[Federal Register Volume 76, Number 71 (Wednesday, April 13, 2011)]
[Proposed Rules]
[Pages 20602-20605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8995]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2011-0335; FRL-9294-4]
Approval and Promulgation of Implementation Plans; Texas;
Proposed Disapproval of Interstate Transport State Implementation Plan
Revision for the 2006 24-Hour PM2.5 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to our authority under the Clean Air Act (CAA or
Act), EPA is proposing to disapprove the portion of the Texas CAA
section 110(a)(2) ``Infrastructure'' State Implementation Plan (SIP)
submittal addressing significant contribution to nonattainment or
interference with maintenance in another state with respect to the 2006
24-hour fine particle (PM2.5) national ambient air quality
standards (NAAQS). On November 23, 2009, the State of Texas, through
the Texas Commission on Environmental Quality (TCEQ), submitted a SIP
to EPA intended to address the requirements of CAA section 110(a)(2)
for ``infrastructure.'' In this action, EPA is proposing to disapprove
the portion of the Texas' SIP revision submittal that intended to
address the section 110(a)(2)(D)(i)(I) requirements prohibiting a
state's emissions from significantly contributing to nonattainment or
interfering with maintenance of the NAAQS in any other state. The
rationale for the disapproval action of the SIP revision is described
in this proposal. This action is being taken under section 110 of the
CAA.
DATES: Comments must be received on or before May 13, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2011-0335, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
E-mail: Mr. Guy Donaldson at [email protected]. Please
also send a copy by e-mail to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not
on legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket No. EPA-R06-OAR-2011-
0335. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Planning
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a 15 cent per page
fee for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas.
The State submittal is also available for public inspection during
official business hours, by appointment, at the Texas Commission on
Environmental Quality, Office of Air Quality, 12124 Park 35 Circle,
Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Carl Young, Air Planning Section (6PD-
L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite
700, Dallas, Texas 75202-2733, telephone (214) 665-6645; fax number
(214) 665-7263; e-mail address [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This section provides
additional information by addressing the following questions:
I. What action is EPA proposing in today's notice?
II. What is the background for this proposed action?
III. What is EPA's evaluation of Texas' submittal?
IV. Statutory and Executive Order Reviews
[[Page 20603]]
I. What action is EPA proposing in today's notice?
We are proposing to disapprove a submission from the State of Texas
intended to demonstrate that Texas has adequately addressed the
elements of CAA section 110(a)(2)(D)(i)(I) that require the State's SIP
to contain adequate provisions to prohibit air pollutant emissions from
sources within a state from significantly contributing to nonattainment
in or interference with maintenance of the 2006 24-hour
PM2.5 NAAQS in any other state. We are proposing to
determine that the Texas submission does not contain adequate
provisions to prohibit air pollutant emissions from within the state
that significantly contribute to nonattainment in or interference with
maintenance of the 2006 24-hour PM2.5 NAAQS in other
downwind states. Any remaining elements of the submittal, including
language to address other CAA Section 110(a)(2) elements, are not
addressed in this action. EPA is proposing to disapprove only the
provisions which relate to the Section 110(a)(2)(D)(i)(I) demonstration
for the 2006 PM2.5 NAAQS. This action is being taken under
section 110 of the CAA.
II. What is the background for this proposed action?
On December 18, 2006, we revised the 24-hour average
PM2.5 primary and secondary NAAQS from 65 micrograms per
cubic meter ([mu]g/m\3\) to 35 [mu]g/m\3\. Section 110(a)(1) of the CAA
requires states to submit infrastructure SIPs to address a new or
revised NAAQS within 3 years after promulgation of such standards, or
within such shorter period as EPA may prescribe.\1\
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\1\ The rule for the revised PM2.5 NAAQS was signed
by the Administrator and publically disseminated on September 21,
2006. The rule was published in the Federal Register on October 17,
2006 and became effective December 18, 2006 (71 FR 61144). Because
EPA did not prescribe a shorter period for 110(a) SIP submittals,
these submittals for the 2006 24-hour NAAQS were due on September
21, 2009, three years from the September 21, 2006 signature date.
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Section 110(a)(2) lists the elements that such new infrastructure
SIPs must address, as applicable, including section 110(a)(2)(D)(i),
which pertains to interstate transport of certain emissions. On
September 25, 2009, we issued our ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS)''
(2009 Guidance). We developed the 2009 Guidance to make recommendations
to states for making submissions to meet the requirements of section
110, including 110(a)(2)(D)(i) for the revised 2006 24-hour
PM2.5 NAAQS.
As identified in the 2009 Guidance, the ``good neighbor''
provisions in section 110(a)(2)(D)(i) require each state to submit a
SIP that prohibits emissions that adversely affect another state in the
ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four
distinct requirements related to the impacts of interstate transport.
The SIP must prevent sources in the state from emitting pollutants in
amounts which will: (1) Contribute significantly to nonattainment of
the NAAQS in other states; (2) interfere with maintenance of the NAAQS
in other states; (3) interfere with provisions to prevent significant
deterioration of air quality in other states; or (4) interfere with
efforts to protect visibility in other states.
In the 2009 Guidance, we indicated that SIP submissions from States
pertaining to the ``significant contribution'' and ``interfere with
maintenance'' requirements of section 110(a)(2)(D)(i)(I) should contain
adequate provisions to prohibit air pollutant emissions from within the
state that contribute significantly to nonattainment or interfere with
maintenance of the NAAQS in any other state. We further indicated that
the state's submission should explain whether or not emissions from the
state have this impact and, if so, address the impact. We stated that
the state's conclusion should be supported by an adequate technical
analysis. We recommended the various types of information that could be
relevant to support the state SIP submission, such as information
concerning emissions in the state, meteorological conditions in the
state and the potentially impacted states, monitored ambient
concentrations in the state, and air quality modeling. Furthermore, we
indicated that states should address the ``interfere with maintenance''
requirement independently which requires an evaluation of impacts on
areas of other states that are meeting the 2006 24-hour
PM2.5 NAAQS, not merely areas designated nonattainment.
Lastly in the 2009 Guidance, we stated that states could not rely on
the Clean Air Interstate Rule (CAIR) to comply with CAA section
110(a)(2)(D)(i) requirements for the 2006 24-hour PM2.5
NAAQS because CAIR does not address this NAAQS.
We promulgated the CAIR on May 12, 2005, (see 70 FR 25162). CAIR
required states to reduce emissions of sulfur dioxide and nitrogen
oxides that significantly contribute to, and interfere with maintenance
of the 1997 NAAQS for PM2.5 and/or ozone in any downwind
state. CAIR was intended to provide states covered by the rule with a
mechanism to satisfy their CAA section 110(a)(2)(D)(i)(I) obligations
to address significant contribution to downwind nonattainment and
interference with maintenance in another state with respect to the 1997
8-hour ozone and PM2.5 NAAQS. Many states adopted the CAIR
provisions and submitted SIPs to us to demonstrate compliance with the
CAIR requirements in satisfaction of their 110(a)(2)(D)(i)(I)
obligations for those two pollutants.
We were sued by a number of parties on various aspects of CAIR, and
on July 11, 2008, the U.S. Court of Appeals for the District of
Columbia Circuit issued its decision to vacate and remand both CAIR and
the associated CAIR Federal Implementation Plans (FIP) in their
entirety. North Carolina v. EPA, 531 F.3d 836 (DC Cir. Jul. 11, 2008).
However, in response to our petition for rehearing, the Court issued an
order remanding CAIR to us without vacating either CAIR or the CAIR
FIPs. North Carolina v. EPA, 550 F.3d 1176 (DC Cir. Dec. 23, 2008). The
Court thereby left CAIR in place in order to ``temporarily preserve the
environmental values covered by CAIR'' until we replace it with a rule
consistent with the Court's opinion. Id. at 1178. The Court directed us
to ``remedy CAIR's flaws'' consistent with its July 11, 2008, opinion,
but declined to impose a schedule on us for completing that action. Id.
In order to address the judicial remand of CAIR, we have proposed a new
rule to address interstate transport pursuant to section
110(a)(2)(D)(i)(I), the ``Federal Implementation Plans to Reduce
Interstate Transport of Fine Particulate Matter and Ozone'' (Transport
Rule).\2\
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\2\ See ``Federal Implementation Plans to Reduce Interstate
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75
FR 45210 (August 2, 2010).
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III. What is EPA's evaluation of Texas' submittal?
On November 23, 2009, the State of Texas, through TCEQ, provided a
SIP revision to us intended to address the requirements of Section
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS as well
as other requirements of Section 110(a)(2). In this rulemaking, we are
addressing only the requirements of Section 110(a)(2) that pertain to
prohibiting sources in Texas from emitting pollutants that will
significantly contribute to nonattainment or interfere with maintenance
of the 2006 24-hour PM2.5 NAAQS in other states.
[[Page 20604]]
In its submission, Texas certified that the State is meeting its
Section 110(a)(2)(D)(i)(I) obligations by virtue of its CAIR SIP for
PM2.5. Texas specifically said that it submitted a SIP
revision to implement CAIR and is currently in the process of revising
the CAIR SIP and rule to account for federal rule revisions and state
legislative changes.\3\ Irrespective, CAIR was promulgated before the
24-hour PM2.5 NAAQS was revised in 2006, and as mentioned
above neither CAIR nor any of the State's revisions to its CAIR program
address interstate transport with respect to the 2006 PM2.5
NAAQS.\4\ Thus, reliance on CAIR and the State's CAIR SIP provisions
cannot be used to comply with Section 110(a)(2)(D)(i)(I) for the
respective 2006 PM2.5 NAAQS.
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\3\ On July 30, 2007, we approved as an abbreviated SIP revision
for the allowance allocation methodologies for Phase 1 of the CAIR
NOX annual trading program and the Compliance Supplement
Pool; see 72 FR 41453. The subsequent SIP revision was submitted to
EPA for review in March 4, 2010, and was submitted to address our
timing concerns with the Texas allowance allocation methodology for
Phase 2 of the CAIR NOX annual trading program. EPA has
not acted on this subsequent SIP revision submittal and is not
taking action on it at this time.
\4\ Further, as explained above and in the Transport Rule
proposal, the DC Circuit in North Carolina v. EPA found that EPA's
quantification of states' significant contribution and interference
with maintenance in CAIR was improper and remanded the rule to EPA.
CAIR remains in effect only temporarily.
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We also note that several states in their submission claim that
controls planned for or already installed on sources within the state
to meet the CAIR provisions satisfied the Section 110(a)(2)(D)(i)(I)
requirements for the 2006 24-hour PM2.5 NAAQS. However,
states will not be able to rely permanently upon the emissions
reductions predicted by CAIR, because CAIR was remanded to us and will
not remain in force permanently. Furthermore, we are in the process of
developing a new Transport Rule to address the concerns of the Court as
outlined in its decision remanding CAIR. For these reasons, we would
not be able to approve Texas' SIP submission pertaining to the
requirements under Section 110(a)(2)(D)(i)(I) because it relies on CAIR
for emission reduction measures.
Based upon our evaluation, we are proposing that this SIP revision
does not meet the requirements of Section 110(a)(2)(D)(i)(I) of the
CAA. Therefore, we are proposing to disapprove the portion of the Texas
Infrastructure SIP submission intended to demonstrate that its SIP
meets the Interstate Transport requirements of 110(a)(2)(D)(i)(I) of
the CAA for the 2006 PM2.5 NAAQS. The portion of the Texas
submission that addresses 110(a)(2)(D)(i)(I) is severable from the
remainder of the Texas submittal which addresses other elements of
110(a)(2), meaning our disapproval of this element does not impact the
other elements of the Texas submission which we will address in
separate Federal Register actions. Therefore, we are proposing to
disapprove only those provisions which relate to the 110(a)(2)(D)(i)(I)
demonstration and to take no action on the remainder of the elements
and their demonstrations at this time.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of a Part D Plan (42 U.S.C.A. Sec. Sec.
7501-7515) or is required in response to a finding of substantial
inadequacy as described in Sec. 7410(k)(5) (SIP call), starts a
sanctions clock. The provisions in the submittal we are proposing to
disapprove were not submitted to meet either of those requirements.
Therefore, if we take final action to disapprove this submittal, no
sanctions will be triggered. The full or partial disapproval of a
required State Implementation Plan revision triggers the requirement
under section 110(c) that EPA promulgate a FIP no later than 2 years
from the date of the disapproval unless the State corrects the
deficiency, and the Administrator approves the plan or plan revision
before the Administrator promulgates such FIP. In our Transport Rule
proposal we took comment on whether we should include Texas in a FIP
for PM2.5 (75 FR 45210, 45284). The finalized Transport Rule
may serve as the FIP that EPA intends to implement for the State.
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, EPA's role is to act on state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by State law.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is not a ``significant regulatory action''
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., because this proposed SIP disapproval under section 110
and subchapter I, part D of the Clean Air Act will not in-and-of itself
create any new information collection burdens but simply disapproves
certain State requirements for inclusion into the SIP. Burden is
defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 and subchapter I, part D of
the Clean Air Act will not in-and-of itself create any new requirements
but simply disapproves certain State requirements for inclusion into
the SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. The fact that
the Clean Air Act prescribes that various consequences (e.g., higher
offset requirements) may or will flow from this disapproval does not
mean that EPA either can or must conduct a regulatory flexibility
analysis for this action. Therefore, this action will not have a
significant economic impact on a substantial number of small entities.
[[Page 20605]]
We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector.'' EPA has determined that the proposed disapproval action does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This action proposes to
disapprove pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This proposed 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,
as specified in Executive Order 13132, because it merely disapproves
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, Executive
Order 13132 does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This proposed action does not have tribal implications, as
specified in Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP EPA is proposing to disapprove would not apply in
Indian country located in the state, and EPA notes that it will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
proposed action is not subject to Executive Order 13045 because it
because it is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997).This proposed SIP disapproval under section 110
and subchapter I, part D of the Clean Air Act will not in-and-of itself
create any new regulations but simply disapproves certain State
requirements for inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use
This proposed action is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
The EPA believes that this proposed action is not subject to
requirements of Section 12(d) of NTTAA because application of those
requirements would be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices, based on the criteria
of the Clean Air Act. Accordingly, this action merely proposes to
disapproves certain State requirements for inclusion into the SIP under
section 110 and subchapter I, part D of the Clean Air Act and will not
in-and-of itself create any new requirements. Accordingly, it 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.
K. Statutory Authority
The statutory authority for this action is provided by section 110
of the CAA, as amended (42 U.S.C. 7410).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter.
Dated: April 5, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011-8995 Filed 4-12-11; 8:45 am]
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