[Federal Register Volume 83, Number 31 (Wednesday, February 14, 2018)]
[Proposed Rules]
[Pages 6493-6496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02894]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0716; FRL-9973-42--Region 6]


Approval and Promulgation of Implementation Plans; Texas; 
Interstate Transport Requirements for the 1997 and 2006 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or Act), the 
Environmental Protection Agency (EPA) is proposing to approve portions 
of three Texas State Implementation Plan (SIP) submittals pertaining to 
CAA requirements to prohibit emissions which will significantly 
contribute to nonattainment or interfere with maintenance of the 1997 
and 2006 fine particulate matter (PM2.5) National Ambient 
Air Quality Standards (NAAQS) in other states.

DATES: Written comments must be received on or before March 16, 2018.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0716, 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 the 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 wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

A. The PM2.5 NAAQS and Interstate Transport of Air Pollution

    Under section 109 of the CAA, we establish NAAQS to protect human 
health and public welfare. In 1997, we established a new annual NAAQS 
for PM2.5 of 15 micrograms per cubic meter ([mu]g/m\3\), and 
a new 24-hour NAAQS for PM2.5 of 65 [mu]g/m\3\ (62 FR 38652, 
July 18, 1997). In 2006, we revised the 24-hour PM2.5 NAAQS 
to 35 [mu]g/m\3\ (71 FR 61144, October 17, 2006).\1\ 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

[[Page 6494]]

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 1997 
and 2006 PM2.5 NAAQS. These sub-elements require that each 
SIP for a new or revised NAAQS 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.
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    \1\ In 2012, we revised the annual PM2.5 NAAQS to 12 
[mu]g/m\3\ (78 FR 3086, January 15, 2013). This proposal pertains to 
the 1997 and 2006 PM2.5 NAAQS only.
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    The EPA has addressed the interstate transport requirements of CAA 
section 110(a)(2)(D)(i)(I) with respect to PM2.5 in several 
past regulatory actions. Most recently, in 2011 we promulgated the 
Cross-State Air Pollution Rule (CSAPR) in order to address the 
obligations of states--and of the EPA when states have not met their 
obligations--under CAA section 110(a)(2)(D)(i)(I) to prohibit air 
pollution contributing significantly to nonattainment in, or 
interfering with maintenance by, any other state with regard to several 
NAAQS, including the 1997 annual and 2006 24-hour PM2.5 
NAAQS.\2\
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    \2\ Federal Implementation Plans; Interstate Transport of Fine 
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR 
48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and 
52.39 and 40 CFR part 97).
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    CSAPR replaced the Clean Air Interstate Rule (CAIR) which was 
promulgated in 2005 for the 1997 PM2.5 and 1997 ozone NAAQS 
(May 12, 2005, 70 FR 25172). 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. For more discussion on CSAPR and 
CAIR, please see EPA's August 8, 2011 CSAPR final rulemaking action (76 
FR 48208).
    To address Texas' transport obligation under CAA section 
110(a)(2)(D)(i)(I) with regard to the 1997 annual PM2.5 
NAAQS, CSAPR established Federal Implementation Plan (FIP) requirements 
for affected electric generating units (EGUs) in Texas, including 
emissions budgets that apply to the EGUs' collective annual emissions 
of sulfur dioxide (SO2) and nitrogen oxides 
(NOX).\3\ In July 2015, the D.C. Circuit issued a decision 
on a range of challenges to CSAPR in EME Homer City Generation, L.P. v. 
EPA (EME Homer City II) denying most claims but remanding several CSAPR 
emissions budgets to the EPA for reconsideration, including the Phase 2 
SO2 budget for Texas.\4\ To address the Phase 2 
SO2 budget remand we issued a final rule withdrawing the FIP 
provisions that required affected EGUs in Texas to participate in Phase 
2 of the CSAPR trading programs for annual emissions of SO2 
and NOX (82 FR 45481, September 29, 2017). In that final 
rule we also determined that emissions \5\ from sources in Texas will 
not contribute significantly to nonattainment in, or interfere with 
maintenance by, any other state with regard to the 1997 
PM2.5 NAAQS and that we therefore have no obligation to 
issue new FIP requirements for Texas sources to address transported 
PM2.5 pollution under CAA section 110(a)(2)(D)(i)(I) with 
regard to that NAAQS.
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    \3\ With regard to the 2006 24-hour PM2.5 NAAQS, we 
noted in the CSAPR final rule that (1) analysis shows that Texas 
would significantly contribute to nonattainment of the 24-hour 
PM2.5 NAAQS in another state, but we did not promulgate a 
CSAPR FIP for Texas EGUs with respect to that standard; and (2) the 
CSAPR FIP requirements for Texas with regard to the 1997 annual 
standard would address the emissions in Texas that significantly 
contribute to nonattainment and interfere with maintenance of the 
24-hour PM2.5 NAAQS in another state (76 FR at 48243, 
48214, August 8, 2011).
    \4\ EME Homer City Generation, L.P. v. EPA (EME Homer City II), 
795 F.3d 118, 138 (D.C. Cir. 2015). The court also remanded the 
Phase 2 SO2 budgets for three other states and the Phase 
2 ozone-season NOX budgets for eleven states, including 
Texas. Id.
    \5\ The term ``emissions'' refers to all anthropogenic emissions 
originating from the state, including EGU emissions.
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B. Texas SIP Submittals Pertaining to the PM2.5 NAAQS and 
Interstate Transport of Air Pollution

    Relevant to this proposed action, Texas made the following SIP 
submittals to address CAA requirements to prohibit emissions which will 
significantly contribute to nonattainment or interfere with maintenance 
of the 1997 and 2006 PM2.5 NAAQS in other states: (1) An 
April 4, 2008 submittal stating that the State had addressed any 
potential CAA section 110(a)(2) infrastructure issues associated with 
the 1997 PM2.5 NAAQS, including the four sub-elements for 
interstate transport (CAA section 110(a)(2)(D)(i)), (2) a separate but 
similar May 1, 2008 submittal which discussed how the four sub-elements 
of the good neighbor provision were addressed with respect to the 1997 
PM2.5 NAAQS, and (3) a November 23, 2009 submittal which 
addressed all the CAA section 110(a)(2) infrastructure elements, 
including the four sub-elements of the good neighbor provision, for the 
2006 PM2.5 NAAQS. The SIP submittals may be accessed through 
the www.regulations.gov website (Docket EPA-R06-OAR-2016-0716). In 
these SIP revisions, Texas relied on its participation in the CAIR 
program to conclude that the State had addressed its obligation to 
prohibit emissions which will significantly contribute to nonattainment 
or interfere with maintenance of the 1997 and 2006 PM2.5 
NAAQS in other states.
    For the reasons described below, this action proposes to approve 
the state's three SIP submittals with respect to the state's 
conclusions regarding the first two sub-elements of the good neighbor 
provisions at CAA section 110(a)(2)(D)(i)(I) for the 1997 and 2006 
PM2.5 NAAQS. In 2011, we originally proposed to disapprove 
the portion of the November 23, 2009 submittal that intended to 
demonstrate that the SIP met the requirements of CAA section 
110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS (71 FR 20602, 
April 13, 2011). However, in a separate Federal Register action 
published in conjunction with this current proposal we are withdrawing 
that original proposal and in this notice we now are proposing to 
approve the same portion of the submittal. See Docket No. EPA-R06-OAR-
2011-0335 in www.regulations.gov.

II. The EPA's Evaluation

    Each of the above-referenced Texas SIP submittals relied on the 
State's participation in the CAIR allowance trading programs to support 
a conclusion that the Texas SIP had adequate provisions to prohibit 
emissions which will significantly contribute to nonattainment or 
interfere with maintenance of the 1997 and 2006 PM2.5 NAAQS 
in any other state. While CAIR was still in place at the time the State 
submitted its SIPs, the CAIR rule had been remanded by the D.C. Circuit 
in 2008 based on the Court's conclusion that the rule was 
``fundamentally flawed'' and must be replaced ``from the ground up.'' 
North Carolina, 531 F.3d 929-30, modified, 550 F.3d 1176 (2008). 
Moreover, we began implementation of CSAPR in 2015, and therefore 
neither the states nor EPA are currently implementing the annual 
SO2 and NOX trading program promulgated in CAIR. 
Accordingly, we cannot approve the State's SIP submissions based on the 
implementation of CAIR that sought to address the provisions of the 
good neighbor provision for any NAAQS. However, more recent information 
discussed in detail below, provides support for our proposed approval 
of the conclusions in the SIP submittals that the State will not 
significantly

[[Page 6495]]

contribute to nonattainment or interfere with maintenance of these 
NAAQS in any other state.
    Air quality modeling conducted for the 2011 CSAPR rulemaking 
projected the effect of emissions on ambient air quality monitors 
(receptors). The modeling projected that a receptor located in Madison 
County, Illinois (monitor ID 171191007) would have difficulty attaining 
and maintaining both the 1997 and 2006 PM2.5 NAAQS in 2012 
(76 FR 48208, 48233 and 48235). The modeling also showed that Texas 
emissions were projected to contribute more than the threshold amount 
of PM2.5 pollution necessary in order to be considered 
``linked'' to the Madison County receptor for the 1997 and 2006 
PM2.5 NAAQS (76 FR 48208, 48239-43). This was the only 
PM2.5 receptor with projected air quality problems to which 
Texas was found to be linked.
    In CSAPR we used air quality projections for the year 2012, which 
was also the intended start year for implementation of the CSAPR Phase 
1 EGU emission budgets, to identify receptors projected to have air 
quality problems. The CSAPR final rule record also contained air 
quality projections for 2014, which was the intended start year for 
implementation of the CSAPR Phase 2 EGU emission budgets. The 2014 
modeling results projected that the Madison County receptor would have 
maximum ``design values'' of 15.02 [mu]g/m\3\ for annual 
PM2.5 of and 35.3 [mu]g/m\3\ for 24-hour PM2.5 
before considering the emissions reductions anticipated from 
implementation of CSAPR.\6\ These values are below the values of 15.05 
and 35.5 [mu]g/m\3\ that we used to determine whether a particular 
PM2.5 receptor should be identified as having air quality 
problems that may trigger transport obligations in upwind states with 
regard to the 1997 annual or 2006 24-hour PM2.5 NAAQS, 
respectively (82 FR 45481, 45485-86, September 29, 2017).
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    \6\ Design values are used to determine whether a NAAQS is being 
met. See projected 2014 base case maximum design values for Madison 
County, Illinois receptor 171191007 at pages B-41 and B-70 of the 
June 2011 Air Quality Modeling Final Rule Technical Support Document 
for CSAPR, Document ID No. EPA-HQ-OAR-2009-0491-4140, available in 
the docket for this proposed action.
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    As noted above, in our September 29, 2017 final rule addressing the 
remand for the annual SO2 and NOX emissions 
budgets we determined that emissions from Texas sources will not 
contribute significantly to nonattainment in, or interfere with 
maintenance by, any other state with regard to the 1997 
PM2.5 NAAQS (82 FR 45481, September 29, 2017). As explained 
in the separate September 29, 2017 action, our 2014 base case modeling 
in the CSAPR final rule also showed that (1) the Madison County 
receptor was projected to no longer have air quality problems 
sufficient to trigger transport obligations with regard to the 2006 24-
hour PM2.5 NAAQS and (2) no other 24-hour PM2.5 
receptors with projected air quality problems were linked to Texas. Due 
to those findings, we now propose to determine that emissions from 
Texas sources will not contribute significantly to nonattainment in, or 
interfere with maintenance by, any other state with regard to the 2006 
24-hour PM2.5 NAAQS. Given the determination for the 1997 
annual PM2.5 NAAQS made in the September 29, 2017 final rule 
and our proposed determination for the 2006 24 PM2.5 NAAQS, 
we are now proposing to approve the portions of three Texas SIP 
submittals to the extent they conclude that the state has addressed 
interstate transport of air pollution which will significantly 
contribute to nonattainment or interfere with maintenance of the 1997 
and 2006 PM2.5 NAAQS in other states.
    Based on our analysis of the modeling data from the 2011 CSAPR 
rulemaking provided above, we are proposing to approve the relevant 
portions of the Texas SIP submittals that Texas emissions will not 
significantly contribute to nonattainment or interfere with maintenance 
of the 1997 and 2006 PM2.5 NAAQS in other states. It should 
be noted, as discussed above, that we are not proposing to approve the 
State's analyses to the extent they rely on the State's prior 
participation in the CAIR allowance trading program, nor are we are 
proposing to approve any Texas SIP revisions that pertain to 
implementation of CAIR.

III. Proposed Action

    We are proposing to approve portions of three Texas SIP submittals 
pertaining to the CAA section 110(a)(2)(D)(i)(I) requirements based on 
our conclusion, which is consistent with the state's ultimate 
conclusion, that emissions from Texas will not significantly contribute 
to nonattainment or interfere with maintenance of the 1997 and 2006 
PM2.5 NAAQS in other states. Specifically, we propose to 
approve (1) the portions of the April 4, 2008 and May 1, 2008 SIP 
submittals for the 1997 PM2.5 NAAQS and (2) the portion of 
the November 23, 2009 submittal for the 2006 PM2.5 NAAQS, as 
they pertain to CAA section 110(a)(2)(D)(i)(I).

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a

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tribe has jurisdiction. In those areas of Indian country, the proposed 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter.

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

    Dated: February 7, 2018.
Anne Idsal,
Regional Administrator, Region 6.
[FR Doc. 2018-02894 Filed 2-13-18; 8:45 am]
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