(2)(D)(i)(I) with respect 
to the 2010 SO2 NAAQS prior to issuance of designations 
for that standard).
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    With respect to the ``interfere with maintenance'' requirement, the 
court in North Carolina v. EPA, (531 F.3d 896, D.C. Cir. 2008), was 
specifically concerned with areas not designated nonattainment when it 
rejected the view that ``a state can never `interfere with maintenance' 
unless the EPA determines that at one point it `contribute[d] 
significantly to nonattainment.' '' 531 F.3d at 910. The court pointed 
out that areas barely attaining the standard due in part to emissions 
from upwind sources would have ``no recourse'' pursuant to such an 
interpretation. Id. Accordingly, and as described in the proposal, the 
court explained that the regulatory authority must give ``independent 
significance'' to the maintenance prong of CAA section 
110(a)(2)(D)(i)(I) by separately identifying such downwind areas for 
purposes of defining states' obligations pursuant to the good neighbor 
provision. Thus, Texas should have considered the potential impact of 
its emissions on areas that are currently measuring clean data, but may 
have issues maintaining that air quality.
    Although the TCEQ questions how it could have completed such an 
analysis without explicit guidance from the EPA and before the EPA had 
conducted air quality modeling evaluating downwind air quality and 
contributions, as explained earlier, states bear the primary 
responsibility for demonstrating that their plans contain adequate 
provisions to address the statutory interstate transport provisions and 
the EPA is not required to issue guidance. In separate interstate 
transport actions, the EPA has reviewed and finalized action on 
interstate transport SIPs in states where air quality modeling was not 
available or where the total weight of evidence for finalizing action 
on the state's SIP was not solely based on air quality modeling, 
according to these standards.\7\ As evidenced by these actions, 
consideration of monitoring data is one valid way to evaluate potential 
interstate transport impacts, but it does not absolve a state from 
evaluating its downwind impact regardless of formal area designations 
and considering the requirements of both prongs of the good neighbor 
provision. As we noted above and as found by the Supreme Court in EME 
Homer City Generation, L.P., the lack of guidance does not relieve 
either the states of the obligation to submit SIPs that address CAA 
section 110(a)(2)(D)(i)(I) nor the EPA of the obligation to review such 
SIPs consistent with the statutory requirements of the good neighbor 
provision. For the 2015 ozone NAAQS, we plan to provide information 
pertaining to interstate transport of air pollution later this year.\8\ 
Interstate transport SIPs for the 2015 ozone NAAQS are due October 26, 
2018. We plan to continue our ongoing dialogue with states to assist in 
developing an appropriate transport SIP.
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    \7\ See, e.g., Air Quality State Implementation Plans; Approvals 
and Promulgations: Utah; Interstate Transport of Pollution for the 
2006 PM2.5 NAAQS May 20, 2013 (78 FR 29314); Final Rule, 
78 FR 48615 (August 9, 2013); Approval and Promulgation of 
Implementation Plans; State of California; Interstate Transport of 
Pollution; Significant Contribution to Nonattainment and 
Interference With Maintenance Requirements, Proposed Rule, 76 FR 
146516, 14616-14626 (March 17, 2011); Final Rule, 76 FR 34872 (June 
15, 2011); Approval and Promulgation of State Implementation Plans; 
State of Colorado; Interstate Transport of Pollution for the 2006 
24-Hour PM2.5 NAAQS, Proposed Rule, 80 FR 27121, 27124-
27125 (May 12, 2015); Final Rule, 80 FR 47862 (August 10, 2015).
    \8\ See pages 6-7 of the attachment to the October 1, 2015 EPA 
memorandum ``Implementing the 2015 Ozone National Ambient Air 
Quality Standards'' from Janet McCabe, Acting Assistant 
Administrator, Office of Air and Radiation to Regional 
Administrators, Regions 1-10, https://www.epa.gov/sites/production/files/2015-10/documents/implementation_memo.pdf.
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    Comment: TCEQ and Luminant both state that in our CSAPR Update 
proposal the EPA did not give independent effect to both the 
``contribute significantly to nonattainment'' and the ``interfere with 
maintenance'' requirements as nonattainment and maintenance receptors 
are treated exactly the same way as far as linkages to states are 
defined and emission budgets are set. Luminant also claims that the EPA 
would be in violation of the Supreme Court in EME Homer City 
Generation, L.P. if we impose the same ``cost-effective controls'' to 
address both interference with maintenance and significant contribution 
to nonattainment.
    Further, the comments state that because some states are linked to 
receptors in marginal nonattainment areas, the EPA is requiring 
emissions reductions from upwind states, including Texas, to assist 
states that do not have make emission reductions or institute control 
strategies of their own. Further, the comments claim that we have 
failed to identify any balance between local controls in areas with 
potential maintenance problems and reductions that it is requiring of 
states upwind that it models as contributing at least 1% of the 
relevant NAAQS to these areas with modeled, not monitored, issues.
    The commenters also disagree with the EPA's finding that the Texas 
SIP submittal did not give independent significance to the CAA 
``interfere with

[[Page 53288]]

maintenance'' requirement and contend that we have misconstrued that 
requirement by stating that TCEQ did not evaluate areas currently 
measuring clean data. Luminant contends that Texas' SIP does give 
independent significance to the ``interfere with maintenance'' clause. 
TCEQ claims that the EPA has not promulgated a rule that identifies a 
required or recommended methodology for the EPA or states to give 
independent consideration to possible contributions that may interfere 
with maintenance in downwind areas, and contend that it is arbitrary 
and capricious for the EPA to propose disapproval for failure to meet a 
standard or requirement that did not exist at the time the statutory 
obligation matured.
    Response: As described in the proposal, the EPA proposed 
disapproval in part because the Texas SIP submittal did not address the 
potential impact of Texas emissions on maintenance areas. Reiterating 
our position explained in the proposal, the D.C. Circuit in North 
Carolina explained that the regulatory authority must give 
``independent significance'' to the maintenance prong of CAA section 
110(a)(2)(D)(i)(I) 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. North Carolina 
v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008). While one commenter 
contends that Texas evaluated the interference with maintenance prong 
and concluded monitoring data do not suggest that emissions from Texas 
contribute significantly to nonattainment or interfere with maintenance 
of the 2008 ozone NAAQS for areas in any other state, nothing in Texas' 
SIP submittal indicates that it performed any analysis to support its 
conclusion as the State limited its discussion of data only to certain 
areas designated nonattainment and did not consider whether those or 
any other areas might have trouble maintaining the standard even if 
they measured clean data. Thus, contrary to the commenter's assertion, 
Texas did not give independent meaning to the interference with 
maintenance prong by evaluating the impact of upwind state emissions on 
downwind areas that, while currently in attainment, are at risk of 
future nonattainment, as required by the statute and as clarified by 
the D.C. Circuit in North Carolina.
    The EPA disagrees with the commenter's assertion that this standard 
or requirement did not exist at the time the statutory obligation to 
submit a transport SIP matured. At the time Texas was obligated to 
submit a SIP addressing interstate transport requirements for the 2008 
ozone NAAQS, CAA section 110(a)(2)(D)(i)(I) clearly required states to 
submit a plan containing adequate provisions prohibiting any source or 
other type of emissions activity within the state from emitting any air 
pollutant in amounts which will interfere with maintenance by any other 
state with respect to a particular NAAQS. This requirement has not 
changed since Texas' obligation to submit a transport SIP matured, and 
contrary to commenter's assertion, the EPA is not obligated to identify 
a required or recommended methodology for giving independent 
consideration to possible contributions that may interfere with 
maintenance in downwind areas prior to proposing action on a SIP 
addressing such statutory requirement. Nonetheless, the State's SIP 
made no attempt to evaluate the maintenance prong with respect to the 
2008 ozone NAAQS aside from its conclusory assertion that the 
requirements were satisfied.
    To the extent the commenter has raised concerns with respect to the 
EPA's interpretation and application of the CAA, including the 
``interfere with maintenance'' clause, in the context of the CSAPR 
Update rulemaking, such comments are appropriately raised and addressed 
in that rulemaking. The EPA is not finalizing in this rule any 
determinations regarding the identification of specific downwind 
maintenance receptors, the magnitude of Texas' contribution to those 
receptors, and the quantity of any emission reductions that might be 
necessary. Such determinations will be made in the context of the CSAPR 
Update rulemaking. To the extent that Luminant refers to the EPA's 
approach as not compliant with the Supreme Court's EME Homer City 
Generation, L.P. decision, this comment relates to the CSPAR Update 
rulemaking and not our action today. Thus, it is outside the scope of 
this action and would be more appropriately addressed in that separate 
rulemaking.
    Comment: TCEQ claims that the EPA has not demonstrated that a 
contribution by upwind states of 1% of the NAAQS will interfere with 
maintenance in identified maintenance areas. Further the TCEQ contends 
that the EPA has not demonstrated that a 1% of the NAAQS contribution 
to modeled emissions in maintenance areas is appropriate for linking an 
upwind state to a maintenance monitor. Further, they contend that EPA 
has not demonstrated that the amount of reductions necessary to cure a 
contribution to nonattainment is also appropriate to ensure that an 
upwind state is not interfering with maintenance. Lastly, TCEQ states 
that the 1% contribution threshold is arbitrary.
    Response: The EPA explained in the CSPAR Update proposal its 
reasoning for why we believe it appropriate to use the same approach 
used in CSAPR to establish a 1% air screening threshold for the 
evaluation of interstate transport requirements for the 2008 ozone 
NAAQS, including the interference with maintenance requirement. 81 FR 
21292-94. The commenter does not explain its allegations that the 1% 
threshold is arbitrary nor does the commenter explain how the EPA has 
not demonstrated this threshold is appropriate to show interference by 
upwind states with maintenance in identified maintenance areas.
    Nonetheless, while the EPA cited the modeling conducted for the 
CSAPR Update as showing Texas may significantly contribute to 
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in 
downwind states, we did not propose to make a specific finding of 
contribution or to quantify any specific emissions reduction 
obligation. We did not rely upon a 1% contribution threshold for this 
action. Rather, the evaluation of whether emissions from Texas 
significantly contribute to nonattainment or interfere with maintenance 
of the 2008 ozone NAAQS downwind, relying upon the use of a 1% 
contribution threshold, and if so what reductions are necessary to 
address that contribution, is being conducted in the context of the 
CSAPR Update rulemaking. Accordingly, this comment relates to the CSPAR 
Update rulemaking and not our action today. Thus, it is outside the 
scope of this action and would be more appropriately addressed in that 
separate rulemaking. The EPA will consider timely-submitted comments 
regarding the EPA's air quality modeling and various associated legal 
and policy decisions in finalizing that rulemaking.
    Comment: TCEQ stated that it supports the use of ambient air 
quality monitoring data as the only valid basis for making 
nonattainment designations and identifying nonattainment and 
maintenance receptors and that it does not support the use of modeling 
as the basis for designations or identifying either nonattainment or 
maintenance receptors for transport. TCEQ contends that using modeling 
for these actions could result in major capital expenditures for 
industry to fix something that may not be a real problem, and claims 
that to base these actions on modeling is inconsistent with

[[Page 53289]]

historical and present EPA policies. TCEQ also notes that the EPA does 
not redesignate an area to attainment when an area models attainment as 
part of an attainment demonstration, but rather uses monitoring data to 
verify attainment before redesignation.
    Response: While the EPA does rely on ambient air quality monitoring 
data to make decisions on ozone nonattainment designations and 
redesignations, the EPA has routinely based its determination of 
receptors for purposes of evaluating interstate ozone transport on air 
quality modeling projections.\9\ This is because, regardless of 
designation, any area may violate the NAAQS if upwind emissions 
affecting air quality are not adequately controlled, and areas 
currently measuring clean data may still violate the NAAQS if 
conditions change such that attainment with the NAAQS can no longer be 
maintained. Thus, the means by which the EPA makes decisions with 
respect to area designations is not relevant to our identification of 
receptors that should be evaluated for interstate transport of air 
pollution. In North Carolina v. EPA, the D.C. Circuit concluded that 
the EPA's reliance on future projections to identify such receptors was 
a reasonable application of the statute. North Carolina, 531 F.3d at 
914. Nonetheless, while the EPA has relied upon modeling to identify 
downwind air quality problems, the EPA has also stated that states may 
consider other types of data when evaluating interstate transport in 
developing their SIPs. See Memorandum from William T. Harnett to 
Regional Air Division Directors, Regions I-X, ``Guidance on SIP 
Elements Required Under [CAA] Sections 110(a)(1) and (2) for the 2006 
24-Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS)'', September 25, 2009.\10\ Indeed, as described 
earlier, the EPA has regularly evaluated interstate transport SIPs in 
western states, where modeling has not typically been available, 
considering monitored data in a manner that is consistent with the 
standards described in this document.
---------------------------------------------------------------------------

    \9\ See CSAPR (76 FR 48208, August 8, 2011), CAIR (70 FR 25162, 
May 12, 2005) and the NOX SIP call (63 FR 57356, October 
27, 1998).
    \10\ https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20090925_harnett_section_110(a)_sip_2006_24-hr_pm2.5_naaqs.pdf.
---------------------------------------------------------------------------

    Comment: TCEQ stated that we failed to give comments on the 
adequacy of the State's interstate transport analysis during the State 
public comment period and that the lack of comments led the State to 
believe that the submitted analysis was adequate to show how Texas 
contributes to other states' ozone concentrations.
    Response: The EPA's authority and obligation under the Act is to 
review a SIP submittal and determine whether it meets the applicable 
requirements of the Act and regulations, regardless of whether we 
commented on a State's proposed SIP during its State rulemaking 
process. There is no requirement in the Act that the EPA must review, 
evaluate, and comment on a State's proposed SIP revision during the 
state rulemaking process, and no reasonable or legal basis for states 
to assume that the EPA's choosing to not provide comment on their 
analysis during the state public comment period constitutes the 
Agency's endorsement of such analysis.
    Comment: Luminant stated that the EPA needs to revise the CSAPR 
ozone season NOX budgets in accordance with the D.C. 
Circuit's remand in EME Homer City Generation, L.P. before the EPA can 
evaluate Texas' SIP submittal. See EME Homer City Generation, L.P. v 
EPA, 795 F.3d 118 (D.C. Cir. 2015). Luminant stated that, by failing to 
issue new budgets for the 1997 ozone NAAQS, we are in violation of the 
D.C. Circuit's specific remand instructions. The commenter contends 
that the EPA cannot rationally evaluate Texas' SIP submittal until we 
comply with the court's remand. The commenter specifically contends 
that the EPA must replace the CSAPR budgets with lawful budgets that do 
not require more control than necessary to comply with the 1997 ozone 
NAAQS, and that otherwise, the EPA has no basis to disapprove the Texas 
SIP submittal. By failing to establish lawful budgets, the commenter 
claims that the EPA does not have the information necessary to evaluate 
additional reductions associated with Texas' plan to comply with the 
2008 ozone NAAQS.
    Response: The EPA has an independent statutory obligation to 
evaluate Texas' SIP submittal addressing the good neighbor provision 
with respect to the 2008 ozone NAAQS. The fact that the EPA has not yet 
completed its response to the D.C. Circuit's remand to address 
interstate transport with respect to the 1997 ozone NAAQS does not 
preclude either the state from addressing its own statutory obligation 
with respect to the 2008 ozone NAAQS pursuant to CAA section 
110(a)(2)(D)(i)(I) or the EPA from fulfilling its statutory obligation 
to review the SIP submittal pursuant to CAA section 110(k). As noted 
earlier, the EPA has identified several deficiencies with the 
interstate transport analysis in the Texas SIP submittal that are 
unrelated to the CSAPR rulemakings either with respect to the 1997 or 
2008 ozone standards.
    The EPA has proposed its intended response to address the D.C. 
Circuit's remand of the CSAPR ozone season NOX budgets in 
the context of the CSAPR Update, which is expected to be finalized 
later this year. The commenter does not explain how the EPA's 
finalization of this action with respect to the 1997 ozone standard 
would aid in the state's evaluation of transport with respect to the 
2008 ozone standard. Nonetheless, should the commenter have any 
concerns about the EPA's approach to addressing the court's remand, the 
appropriate venue for the EPA's evaluation of those concerns is in the 
context of the CSAPR Update rulemaking. Any concerns are outside the 
scope of this rulemaking.
    Comment: Luminant stated that we must reopen the comment period for 
the CSAPR Update rulemaking. Luminant contends that comments previously 
submitted on the CSAPR Update proposal have limited utility because the 
EPA's rationale for disapproving Texas' SIP submittal was not known at 
the time those comments were submitted for that proposal.
    Response: As noted earlier, the EPA has identified several 
deficiencies with the interstate transport analysis in the Texas SIP 
submittal that are unrelated to the CSAPR Update rulemaking. Moreover, 
any request to reopen the public comment period on the CSAPR Update is 
not appropriately raised in this rulemaking.

III. Final Action

    For the reasons described in the proposal and in this final action, 
the EPA is disapproving a portion of the December 13, 2012 SIP 
submittal from Texas seeking to address the required infrastructure 
element under CAA section 110(a)(2)(D)(i)(I) with respect to the 
State's significant contribution to nonattainment or interference with 
maintenance of the 2008 ozone NAAQS in other states, known as prongs 1 
and 2 of the good neighbor provision.
    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). We 
expect to take final action on the other portions of the Texas 
infrastructure SIP at a later date.

[[Page 53290]]

    Pursuant to CAA section 110(c)(1), this disapproval establishes 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).

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This final 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 final 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 disapproves a SIP submittal as not meeting certain CAA 
requirements.

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 disapproves a SIP submittal as 
not meeting certain CAA requirements.

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 disapproves a SIP 
submittal as not meeting certain CAA requirements.
    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. The EPA will submit a report containing this action and 
other 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 11, 2016. 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 CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone.

    Dated: August 1, 2016.
Ron Curry,
Regional Administrator, Region 6.

    40 CFR part 52 is amended 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 52.2275 is amended by adding paragraph (l) to read as 
follows:


Sec.  52.2275  Control strategy and regulations: Ozone.

* * * * *
    (l) The portion of the SIP submitted on December 13, 2012 
addressing Clean Air Act section 110(a)(2)(D)(i)(I) for the 2008 ozone 
NAAQS is disapproved.

[FR Doc. 2016-19151 Filed 8-11-16; 8:45 am]
 BILLING CODE 6560-50-P


