[Federal Register Volume 85, Number 154 (Monday, August 10, 2020)]
[Rules and Regulations]
[Pages 48111-48113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16672]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2020-0363; FRL-10012-84-Region 6]


Findings of Failure To Submit State Implementation Plans Required 
for Attainment of the 2010 1-Hour Primary Sulfur Dioxide (SO2) National 
Ambient Air Quality Standard (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to find that Texas has failed to submit State Implementation 
Plans (SIPs) to satisfy certain nonattainment area planning 
requirements of the Clean Air Act (CAA) for the 2010 1-hour primary 
Sulfur Dioxide (SO2) National Ambient Air Quality Standard 
(NAAQS). The purpose for the development and implementation of a 
nonattainment area SIP is to provide for attainment of the NAAQS as 
expeditiously as practicable following the designation of an area as 
nonattainment. This action establishes certain CAA deadlines for the 
EPA to impose sanctions if Texas does not submit a complete SIP for 
each nonattainment area addressing the outstanding requirements and for 
the EPA to promulgate a Federal Implementation Plan (FIP) to address 
any outstanding SIP requirements.

DATES: This action is effective on September 9, 2020.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
document should be addressed to Robert Imhoff, EPA Region 6, Air and 
Radiation Division, by telephone (214) 665-7262 or by email at 
Imhoff.Robert@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Notice and Comment Under the Administrative Procedure Act (APA)

    Section 553 of the APA, Title 5 United States Code (U.S.C.) Section 
553(b)(3)(B), provides that, when an agency for good cause finds that 
notice and public procedures are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. The EPA has determined 
that there is good cause for making this final agency action without 
prior proposal and opportunity for comment because no significant EPA 
judgment is involved in making findings of failure to submit SIPs, or 
elements of SIPs, required by the CAA, where states have made no 
submission to meet the requirement. Thus, notice and public procedures 
are unnecessary to take this action. The EPA finds that this 
constitutes good cause under 5 U.S.C. 553(b)(3)(B).

B. How can I get copies of this document and other related information?

    The EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2020-0363. Publicly available docket materials are 
available electronically through http://www.regulations.gov. Out of an 
abundance of caution for members of the public and our staff, the EPA 
Region 6 office will be closed to the public to reduce the risk of 
transmitting COVID-19. Please call or email the contact listed above if 
you need alternative access to material indexed but not provided in the 
docket.

C. How is the preamble organized?

Table of Contents

I. General Information
    A. Notice and Comment Under the Administrative Procedure Act 
(APA)
    B. How can I get copies of this document and other related 
information?
    C. How is the preamble organized?
II. Background
III. Consequences of Findings of Failure To Submit
IV. Findings of Failure To Submit for State That Failed to Make a 
Nonattainment Area SIP Submittal
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Executive 
Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act of 1995 (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority and Low Income Populations
    L. Congressional Review Act (CRA)
    M. Judicial Review

II. Background

    In June 2010, the EPA promulgated a new 1-hour primary 
SO2 NAAQS of 75 parts per billion (ppb), which is met when 
the 3-year average of the annual 99th percentile of daily maximum 1-
hour average concentrations does not exceed 75 ppb, as determined in 
accordance with Appendix T of Title 40 Code of Federal Regulations (40 
CFR) part 50. See 40 CFR 50.17(a)-(b). On June 30, 2016, the EPA signed 
the final action designating 61 areas as part of the second round of 
area designations for the 2010 SO2 NAAQS (published at 81 FR 
45039, July 12, 2016).\1\ On November 29, 2016, the EPA supplemented 
its Round 2 designations by signing a supplemental final action that 
included nonattainment designations for the 2010 1-hour primary 
SO2 NAAQS for portions of Rusk and Panola Counties, portions 
of Freestone and Anderson Counties, and a portion of Titus County 
(``Round 2 Supplement'') (81 FR 89870, December 13, 2016). These latter 
area designations had an effective date of January 12, 2017.
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    \1\ The EPA completed its first round of initial area 
designations for the 2010 1-hour primary SO2 NAAQS on 
August 5, 2013, with an effective date of October 4, 2013. Under a 
court order issued on March 2, 2015, the EPA is required to complete 
designations in three additional rounds of designations. The EPA 
must complete the final, Round 4 designations for the remaining 
undesignated areas of the country by no later than December 31, 
2020. The findings in this document apply only to those areas that 
were designated as part of Round 2 on December 13, 2016, and where, 
as of signature of this action, Texas failed to submit required 
complete plans.
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    Areas designated as nonattainment for the SO2 NAAQS are 
subject to the general nonattainment area planning requirements of CAA 
section 172 and to the SO2-specific planning requirements of 
subpart 5 of part D of Title I of the CAA (sections 191 and 192). All 
components of the SO2 part D nonattainment area SIP, 
including the emissions inventory, attainment demonstration, reasonably 
available control measures (RACM) including reasonably available 
control technology (RACT), enforceable emission limitations and control 
measures, reasonable further progress (RFP) plan, nonattainment new 
source review (NNSR), and contingency measures, are

[[Page 48112]]

due to the EPA within 18 months of the effective date of designation of 
an area under CAA section 191. Thus, the nonattainment area SIPs for 
the Texas areas designated effective January 12, 2017, were due on July 
13, 2018. These SIPs were required to demonstrate that their respective 
areas will attain the NAAQS as expeditiously as practicable, but no 
later than 5 years from the effective date of designation, or by 
January 12, 2022.

III. Consequences of Findings of Failure To Submit

    If the EPA finds that a state has failed to make the required SIP 
submittal or that a submitted SIP is incomplete, then CAA section 
179(a) establishes specific consequences, including the imposition of 
mandatory sanctions for the affected area, after a period of time, if 
within that period the state does not submit a complete SIP for the 
nonattainment area. Additionally, such a finding also triggers an 
obligation under CAA section 110(c) for the EPA to promulgate a FIP no 
later than 2 years after the finding of failure to submit if the 
affected state has not submitted, and EPA has not approved, the 
required SIP submittal.
    If the EPA has not affirmatively determined that a state has made 
the required complete SIP submittal for an area within 18 months of the 
effective date of this rulemaking, then, pursuant to CAA section 179(a) 
and (b) and 40 CFR 52.31, the offset sanction identified in CAA section 
179(b)(2) will apply in the affected nonattainment area. If the EPA has 
not affirmatively determined that the state has made a complete 
submission within 6 months after the offset sanction is imposed, then 
the highway funding sanction will apply in the affected nonattainment 
area, in accordance with CAA section 179(b)(1) and 40 CFR 52.31. The 
sanctions will not take effect if, within 18 months after the date of 
these findings, the EPA affirmatively determines that the affected 
state has made a complete SIP submittal addressing the deficiency for 
which the finding was made. Additionally, if the state makes the 
required SIP submittal and the EPA takes final action to approve the 
submittal within 2 years of the effective date of these findings, the 
EPA is not required to promulgate a FIP for the affected nonattainment 
area.

IV. Findings of Failure To Submit for State That Failed To Make a 
Nonattainment Area SIP Submittal

    As of the date of signature of this action, Texas failed to make 
complete SIP submittals required under part D of Title 1 of the CAA by 
July 13, 2018, for the three areas designated nonattainment effective 
January 12, 2017. The EPA is, therefore, issuing Texas a finding of 
failure to submit for the following three nonattainment areas: Portions 
of Anderson-Freestone Counties, Texas; portions of Rusk-Panola Counties 
Texas; and a portion of Titus County, Texas.

 Table 1--2010 1-Hour Primary SO2 NAAQS Nonattainment Areas Affected by
                   These Findings of Failure To Submit
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                 State                          Nonattainment area
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Texas..................................  Anderson-Freestone
                                          Counties(p),* Rusk-Panola
                                          Counties (p), and Titus County
                                          (p).
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* (p) indicates partial county.

V. Environmental Justice Considerations

    The EPA believes that the human health or environmental risks 
addressed by this action will not have disproportionately high or 
adverse human health or environmental effects on minority, low-income, 
or indigenous populations because it does not affect the level of 
protection provided to human health or the environment under the 
SO2 NAAQS. The purpose of this rule is to make a finding 
that Texas failed to submit the required SIPs to provide for timely 
attainment of the 1-hour primary SO2 NAAQS, which will 
result in certain CAA-required deadlines for actions to provide for 
such attainment. In finding that Texas failed to submit a complete SIP 
that satisfies the nonattainment area plan requirements under section 
172 and subpart 5 of part D of Title I of the CAA (sections 191 and 
192) for the 1-hour primary SO2 NAAQS, this action does not 
adversely affect the level of protection provided for human health or 
the environment. Rather, it is intended that the actions and deadlines 
resulting from this notice will in fact lead to greater protection for 
United States citizens, including minority, low-income, or indigenous 
populations, by ensuring that states meet their statutory obligation to 
develop and submit SIPs to ensure that areas make progress toward 
attaining the 1-hour primary SO2 NAAQS.

VI. Statutory and Executive Order Reviews

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

    This action is not a significant regulatory action and was, 
therefore, not submitted to the Office of Management and Budget (OMB) 
for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because it finds that Texas failed to meet the requirement in the CAA 
to submit SIPs under section 172 and subpart 5 of part D of Title I of 
the CAA (sections 191 and 192) for the SO2 NAAQS.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act. This final rule does not 
establish any new information collection requirement apart from what is 
already required by law. This rule relates to the requirement in the 
CAA for states to submit SIPs under section 172 and subpart 5 of part D 
of Title I of the CAA (sections 191 and 192) which address the 
statutory requirements that apply to areas designated as nonattainment 
for the SO2 NAAQS.

D. Regulatory Flexibility Act (RFA)

    I certify that this rule will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. The rule is 
a finding that Texas has not made the necessary SIP submission for 
certain nonattainment areas to meet the requirements of part D of title 
I of the CAA.

E. Unfunded Mandates Reform Act of 1995 (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.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on Texas, on the relationship between the 
national government and Texas, or on the distribution of power and

[[Page 48113]]

responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This rule finds that Texas has failed to 
complete the requirement in the CAA to submit SIPs under section 172 
and subpart 5 of part D of Title I of the CAA (sections 191 and 192) 
for the SO2 NAAQS. No tribe is subject to the requirement to 
submit an implementation plan under section 172 or under subpart 5 of 
part D of Title I of the CAA. Thus, Executive Order 13175 does not 
apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern 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 is a finding that Texas has failed to submit a complete SIP 
that satisfies the nonattainment area plan requirements under section 
172 and subpart 5 of part D of Title I of the CAA and does not directly 
or disproportionately affect children.

I. 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.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority 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. In finding that Texas has failed to submit a 
complete SIP that satisfies the nonattainment area planning 
requirements under section 172 and subpart 5 of part D of Title I of 
the CAA, this action does not adversely affect the level of protection 
provided to human health or the environment.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

M. Judicial Review

    This final action consists of a Finding of Failure to Submit 
certain required SIP provisions for the three identified areas in Texas 
designated nonattainment for the 2010 SO2 NAAQS. In 
accordance with the CAA Section 307(b)(1), petitions for judicial 
review of this action must be filed in the United States Court of 
Appeals for the 5th Circuit within 60 days from the date this final 
action is published in the Federal Register. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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 section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Approval and promulgation of implementation 
plans, Incorporation by reference, Intergovernmental relations, and 
Reporting and recordkeeping requirements.

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

    Dated: July 28, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020-16672 Filed 8-5-20; 4:15 pm]
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