[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
[email protected].
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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