Proposed Rule2021-13696
Error Correction of the Area Designations for the 2010 1-Hour Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard (NAAQS) in Freestone and Anderson Counties, Rusk and Panola Counties, and Titus County in Texas
Primary source
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Published
June 29, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is withdrawing its August 22, 2019, proposed rule, which proposed both to determine that the EPA made an error in the area designations for the 2010 Sulfur Dioxide (SO<INF>2</INF>) Primary National Ambient Air Quality Standard (NAAQS) for portions of Freestone and Anderson Counties, Rusk and Panola Counties, and Titus County in Texas, and to correct the proposed error by modifying the designations of those areas to unclassifiable. The EPA is withdrawing the proposed rule because the EPA, informed in part by technical information received during the public comment period on the proposed rule that further supports the EPA's initial designations of these areas, no longer believes the bases identified in the proposed error correction support the proposed conclusion that an error correction is appropriate.
Full Text
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<title>Federal Register, Volume 86 Issue 122 (Tuesday, June 29, 2021)</title>
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[Federal Register Volume 86, Number 122 (Tuesday, June 29, 2021)]
[Proposed Rules]
[Pages 34187-34189]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-13696]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-HQ-OAR-2014-0464; FRL-10024-28-OAR]
Error Correction of the Area Designations for the 2010 1-Hour
Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard
(NAAQS) in Freestone and Anderson Counties, Rusk and Panola Counties,
and Titus County in Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; withdrawal.
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SUMMARY: The Environmental Protection Agency (EPA) is withdrawing its
August 22, 2019, proposed rule, which proposed both to determine that
the EPA made an error in the area designations for the 2010 Sulfur
Dioxide (SO<INF>2</INF>) Primary National Ambient Air Quality Standard
(NAAQS) for portions of Freestone and Anderson Counties, Rusk and
Panola Counties, and Titus County in Texas, and to correct the proposed
error by modifying the designations of those areas to unclassifiable.
The EPA is withdrawing the proposed rule because the EPA, informed in
part by technical information received during the public comment period
on the proposed rule that further supports the EPA's initial
designations of these areas, no longer believes the bases identified in
the proposed error correction support the proposed conclusion that an
error correction is appropriate.
DATES: As of June 29, 2021, the proposed rule published at 84 FR 43757
on August 22, 2019, is withdrawn.
FOR FURTHER INFORMATION CONTACT: Corey Mocka, U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards, Air
Quality Policy Division, 109 T.W. Alexander Drive, Mail Code C539-04,
Research Triangle Park, NC 27711; phone number: (919) 541-5142; email
address: <a href="/cdn-cgi/l/email-protection#670a08040c0649040815021e2702170649000811"><span class="__cf_email__" data-cfemail="1c71737f777d327f736e79655c796c7d327b736a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On December 13, 2016, the EPA designated portions of Freestone and
Anderson Counties, Rusk and Panola Counties, and Titus County in Texas
as nonattainment for the 2010 1-hour primary SO<INF>2</INF> NAAQS (81
FR 89870, codified at 40 CFR 81.344) (``Round 2 Supplement''). On
February 13, 2017, Vistra Energy, which owns SO<INF>2</INF> emissions
sources in each of the three areas, sent the EPA a petition for
reconsideration, purportedly pursuant to Clean Air Act (CAA) section
307(d)(7)(B) and the Administrative Procedure Act 5 U.S.C. 553(e), and
for administrative stay of the EPA's nonattainment designations for
portions of Freestone and Anderson Counties (``Big Brown Steam Electric
Station area''), Rusk and Panola Counties (``Martin Lake Electrical
Station area''), and Titus County (``Monticello Steam Electric Station
area''). On March 15, 2017, the Texas Commission on Environmental
Quality (TCEQ) also submitted a request for an administrative stay of
the Round 2 Supplement final designations for these areas in Texas.\1\
On September 21, 2017, the EPA initially responded to Vistra Energy's
February 2017 petition for reconsideration by indicating an intent to
undertake an administrative action with notice and comment to revisit
the nonattainment designations for the three areas, but explained that
pending completion of such action, the nonattainment designations
remained in effect.<SUP>2 3</SUP>
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\1\ Additionally, TCEQ submitted a petition for reconsideration
on December 11, 2017, and on December 19, 2017, Vistra Energy
provided additional information regarding facility retirements and
the deployment of additional SO<INF>2</INF> monitors to support its
February 2017 petition for reconsideration and administrative stay.
\2\ <a href="https://www.epa.gov/sites/production/files/2018-09/documents/3143_signed_response.pdf">https://www.epa.gov/sites/production/files/2018-09/documents/3143_signed_response.pdf</a>.
\3\ The EPA recently found that Texas has failed to submit State
Implementation Plans to satisfy certain nonattainment planning
requirements of the CAA for portions of Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County. See 85 FR
48111.
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The EPA published a proposed rule in the Federal Register on August
22, 2019, titled ``Error Correction of the Area Designations for the
2010 1-Hour Sulfur Dioxide (SO<INF>2</INF>) Primary National Ambient
Air Quality Standard (NAAQS) in Freestone and Anderson Counties, Rusk
and Panola Counties, and Titus County in Texas'' (84 FR 43757)
(``Proposed Error Correction''). Under the EPA's CAA authority at
section 110(k)(6) to correct errors in acting on state implementation
plans (SIPs) or in issuing designations, redesignations,
classifications or reclassifications, the EPA proposed that in
designating these areas as nonattainment under CAA sections
107(d)(1)(A)(i), (d)(1)(B)(ii), and (d)(2)(A), it erred in not giving
greater weight to Texas's preference to characterize air quality
through monitoring, and to steps undertaken by Texas to begin
monitoring in these three areas, when considering all available
information; in relying on available air quality analyses in making the
initial designations that the EPA recognized included certain
limitations; or a combination of these two issues. Therefore, to
correct these proposed errors, the EPA also proposed that the
previously designated nonattainment areas in Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County in Texas each be
revised to reflect an unclassifiable designation under CAA section
107(d)(1)(A)(iii). The EPA has not finalized the Proposed Error
Correction and is not doing so in this action. Instead, the EPA is now
withdrawing the Proposed Error Correction.\4\
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\4\ Additionally, as detailed in a separate document published
elsewhere in this issue of the Federal Register that has been signed
concurrently along with this withdrawal notice, the EPA is also now
denying the administrative petitions from Vistra Energy and TCEQ.
See <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket ID No. EPA-HQ-OAR-2014-
0464.
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II. Reasons for Withdrawing the Proposed Error Correction
A. Additional Air Quality Modeling
In the Proposed Error Correction, the EPA proposed that it erred in
relying on available air quality modeling submitted by Sierra Club in
making the initial nonattainment designations for these three areas.
The EPA explained in the proposed action that the modeling submitted by
Sierra Club (``December 2015'' and ``March 2016'' modeling), which
purported to show nonattainment, was developed in accordance with the
general recommendations on modeling provided by the EPA but stated that
the modeling contained ``key limitations and uncertainties.'' We made
this statement in the Proposed Error Correction despite also
acknowledging that we had explained in the record for the Round 2
Supplement that individually these key limitations and uncertainties
would not significantly change modeled results or, in many cases, could
result in underestimation of SO<INF>2</INF> concentrations. In the
Proposed Error Correction, the EPA also stated that given the possible
collective significance of these issues and, in the case of the areas
around the Martin Lake and Monticello facilities, given that the
maximum modeled concentrations are within about 10 percent of the 2010
SO<INF>2</INF> NAAQS, we were less confident in our prior statements
that potential adjustments to the Sierra Club modeling would not result
in modeled values near
[[Page 34188]]
or below the NAAQS.\5\ Additionally, the EPA stated in the Proposed
Error Correction that while individually these deficiencies are not
dispositive, collectively they are a sufficient basis for the EPA to
propose that we erred in relying on the Sierra Club modeling in making
the initial nonattainment designations for the three Texas areas.
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\5\ As explained in the EPA's final designations Technical
Support Document (TSD), the modeled 99th percentile daily maximum 1-
hour SO<INF>2</INF> concentrations for the Martin Lake and
Monticello facilities are 14 percent and 8 percent above the 2010
SO<INF>2</INF> NAAQS, respectively.
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The EPA received several comments on the Proposed Error Correction.
Sierra Club submitted a comment on the Proposed Error Correction that
included updated modeling (``September 2019 modeling''). Sierra Club's
updated September 2019 modeling addressed all aspects of the March 2016
modeling that the EPA had identified in the Proposed Error Correction
as a limitation or uncertainty. The September 2019 modeling purported
to demonstrate that the Martin Lake Electrical Station area did not
meet the 2010 SO<INF>2</INF> NAAQS at the time of designation in the
Round 2 Supplement (i.e., December 2016), and also currently does not
meet the 2010 SO<INF>2</INF> NAAQS based on more recent data. Sierra
Club did not submit updated modeling for the Big Brown and Monticello
areas as part of its September 2019 comment submission, but rather
asserted that the EPA's previously identified limitations (individually
or collectively) have no material effect on the model results for those
areas in the same way as they demonstrated with the Martin Lake area's
modeling.
The EPA also notes, upon re-review of the Proposed Error Correction
and Round 2 Supplement, that we did not acknowledge in the Proposed
Error Correction that we actually considered the collective impact of
all these same aspects of the modeling in the record for the Round 2
Supplement (to the extent those aspects remained in the March 2016
modeling relied on in the Round 2 Supplement).\6\ In the Proposed Error
Correction, we also did not explain any change in our thinking from our
assessment of the collective impact in the Round 2 Supplement's record.
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\6\ See pages 27-29, 48-50, and 75-77 of the EPA's final
designations TSD, available in the public docket and at <a href="https://www.epa.gov/sites/production/files/2016-11/documents/texas_4_deferred_luminant_tsd_final_docket.pdf">https://www.epa.gov/sites/production/files/2016-11/documents/texas_4_deferred_luminant_tsd_final_docket.pdf</a>.
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As explained further in the technical support document for this
withdrawal, the EPA has assessed Sierra Club's September 2019 modeling
submitted during the Proposed Error Correction public comment
period.\7\ This assessment supports the EPA's previous reliance on the
March 2016 modeling as the basis for its final nonattainment
designation for the Martin Lake area in the Round 2 Supplement. Based
on consideration of that information submitted by commenters and on
further consideration of the entirety of our record for the Round 2
Supplement, the EPA now has concerns with the accuracy of the Proposed
Error Correction's characterization of the March 2016 modeling and no
longer believes that this proposed basis supports the proposed
conclusion that an error correction is appropriate or that reliance on
such information for the nonattainment designation was in error. The
refined modeling submitted on the Proposed Error Correction
demonstrates that the EPA's Round 2 Supplement assessment of the impact
of further refining the March 2016 modeling was reasonable and correct,
that such refinement would not alter the conclusion that the Martin
Lake area was not attaining the NAAQS at the time of the Round 2
Supplement. Overall, the EPA's assessment of the information and of our
record for the Round 2 Supplement for all three areas is that
refinement of the aspects of the modeling the EPA identified in the
Proposed Error Correction would not alter the EPA's nonattainment
designations for any of the three nonattainment area designations in
the Round 2 Supplement, and that the submitted information further
confirms our Round 2 Supplement analysis of then-available data.
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\7\ See <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket ID No. EPA-HQ-
OAR-2014-0464.
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B. Comments on Texas's Monitoring Preference
In the Proposed Error Correction, the EPA also proposed that when
we considered all available information at the time of designation, we
erred in failing to give ``greater'' weight to the State of Texas'
preference to use ambient air monitors to characterize SO<INF>2</INF>
air quality in their state for purposes of the designation. We proposed
this despite also acknowledging in the proposal that because these
areas (around certain SO<INF>2</INF> emissions sources) were subject to
the Round 2 deadline of July 2, 2016, these areas were required to be
designated at that time based on the EPA's assessment of available
information even though the State of Texas stated a preference to later
characterize the areas based on future monitoring data and its
intention to install monitors for these areas.
In addition to the modeling submitted during the public comment
period for the Proposed Error Correction, the Sierra Club also
commented that the EPA was required to designate the three areas in
Texas by the court-ordered deadline based on the information available
at that time (i.e., Sierra Club's December 2015 and March 2016
modeling). Because monitoring information was not available in 2016 for
the Martin Lake, Big Brown, or Monticello areas, the Sierra Club stated
that monitoring data consequently could not inform the EPA's
designations decisions. The Environmental Protection Network (EPN)
submitted a similar comment claiming that the EPA did not have the
discretion to delay designations for these three areas in Texas under
the applicable court-ordered deadline and that the EPA was required to
designate the areas based on the best available data at the time of the
designations. Additionally, EPN asserted that Texas's preference for
future air quality monitoring did not undermine the available modeling
data demonstrating that the areas were violating the 2010
SO<INF>2</INF> NAAQS.
In light of the comments submitted on the Proposed Error
Correction, and the absence of a clearly identified error in the Round
2 Supplement, the EPA no longer believes that this proposed basis
supports the proposed conclusion that an error correction is
appropriate and no longer believes that we failed to give the
appropriate weight to the State's preference for future monitoring
information when we considered all available information at the time of
the Round 2 Supplement. For the reasons discussed below, the EPA has
concerns with the prior proposed assertion that the EPA was in error
for not giving greater weight to the state's preference for future
monitoring information in the absence of any available monitoring data
at that time, let alone over reliance on then-available air quality
modeling to assess SO<INF>2</INF> air quality. Given that the Proposed
Error Correction's basis was predicated on the EPA relying on or
weighing more heavily a preference for information that was not
available at the time the EPA was required to finalize the Round 2
Supplement, the EPA no longer believes such a basis provides
substantial support for the argument that the Round 2 Supplement should
be revised.
CAA section 107(d) specifies that the EPA make designations based
on the air quality at the time of final designations (i.e., determining
at the time of signature whether the area meets the NAAQS) and consider
all available information on air quality at that time. In other words,
the
[[Page 34189]]
EPA does not interpret the statute as allowing the EPA to consider
future air quality in the initial designations process, and the D.C.
Circuit has upheld this interpretation as reasonable.\8\ The record for
the Round 2 Supplement explains, and the EPA maintains, that both air
quality modeling and ambient monitoring are appropriate tools for
characterizing ambient air quality for purposes of informing decisions
to implement the SO<INF>2</INF> NAAQS, including designation
determinations.\9\ The EPA's reliance on modeling to assess
SO<INF>2</INF> air quality, even in the face of conflicting monitoring,
where appropriate, has been judicially affirmed. See, e.g., Montana
Sulphur & Chemical Company v. EPA, 666 F.3d 1174, 1185 (9th Cir. 2012).
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\8\ See Miss. Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 156
(D.C. Cir. 2015); Catawba County v. EPA, 571 F.3d 20, 43-44 (D.C.
Cir. 2009). The 2015 decision upheld the EPA's designations issued
just days before new certified air quality data became available
showing more areas violating the 2008 ozone NAAQS than the EPA
designated as nonattainment. See also State of Texas v. EPA, 983
F.3d 826, 837-838 (5th Cir. 2020) (holding that the EPA's
nonattainment designation, which modified the state's
recommendation, was not arbitrary and capricious because the county
was not compliant with the ozone NAAQS when the EPA promulgated its
designation and the CAA uses concrete terms such that a county
either does or does not meet the NAAQS).
\9\ Round 2 Supplement Reponses to Comments, Page 13. Available
in the public docket and at <a href="https://www.epa.gov/sites/production/files/2016-11/documents/rtc_so2_comments_received_document_4_tx_sources_final_0.pdf">https://www.epa.gov/sites/production/files/2016-11/documents/rtc_so2_comments_received_document_4_tx_sources_final_0.pdf</a>.
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In the Round 2 Supplement for these three areas, the EPA considered
Texas's recommendations but appropriately modified the recommendations,
per CAA section 107(d)(1)(B)(2), because they were not supported by
currently available information. Specifically, the EPA's assessment of
Sierra Club's modeling was that currently available information showed
violations of the 2010 SO<INF>2</INF> NAAQS. At the time of the EPA's
final nonattainment designations for portions of Freestone and Anderson
Counties, Rusk and Panola Counties, and Titus County, although Texas
preferred that the EPA designate the areas based on proposed future
monitoring data rather than on existing submitted modeling, there were
no representative monitoring data \10\ or other reliable modeling
demonstrations available to refute Sierra Club's information
demonstrating violations of the 2010 SO<INF>2</INF> NAAQS, as explained
in the EPA's final designations TSD.\11\ The absence of available
monitoring data at that time did not relieve the EPA of its obligation
to issue designations for these areas by the court-ordered deadline.
Furthermore, at the time of the final designations, the Agency did not
have the discretion to await the results of 3 years of ambient air
monitoring data (i.e., 2018-2020) from Texas's proposed (but not yet
established) monitoring sites before taking final action due to the
court's order to designate certain areas in Texas. There was, however,
as explained previously and in the EPA's final designations TSD, valid
modeling submitted by the Sierra Club based on the then-most recent
actual emissions demonstrating that the areas were violating the 2010
SO<INF>2</INF> NAAQS. As explained earlier, the EPA no longer believes
there were errors in our Round 2 Supplement's analysis that Sierra Club
submitted valid, representative modeling (based on the then-most recent
actual SO<INF>2</INF> emissions) that demonstrated that the areas were
violating the 2010 SO<INF>2</INF> NAAQS, or that further refining the
modeling would result in modeled values near or below the standard.
Therefore, even though the EPA considered Texas's preference for
monitoring, given that the statute requires that the EPA consider
available information, Texas's preference for reliance on monitoring
information when there were no such monitoring data available at the
time of the EPA's final designations in December 2016 did not and could
not rebut Sierra Club's modeling showing violations of the 2010
SO<INF>2</INF> NAAQS.\12\
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\10\ As explained in the EPA's intended and final designations
TSDs and the responses to comments document that accompanied the
Round 2 Supplement, at the time of the EPA's final designations on
December 13, 2016, there were no SO<INF>2</INF> monitors sited in
the areas of maximum concentration to properly characterize the air
quality around the Martin Lake, Big Brown, or Monticello areas, nor
were there SO<INF>2</INF> monitors in the same counties as the
facilities.
\11\ The EPA received a comment from the Utility Air Regulatory
Group on the Round 2 Supplement suggesting that the EPA wait for the
future completion of three years of monitoring before designating
certain Round 2 areas. In the Round 2 Supplement Responses to
Comments (page 14), the EPA responded that the Agency does not have
the discretion to await the results of future monitoring because of
the court order to designate certain areas by the July 2, 2016,
deadline.
\12\ See State of Texas v. EPA, 983 F.3d 826, 836-838 (5th Cir.
2020).
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III. Purpose of This Action
In the 2019 Proposed Error Correction, the EPA proposed that our
relying on the Sierra Club modeling along with our not giving greater
weight to Texas' preference for monitoring, represented an insufficient
basis for the EPA's initial nonattainment designations. For the reasons
discussed previously, the EPA no longer believes it has a basis under
these reasons individually or collectively to propose to or conclude
that we made errors in our nonattainment designations of these areas,
and, therefore, no longer believes that we have a basis to conclude
that the EPA could not determine, based on available information at the
time of issuing the designation, whether the three Texas areas that are
the subject of this proposed action were meeting or not meeting the
2010 SO<INF>2</INF> NAAQS (i.e., the conclusion necessary to correct
the designations to unclassifiable). Therefore, the EPA is withdrawing
the Proposed Error Correction.
IV. Statutory and Executive Order Reviews
This withdrawal of a proposed rule does not establish new
regulatory requirements. Hence, the requirements of other regulatory
statutes and Executive Orders that generally apply to rulemakings
(e.g., the Regulatory Flexibility Act) do not apply to this action.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Sulfur dioxide.
Michael S. Regan,
Administrator.
[FR Doc. 2021-13696 Filed 6-28-21; 8:45 am]
BILLING CODE 6560-50-P
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