Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023 / Rules and Regulations 67957 

1Henceforth, we refer to this proposal as ‘‘the 

April 2023 document’’ or ‘‘the April 2023 

proposal’’. This proposal is provided in the docket 

for this action. 

2See Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016) 

and Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir. 

2021) (applying the Bahr reasoning nationwide). 

on processes developed by State and 

local governments for coordination and 

review of proposed Federal financial 

assistance. 

This document provides early 

notification of our specific plans and 

actions for this program. 

Regulatory Flexibility Act Certification 

The Secretary certifies that the 

proposed waiver and extension of the 

project period would not have a 

significant economic impact on a 

substantial number of small entities. 

The only entities that would be affected 

by the proposed waiver and extension of 

the project period are the seven current 

ALN 84.263C grantees. 

The Secretary certifies that the 

proposed waiver and extension would 

not have a significant economic impact 

on these entities, because the extension 

of an existing project period imposes 

minimal compliance costs, and the 

activities required to support the 

additional year of funding would not 

impose additional regulatory burdens or 

require unnecessary Federal 

supervision. 

Paperwork Reduction Act of 1995 

This notice of proposed waiver and 

extension of the project period does not 

contain any information collection 

requirements. 

Accessible Format: On request to the 

program contact person listed under FOR

FURTHER INFORMATION CONTACT, 

individuals with disabilities can obtain 

this document in an accessible format. 

The Department will provide the 

requestor with an accessible format that 

may include Rich Text Format (RTF) or 

text format (txt), a thumb drive, an MP3 

file, braille, large print, audiotape, or 

compact disc, or other accessible format. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. You may access the official 

edition of the Federal Register and the 

Code of Federal Regulations at 

www.govinfo.gov. At this site you can 

view this document, as well as all other 

documents of this Department 

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(PDF). To use PDF, you must have 

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You may also access documents of the 

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Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

Glenna Wright-Gallo, 

Assistant Secretary for Special Education and 

Rehabilitative Services. 

[FR Doc. 2023–21852 Filed 9–29–23; 11:15 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2022–0309; FRL–10903– 

02–R6] 

Air Plan Disapproval; Texas; 

Contingency Measures for the Dallas– 

Fort Worth and Houston–Galveston– 

Brazoria Ozone Nonattainment Areas 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Pursuant to the Federal Clean 

Air Act (CAA or the Act), the 

Environmental Protection Agency (EPA) 

is disapproving revisions to the Texas 

State Implementation Plan (SIP) for the 

Dallas–Fort Worth (DFW) and Houston– 

Galveston–Brazoria (HGB) Serious 

ozone nonattainment areas for the 2008 

ozone National Ambient Air Quality 

Standard (NAAQS). Specifically, EPA is 

disapproving the portion of these SIP 

revisions that the state intended to 

address contingency measure 

requirements. Contingency measures are 

control requirements in a nonattainment 

area SIP that would take effect should 

the area fail to meet Reasonable Further 

Progress (RFP) emissions reductions 

requirements or fail to attain the 

NAAQS by the applicable attainment 

date. 

DATES: This rule is effective on 

November 2, 2023. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2022–0309. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet. Publicly available docket 

materials are available electronically 

through https://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Jeff 

Riley, EPA Region 6 Office, 

Infrastructure & Ozone Section, 214– 

665–8542, riley.jeffrey@epa.gov. Please 

call or email the contact listed above if 

you need alternative access to material 

indexed but not provided in the docket. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means the EPA. 

I. Background 

The background for this action is 

discussed in detail in our April 21, 

2023, proposal (88 FR 24522).1 In the 

April 2023 document, we proposed to 

disapprove portions of the May 13, 

2020, Texas SIP revisions addressing 

requirements for the 2008 8-hour ozone 

NAAQS for the two Serious ozone 

nonattainment areas in Texas—the DFW 

and HGB areas. As Serious ozone 

nonattainment areas, the DFW Area 

(Collin, Dallas, Denton, Ellis, Johnson, 

Kaufman, Parker, Rockwall, Tarrant, 

and Wise counties) and the HGB Area 

(Brazoria, Chambers, Fort Bend, 

Galveston, Harris, Liberty, Montgomery, 

and Waller counties) were both subject 

to CAA section 172(c)(9) for 

contingency measures as well as CAA 

182(c)(9) for the Serious ozone 

nonattainment area requirements. As 

such, the state must adopt and submit 

contingency measures for 

implementation should the area fail to 

meet RFP requirements or fail to attain 

the 2008 ozone NAAQS by the 

applicable attainment date. The May 13, 

2020, SIP submissions included 

provisions intended to satisfy the 

contingency measures requirement for 

both the DFW and HGB areas. For each 

area, the Texas Commission on 

Environmental Quality (TCEQ or State) 

identified the emission reductions from 

already-implemented mobile source 

measures resulting from the incremental 

turnover of the motor vehicle fleet each 

year to meet the contingency measures 

requirements. 

As explained in the April 2023 

proposal, the U.S. Court of Appeals for 

the District of Columbia Circuit (‘‘D.C. 

Circuit’’) issued a relevant decision in 

response to challenges to EPA’s rule 

implementing the 2015 ozone NAAQS 

(83 FR 62998 (December 6, 2018)). 

Sierra Club, et al. v. EPA, 985 F.3d 1055 

(D.C. Cir. 2021).2 Among the rulings in 

this decision, the D.C. Circuit vacated 

EPA’s interpretation of the CAA that 

had previously allowed states to rely on 

already-implemented control measures 

to meet the statutory requirements of 

CAA section 172(c)(9) or 182(c)(9) for 


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67958 Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023 / Rules and Regulations 

3Citing previous caselaw, the Court stated that 

contingency measures that are to take effect upon 

failure to satisfy standards are likewise not 

measures that have been implemented before such 

failure occurs (internal quotations omitted). Sierra 

Club, et al. v. EPA, 985 F.3d 1055, 1067–68 (D.C. 

Cir. 2021). 

4Henceforth, we refer to the HCAO and the TCEQ 

as ‘‘the commenter(s)’’. These comments are 

provided in the docket at https://

www.regulations.gov under docket ID: EPA–R06– 

OAR–2022–0309. 

5Note EPA’s recent final determination that the 

DFW and HGB Serious nonattainment areas failed 

to attain the 2008 ozone NAAQS by the areas’ 

attainment date. 87 FR 60926 (October 7, 2022). 

6Memorandum to file with subject ‘‘No EPA 

Action to be Taken on 3 Outstanding Texas 

Moderate Area Ozone State Implementation Plan 

Revisions (SIPs)’’, dated August 23, 2019 (2019 

memo). 

contingency measures in nonattainment 

plans for the ozone NAAQS (see 83 FR 

62998, 63026–27). The Court’s 

interpretation of the statute in the Sierra 

Club decision, which requires 

contingency measures be prospective 

and conditional, applies across the U.S.3

EPA acknowledges that it had 

previously interpreted the requirement 

differently, but now agrees that the 

plain language of section 172(c)(9) and 

section 182(c)(9) require that 

contingency measures be both 

conditional and prospective. EPA’s 

prior interpretation was premised on the 

theory that the statutory language is 

ambiguous, and that it was reasonable to 

interpret it to allow for other 

approaches. 

Our April 2023 document proposed 

disapproval of the contingency measure 

element of the May 13, 2020 SIP 

submissions for the DFW and HGB areas 

for purposes of the 2008 ozone NAAQS 

because the contingency measures 

identified by the State consisted entirely 

of emission reductions from measures 

that would occur regardless of whether 

the nonattainment area would fail to 

meet RFP or to attain by the applicable 

attainment date. As such, these 

measures do not satisfy the 

requirements of CAA sections 172(c)(9) 

and 182(c)(9) that contingency measures 

be both prospective and conditional, 

and thus go into effect only upon one 

of the statutory triggering events. 

The comment period on our April 

2023 proposal closed on May 22, 2023. 

We received one relevant supportive 

comment from the Harris County 

Attorney’s Office (HCAO), and one set 

of relevant adverse comments from the 

TCEQ.4 HCAO supported EPA’s 

proposed disapproval of the HGB area 

contingency measures and emphasized 

the need for additional emissions 

reductions in the face of the area’s 

continuing ozone pollution challenges. 

TCEQ disagreed with EPA’s 

interpretation of the CAA contingency 

measure requirement and Federal case 

law, arguing that our proposed 

disapproval was inconsistent with past 

Agency decisions on Texas 

nonattainment SIP elements. Our 

responses to the comments follow. 

II. Response to Comments 

Comment: The commenter supports 

EPA’s proposal to disapprove the 

contingency measures element of the 

May 13, 2020 Texas SIP revisions for the 

HGB 2008 8-hour ozone NAAQS 

Serious nonattainment area, claiming 

that the SIP submission fails to protect 

the public’s health and welfare by 

failing to provide emission reductions 

from contingency measures that would 

have been triggered by EPA’s October 7, 

2022, determination that the HGB 

Serious nonattainment area failed to 

attain the 2008 ozone NAAQS by the 

applicable attainment date.5 The 

commenter states that emissions 

reductions from Texas sources would 

assist in mitigating the public health 

impacts caused by ozone in the HGB 

area, and describes the health effects of 

exposure to ozone, including the effects 

on children and disadvantaged 

communities in the HGB area. The 

commenter includes numerous health 

studies in support of these statements. 

Response: The EPA acknowledges the 

commenter’s views and submission of 

the studies regarding exposure to 

ground level ozone. We agree with the 

commenter that the HGB area faces 

significant challenges in attaining the 

applicable ozone standards, and that 

additional control measures, including 

contingency measures, would provide 

meaningful emission reductions 

towards improving local air quality. 

EPA agrees that the purpose of 

contingency measures is to provide for 

additional emission reductions that will 

go into effect in areas in the event of a 

failure to meet RFP or failure to attain, 

to help to mitigate the problem during 

the period that the state is developing a 

new SIP submission to impose 

additional requirements as required by 

the applicable nonattainment 

classification. 

Comment: The commenter states that 

the EPA should withdraw its proposed 

disapproval of the DFW and HGB 2008 

ozone NAAQS contingency measures 

because the action is inconsistent with 

EPA’s past practice of taking no action 

on SIP elements for Texas 

nonattainment areas that have already 

been reclassified. 

Response: To support the idea that 

EPA’s April 2023 proposal is 

inconsistent with past practice, and that 

the contingency measures SIP element 

for the DFW and HGB 2008 eight-hour 

ozone NAAQS nonattainment areas 

under the Serious classification are now 

moot, the commenter cites a single 

memo dated August 23, 2019.6 EPA has 

included the 2019 memo in the docket 

for this rulemaking action. Upon review, 

this memo is incorrect, and should not 

have been understood to be an official 

agency policy statement or 

interpretation of the statute concerning 

the contingency measures requirement. 

The EPA employee who signed this 

memo did not have the authority to 

speak on behalf of the Agency regarding 

these matters. Furthermore, because the 

2019 memo does not accurately reflect 

the views of the EPA and is not 

evidence of any previous position, EPA 

has never relied on the 2019 memo to 

support any action. EPA is accordingly 

taking this opportunity to officially 

retract the 2019 memo. 

Second, to the extent that the 2019 

memo may have inadvertently suggested 

that Texas’ contingency measures SIP 

submittal from May 13, 2020, is 

somehow moot upon reclassification of 

these areas to Severe ozone 

nonattainment, that does not represent 

EPA’s position. EPA does not agree with 

such an interpretation of section 

172(c)(9) and section 182(c)(9). EPA 

does not agree that the contingency 

measures SIP element is moot in this 

situation, because one of the specific 

events that requires the triggering of 

such provisions has in fact occurred 

(i.e., failure to attain by the applicable 

attainment date). It is simply not logical 

to conclude that a reclassification to the 

next higher classification that is 

required by a failure to attain by the 

attainment date (see CAA 181(b)(2)) 

would moot the contingency measure 

requirement that is required to be 

triggered by the same failure to attain 

(see CAA 172(c)(9)). Such an approach 

would lead to absurd results that would 

effectively render the contingency 

measure requirement meaningless. 

Lastly, the commenter did not cite any 

other past EPA actions to support the 

claim that the April 2023 proposal 

conflicts with past EPA actions. EPA 

does not find this isolated, incorrect, 

and erroneously issued 2019 memo 

compelling evidence of precedent or 

practice on the matter of contingency 

measures. 

A reclassification occurs upon an EPA 

determination that an area failed to 

attain by its attainment date. That 

determination similarly triggers the 

requirement to implement contingency 

measures. Because the DFW and HGB 

areas did not attain by the applicable 


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Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023 / Rules and Regulations 67959 

7See Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016) 

and Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir. 

2021) (applying the Bahr reasoning nationwide). 

8The transportation conformity regulation 

defines a ‘‘protective finding’’ as a determination by 

EPA that a submitted control strategy 

implementation plan revision contains adopted 

control measures or written commitments to adopt 

enforceable control measures that fully satisfy the 

emissions reductions requirements relevant to the 

statutory provision for which the implementation 

plan revision was submitted, such as reasonable 

further progress or attainment. (See 40 CFR 93.101.) 

9See, 86 FR 24717 (May 10, 2021) (final rule 

approving Reasonable Further Progress Plan for the 

Houston-Galveston-Brazoria Ozone Nonattainment 

Area); 88 FR 24693 (April 24, 2023) (final rule 

approving Reasonable Further Progress Plan for the 

Dallas-Fort Worth Ozone Nonattainment Area). 

Serious area attainment date, 

contingency measures should have 

already gone into effect, and should still 

go into effect as soon as reasonably 

possible. As discussed further below, 

the contingency measures submitted by 

the State for purposes of the Serious 

area attainment plan are not approvable, 

and the State should take action 

promptly to replace them. 

As detailed in our April 2023 

proposed action, the D.C. Circuit 

vacated EPA’s prior interpretation of the 

CAA that allowed states to rely on 

already-implemented control measures 

to meet the statutory requirements of 

CAA section 172(c)(9) and 182(c)(9) for 

contingency measures in nonattainment 

plans for the ozone NAAQS. The effect 

of this decision is that the statutory 

requirement that contingency measures 

must be prospective and conditional 

applies across the U.S. Continued 

adherence to the now-invalidated prior 

interpretation, including agency policy 

statements to justify past practice, does 

not harmonize with the D.C. Circuit 

decision and is therefore not correct. In 

arguing that EPA’s proposed 

disapproval is inconsistent with past 

practice, the commenter acknowledges 

the reclassification of the DFW and HGB 

areas to Severe nonattainment areas on 

the effective date of EPA’s October 7, 

2022, final action finding that these 

areas failed to attain the 2008 ozone 

NAAQS by the applicable attainment 

date for Serious areas (87 FR 60926, 

October 7, 2022). Such failure to attain 

by the applicable attainment date is 

explicitly identified in the language of 

CAA section 172(c)(9) as one of the 

events triggering implementation of 

contingency measures. The May 13, 

2020, Texas SIP revisions did not 

establish prospective and conditional 

DFW and HGB area contingency 

measures whose implementation would 

be triggered by EPA’s finding that the 

areas had failed to attain. 

Per the statute and relevant court 

decisions, EPA must disapprove the 

contingency measures element of Texas’ 

May 13, 2020, submittal for the DFW 

area because these measures are based 

upon emissions reductions from 

already-implemented measures that 

would occur regardless of whether there 

was a triggering event, and therefore 

they are not prospective and conditional 

as required by statute.7

On May 10, 2021 (86 FR 24717), EPA 

finalized its approval of the HGB area 

RFP demonstration and associated 

motor vehicle emissions budgets 

(budgets), and a revised 2011 base year 

emissions inventory. In that final 

rulemaking, we did not take final action 

on our October 29, 2020, proposed 

approval of the contingency measures 

submitted by the State in the May 13, 

2020, SIP revision submission for the 

HGB area. EPA explained that it was 

reexamining the contingency measures 

element of the TCEQ submission for the 

HGB area in light of the D.C. Circuit 

decision, and that it would address 

those contingency measures in a 

separate future action. Consistent with 

our interpretation of the CAA 

contingency measures requirement for 

the DFW area subsequent to the D.C. 

Circuit decision, EPA must also 

disapprove the contingency measures 

element of Texas’ May 13, 2020, 

submittal for the HGB area. Our April 

2023 document proposed disapproval of 

the contingency measure element of the 

May 13, 2020 SIP submissions for the 

DFW and HGB areas for purposes of the 

2008 ozone NAAQS. 

Comment: The commenter disagrees 

that EPA’s disapproval of the DFW and 

HGB 2008 ozone NAAQS Serious area 

contingency measures would provide 

the basis for imposition of a 

transportation conformity freeze in 

these areas upon the effective date of 

EPA’s final action and therefore states it 

was not necessary for EPA to discuss the 

possibility of a protective finding.8

Response: EPA agrees with TCEQ on 

the limited ground that it was not 

necessary to discuss the possibility of a 

transportation conformity freeze or the 

eligibility of the Dallas-Fort Worth and 

Houston-Galveston-Brazoria areas for 

protective findings (as defined in 40 

CFR 93.101) under the transportation 

conformity regulations in the action 

proposing the disapproval of 

contingency measures for these areas for 

the 2008 ozone NAAQS. Thus, EPA is 

not taking final action on the protective 

finding discussed in the proposal and a 

transportation conformity freeze will 

not occur. A transportation conformity 

freeze would not occur in either of these 

areas under these circumstances 

because EPA is only disapproving 

contingency measures. Moreover, the 

State did not submit the contingency 

measures to provide emission 

reductions included in the areas’ 

approved RFP plans and the associated 

motor vehicle emissions budgets.9 As 

such EPA’s disapproval of the 

contingency measures would not impact 

the approval of the RFP plans and motor 

vehicle emissions budgets. Therefore, 

the approved motor vehicle emissions 

budgets would continue to be used in 

transportation conformity 

determinations by the metropolitan 

planning organizations for the Dallas 

and Houston areas after the effective 

date of the disapproval of the 

contingency measures. 

Comment: The commenter asserts that 

EPA’s prior allowance of alreadyimplemented control measures that 

obtain future emission reductions was 

an appropriate interpretation of the 

CAA contingency measure requirement, 

and one that states are capable of 

achieving. 

Response: We disagree with the 

commenter’s assertion that EPA’s prior 

interpretation of the CAA contingency 

measure requirement remains valid. 

Courts have now ruled, and EPA now 

acknowledges, that the prior 

interpretation was invalid. Sierra Club, 

et al. v. EPA, 985 F.3d 1055 (D.C. Cir. 

2021). The express statutory language of 

CAA section 172(c)(9) requires that 

contingency measures be both 

prospective and conditional. Thus, 

reliance on emission reductions from 

existing implemented measures, that 

will occur regardless of whether there is 

a triggering event, simply does not meet 

this requirement for contingency 

measures. TCEQ appears to disagree 

with the D.C. Circuit’s decision and 

reasoning in Sierra Club. EPA cannot 

disregard this decision. The Agency’s 

actions, including this rulemaking, must 

comport with applicable caselaw, which 

in this situation includes the D.C. 

Circuit’s decision in Sierra Club. EPA 

Region 6 recognizes the DFW and HGB 

areas face significant challenges in 

attaining the applicable ozone 

standards. We are available to assist the 

State with case-by-case questions 

regarding situations specific to each 

nonattainment area in the development 

of approvable contingency measures for 

ozone reductions, consistent with the 

statute and relevant court decisions. 

Comment: The commenter contends 

that because Texas developed and 

submitted the DFW and HGB 2008 

ozone NAAQS Serious area contingency 

measures in accordance with the 

requirements and statutory 

interpretation applicable at the time of 


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67960 Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023 / Rules and Regulations 

10See 84 FR 44238, August 23, 2019. 

11Comments received on our October 9, 2020 

proposed approval are provided in the docket for 

that action at https://www.regulations.gov under 

docket ID: EPA–R06–OAR–2020–0161. 

12EPA’s July 1, 2021, determination that TCEQ’s 

2020 Milestone Compliance Demonstration 

adequately established that the 2008 ozone NAAQS 

Serious RFP milestone emission reductions were 

met for the DFW and HGB nonattainment areas is 

provided in the docket for this action. 

submittal, EPA should have finalized its 

proposed approvals of the contingency 

measures. 

Response: We acknowledge TCEQ’s 

development and timely May 13, 2020 

submittal of the DFW and HGB 

contingency plans to meet EPA’s August 

3, 2020, submittal deadline for the 2008 

ozone Serious SIP revisions, and that 

these submissions were consistent with 

past EPA approvals of alreadyimplemented contingency measures.10

EPA must act upon SIP submissions in 

full consideration of the established 

requirements and statutory 

interpretations, including court rulings, 

that apply at the time of EPA’s action. 

In this situation, the D.C. Circuit has 

made clear that EPA and Texas’ prior 

statutory interpretation concerning 

contingency measures is not consistent 

with the CAA, and approval of 

contingency measures that are not 

prospective and conditional would be 

inconsistent with the CAA. Therefore, it 

was not possible for EPA to proceed 

with an approval after the D.C. Circuit’s 

decision in Sierra Club. The SIP 

submissions at issue in this action were 

still pending before the Agency when 

the D.C. Circuit issued the relevant 

court decision, and EPA must now take 

action consistent with that decision. 

The DFW RFP proposal comment 

period ended on November 9, 2020, and 

relevant adverse comments were 

received on EPA’s proposed approval.11

As a required part of the Agency’s 

rulemaking process, EPA must review, 

evaluate, and respond to all relevant 

comments in the issuance of a final 

action. EPA was timely in conducting 

the review and evaluation of such 

comments in the development of our 

final action. EPA did not complete this 

process, and did not take final action, in 

advance of the January 2021 D.C. Circuit 

decision. Had it done so more quickly, 

however, this could potentially have led 

to a need for EPA to exercise its 

authority under section 110(k)(6) or 

section 110(k)(5) after such approval. 

But in this rulemaking, EPA must 

adhere to its obligations under section 

110(k)(2), (3), and (4) to approve, 

disapprove, conditionally approve, in 

whole or in part, the contingency 

measures in the SIP submissions at 

issue. EPA may only approve those SIP 

provisions that actually meet applicable 

legal requirements, such as the 

requirement that contingency measures 

must be conditional and prospective. 

Similarly, EPA must also adhere to its 

obligations under section 110(l) which 

directs, inter alia, that the agency shall 

not approve a revision to a SIP unless 

it meets applicable requirements of the 

CAA. 

Comment: The commenter argues that 

because the DFW and HGB areas have 

met the applicable Serious area RFP 

requirements for the 2008 ozone 

NAAQS, there is no need for 

contingency measures for failure to meet 

RFP. Therefore, the commenter argues 

that EPA should not have disapproved 

the contingency measures with respect 

to RFP requirements. 

Response: We agree with the 

commenter that the DFW and HGB 2008 

8-hour ozone NAAQS Serious 

nonattainment areas did meet RFP 

requirements, as was recognized by 

EPA’s July 1, 2021 determination that 

the 2008 ozone NAAQS Milestone 

Compliance Demonstration for the 2020 

Calendar Year adequately established 

that the January 1, 2021 RFP milestone 

emission reductions were met.12

However, although the RFP contingency 

measures were not triggered by a failure 

of either area to meet RFP emission 

reductions requirements, the State 

relied on those same alreadyimplemented mobile source fleet 

turnover reductions as contingency 

measures for purposes of a failure to 

attain the NAAQS. Thus, even if 

contingency measures were not needed 

for purposes of a failure to meet RFP, 

such measures were still needed in the 

event of a failure to attain. As 

previously noted, on October 7, 2022, 

EPA issued a final determination that 

the DFW and HGB Serious 

nonattainment areas failed to attain the 

2008 8-hour ozone NAAQS by the 

applicable attainment dates. CAA 

section 172(c)(9) requires contingency 

measures to be implemented upon an 

area’s failure to meet RFP requirements 

or failure to attain the NAAQS by the 

applicable attainment date. 

The May 13, 2020, Texas SIP 

submissions did not include prospective 

and conditional contingency measures 

for the DFW or HGB areas that would be 

triggered by EPA’s finding that the areas 

had failed to attain, as required by 

section 172(c)(9). Although the RFP 

contingency measures would not have 

been triggered by a failure to meet RFP 

emission reductions, those same 

measures would have been required for 

failure to attain and therefore triggered 

for implementation by EPA’s October 7, 

2022 final determination. Put another 

way, and assuming that the state had 

separate contingency measures triggered 

by failure to meet RFP and contingency 

measures triggered by failure to attain, 

EPA agrees with TCEQ that there is no 

longer a need for contingency measures 

triggered by failure to meet RFP for the 

DFW and HGB Serious nonattainment 

plan for purposes of the 2008 8-hour 

ozone NAAQS, because these areas met 

RFP for this specific classification. 

However, contingency measures are still 

required for the failure to attain (and 

indeed, noting the fact that areas failed 

to attain, should already have taken 

effect). The SIP submissions containing 

the deficient contingency measures are 

the basis for this disapproval. Even 

though the triggering event has occurred 

(the areas failed to attain), and even 

though these areas met RFP, the State 

must still meet the statutory 

requirement for contingency measures 

for these areas’ Serious classification. 

This means the State must now adopt 

additional measures beyond those 

required under the Serious area plan. 

Lastly, it is worth noting that both 

DFW and HGB continue to be in 

violation of the 2008 ozone standards 

with 2022 Design values of 77 ppb and 

78 ppb respectively. Preliminary 2023 

data (not a full year of data and not 

certified for quality assurance/quality 

control) indicates these areas continue 

to violate the standard. 

Comment: The commenter asserts that 

if the EPA’s proposed disapproval is not 

withdrawn, EPA should provide 

actionable guidance on how to 

implement contingency measures for an 

RFP milestone and attainment year that 

has already passed. 

Response: While EPA acknowledges 

the request to provide actionable 

guidance in this rulemaking, we do not 

agree that it is relevant to the question 

of whether to disapprove the present 

SIP submissions. The fact that the State 

did not provide approvable contingency 

measures in these SIP submissions, and 

thus cannot now adopt and implement 

new contingency measures in the 

original timeframe envisioned in the 

Act, does not excuse the State from 

meeting the requirement, even if late. 

Nevertheless, EPA’s general advice on 

this matter following the Sierra Club 

decision is that the State should move 

expeditiously to adopt and implement 

contingency measures that meet the 

Act’s requirements as interpreted in that 

decision. The contingency measures in 

the SIP submissions at issue in this 

action are inconsistent with statutory 

requirements, as reflected in that 

decision. 


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Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023 / Rules and Regulations 67961 

13See https://www.epa.gov/ejscreen. 14See, also, 80 FR 65292 (October 26, 2015). 

We recognize that the court decision 

requiring that contingency measures 

must be prospective and contingent 

measures, and thus cannot be (or cannot 

rely on emission reductions from) 

already implemented measures, came 

after Texas made this SIP submission 

but it is worth noting, if Texas had 

developed approvable contingency 

measures any time before EPA’s October 

2022 determination that the areas failed 

to attain, those measures could have 

been implemented timely. It is only 

because the attainment date has passed 

and the State’s SIP submission is not 

approvable in light of the court 

decision, that timely adoption and 

implementation of other appropriate 

contingency measures is no longer 

possible. Situations in which a state and 

EPA would have to address deficient 

contingency measures after the state had 

already failed to meet RFP or failed to 

attain should generally not occur. 

While EPA acknowledges the unusual 

circumstances of the Sierra Club 

decision having occurred after TCEQ’s 

submittal, the appropriate course of 

action at this point is to address the 

deficiency by providing approvable 

contingency measures for the Serious 

area classifications as quickly as 

reasonably possible. Further, the state 

should implement the new measures as 

soon as reasonably possible because the 

statutory requirement for 

implementation of those contingency 

measures has already arisen as a result 

of the failure to attain in the DFW and 

HGB areas. Contrary to commenter’s 

assertion, this is not retroactive 

implementation. EPA is not asking the 

State to accomplish an impossible task. 

The State should follow the applicable 

SIP-development process to develop 

and submit approvable contingency 

measures and should implement these 

measures as soon as reasonably 

possible. The measures would not apply 

in the past or be applied retroactively. 

The measures would apply 

prospectively in that they would 

achieve emissions reductions after being 

developed and implemented, and the 

State should develop and implement 

them as soon as possible because the 

failures to attain have already occurred 

(and thus the need for the measures has 

already been triggered). 

EPA is not requiring the state to 

comply with the contingency measure 

requirement for the Serious area plan 

retrospectively. EPA does not expect the 

state to go back in time and impose such 

measures in the past. EPA does, 

however, expect the state to develop 

and submit additional measures now to 

get the emission reductions that the 

contingency measures should be 

achieving now, even if belatedly, to 

continue progress toward meeting the 

NAAQS. EPA emphasizes that requiring 

a state to meet a requirement in the 

present, even if late, does not equate to 

requiring a state to comply in the past. 

Moreover, to allow the passage of time 

due to delays in a state’s SIP 

submission, or as in this case the 

submission being unapprovable, to 

obviate the need to submit contingency 

measures because implementation 

timeframes have passed, would be a 

clear circumvention of the Clean Air 

Act’s requirements. 

EPA Region 6 is available to assist 

Texas with case-by-case questions 

regarding situations specific to each 

nonattainment area in the development 

and implementation of approvable 

contingency plans for ozone reductions, 

consistent with the statute and relevant 

court decisions. 

III. Final Action 

Based upon the statutory 

requirements of section 172(c)(9), the 

EPA is disapproving the contingency 

measures element of the May 13, 2020, 

Texas SIP revisions for Serious 

nonattainment areas under the 2008 8- 

hour ozone NAAQS. EPA is finalizing 

this disapproval with respect to the 

contingency measure requirements 

under CAA section 172(c)(9) for the 

reasons discussed above. 

As a consequence of the disapproval 

of the contingency measure element, 

within 24 months of the effective date 

of this action, the EPA must promulgate 

a Federal implementation plan under 

CAA section 110(c) unless we approve 

subsequent SIP submissions that correct 

the plan deficiencies. In addition, under 

40 CFR 52.31, the offset sanction in 

CAA section 179(b)(2) will be imposed 

18 months after the effective date of this 

action, and the highway funding 

sanction in CAA section 179(b)(1) will 

be imposed six months after the offset 

sanction is imposed. A sanction will not 

be imposed if the EPA determines that 

a subsequent SIP submission corrects 

the identified deficiencies before the 

applicable deadline. 

IV. Environmental Justice 

Considerations 

As stated in our April 2023 proposal 

and for informational purposes only, 

EPA conducted screening analyses of 

the 10-county DFW and 8-county HGB 

Serious ozone nonattainment areas 

using EPA’s EJScreen (Version 2.1) EJ 

screening and mapping tool.13 The 

results of this analysis are provided for 

informational and transparency 

purposes, not as a basis of our proposed 

action. The EJScreen analysis reports are 

available in the docket for this 

rulemaking. The EPA found, based on 

the EJScreen analyses, that this final 

action will not have disproportionately 

high or adverse human health or 

environmental effects on a particular 

group of people, as EPA’s disapproval of 

these contingency measures will require 

ongoing reductions of ozone precursor 

emissions, as required by the CAA. 

Specifically, this final rule would 

require that Texas submit plans for each 

area containing prospective and 

conditional contingency measures 

consistent with the D.C. Circuit 

decision, which would help to improve 

air quality in the affected nonattainment 

area. Information on ozone and its 

relationship to negative health impacts 

can be found at https://www.epa.gov/ 

ground-level-ozone-pollution.14

V. 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 review state choices, 

and approve those choices if they meet 

the minimum criteria of the Act. 

Accordingly, this final action 

disapproves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. 

Additional information about these 

statutes and Executive orders can be 

found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This final action is not a significant 

regulatory action and was therefore not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA, because this final SIP disapproval 

will not in-and-of itself create any new 

information collection burdens, but will 

simply disapprove certain State 

requirements for inclusion in the SIP. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 


ddrumheller on DSK120RN23PROD with RULES1
67962 Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023 / Rules and Regulations 

15See https://www.epa.gov/environmentaljustice/ 

learn-about-environmental-justice. 

under the RFA. This action will not 

impose any requirements on small 

entities. This final SIP disapproval will 

not in-and-of itself create any new 

requirements but will simply 

disapprove certain State requirements 

for inclusion in the SIP. 

D. Unfunded Mandates Reform Act 

(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. This action finalizes 

disapproval of certain 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 

This 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. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175, because the SIP revision 

that EPA is disapproving would not 

apply on any Indian reservation land or 

in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction, and 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 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that 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 this final SIP disapproval will 

not in-and-of itself create any new 

regulations, but will simply disapprove 

certain State requirements for inclusion 

in the SIP. 

H. 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. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12(d) of the NTTAA directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. EPA believes that this 

action is not subject to the requirements 

of section 12(d) of the NTTAA because 

application of those requirements would 

be inconsistent with the CAA. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 15

The air agency did not evaluate 

environmental justice considerations as 

part of its SIP submittal; the CAA and 

applicable implementing regulations 

neither prohibit nor require such an 

evaluation. EPA performed an 

environmental justice analysis, as is 

described above in the section titled 

‘‘Environmental Justice 

Considerations.’’ The analysis was done 

for the purpose of providing additional 

context and information about this 

rulemaking to the public, not as a basis 

of the action. Due to the nature of the 

action being taken here, this action is 

expected to have a neutral to positive 

impact on the air quality of the affected 

area. In addition, there is no information 

in the record upon which this decision 

is based inconsistent with the stated 

goal of E.O. 12898 of achieving 

environmental justice for people of 

color, low-income populations, and 

Indigenous peoples. 

K. Congressional Review Act (CRA) 

This action is subject to the 

Congressional Review Act, 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). 

L. Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by December 4, 2023. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action 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, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Volatile organic compounds. 

Dated: September 25, 2023. 

Earthea Nance, 

Regional Administrator, Region 6. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency amends 40 CFR part 52 as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart SS—Texas 

■ 2. Section 52.2273 is amended by 

adding paragraph (f) to read as follows: 

§ 52.2273 Approval status. 

* * * * * 

(f) The contingency measure element 

of the following Texas SIP revisions 


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Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023 / Rules and Regulations 67963 

1 In FDEP’s April 1, 2022, submission, the State 

requested several other approvals from EPA, and 

EPA is addressing those rules in a separate action. 

submittals is disapproved, effective on 

November 2, 2023: 

(1) The ‘‘Dallas-Fort Worth and 

Houston-Galveston-Brazoria Serious 

Classification Reasonable Further 

Progress State Implementation Plan 

Revision for the 2008 Eight-Hour Ozone 

National Ambient Air Quality 

Standard’’ adopted March 4, 2020, and 

submitted May 13, 2020. 

(2) The ‘‘Dallas-Fort Worth Serious 

Classification Attainment 

Demonstration State Implementation 

Plan Revision for the 2008 Eight-Hour 

Ozone National Ambient Air Quality 

Standard’’ adopted March 4, 2020, and 

submitted May 13, 2020. 

(3) The ‘‘Houston-Galveston-Brazoria 

Serious Classification Attainment 

Demonstration State Implementation 

Plan Revision for the 2008 Eight-Hour 

Ozone National Ambient Air Quality 

Standard’’ adopted March 4, 2020, and 

submitted May 13, 2020. 

[FR Doc. 2023–21757 Filed 10–2–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 

[EPA–R04–OAR–2022–0608; FRL–10387– 

02–R4] 

Air Plan Approval; Florida; 

Noninterference Demonstrations for 

Removal of CAIR and Obsolete Rules 

in the Florida SIP 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a portion of 

a State Implementation Plan (SIP) 

revision submitted by the Florida 

Department of Environmental Protection 

(FDEP) on April 1, 2022, for the purpose 

of removing several rules from the 

Florida SIP. EPA is approving the 

removal of the State’s Clean Air 

Interstate Rule (CAIR) rules from the 

Florida SIP as well as several 

Reasonably Available Control 

Technology (RACT) rules for particulate 

matter (PM) because these rules have 

become obsolete. The State has 

provided a non-interference 

demonstration to support the removal of 

these rules from the Florida SIP 

pursuant to the Clean Air Act (CAA or 

Act). 

DATES: This rule is effective November 

2, 2023. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2022–0608. All documents in the docket 

are listed on the www.regulations.gov 

website. Although listed in the index, 

some information may not be publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air Regulatory Management Section, 

Air Planning and Implementation 

Branch, Air and Radiation Division, 

U.S. Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW, Atlanta, 

Georgia 30303–8960. EPA requests that 

if at all possible, you contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section to schedule your 

inspection. The Regional Office’s 

official hours of business are Monday 

through Friday 8:30 a.m. to 4:30 p.m., 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Evan Adams, Air Planning and 

Implementation Branch, Air and 

Radiation Division, U.S. Environmental 

Protection Agency, Region 4, 61 Forsyth 

Street SW, Atlanta, Georgia 30303–8960. 

The telephone number is (404) 562– 

9009. Mr. Adams can also be reached 

via electronic mail at adams.evan@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On April 1, 2022, FDEP submitted a 

SIP revision to remove Rules 62– 

296.470, Florida Administrative Code 

(F.A.C.), Implementation of Federal 

Clean Air Interstate Rule, 62–296.701, 

F.A.C., Portland Cement Plants, 62– 

296.703, F.A.C., Carbonaceous Fuel 

Burners, 62–296.706, F.A.C., Glass 

Manufacturing Process, 62–296.709, 

F.A.C., Lime Kilns, and 62–296.710, 

F.A.C., Smelt Dissolving Tanks from the 

SIP.1 Florida repealed Rule 62–296.470 

on August 14, 2019, through a State 

regulatory action because CAIR has 

sunset and, under CSAPR, EPA 

determined that sources in Florida do 

not contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other State with 

respect to the covered NAAQS. Because 

the Cross-State Air Pollution Rule 

(CSAPR) replaced CAIR, and EPA 

previously determined that CSAPR does 

not apply to Florida, neither of these 

rules have any applicability in Florida 

today. Similarly, Florida’s PM RACT 

rules only apply to emission units that 

have been issued an air permit on or 

before May 30, 1988. There are no 

longer any units in the State still in 

operation covered by Rules 62–296.701, 

62–296.703, 62–296.706, 62–296.709, 

and 62–296.710. Therefore, removal of 

these rules from the SIP will not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

applicable requirement of the CAA. See 

CAA section 110(l). 

Through a notice of proposed 

rulemaking (NPRM) published on 

August 11, 2023 (88 FR 54534), EPA 

proposed to approve the portion of 

Florida’s April 1, 2022, SIP submittal 

seeking removal of Florida Rules 62– 

296.470, 62–296.701, 62–296.703, 62– 

296.706, 62–296.709, and 62–296.710 

from the SIP. The details of Florida’s 

submission, as well as EPA’s rational for 

removing these rules, are described in 

more detail in EPA’s August 11, 2023, 

NPRM. Comments on the August 11, 

2023, NPRM were due on or before 

September 11, 2023. No adverse 

comments were received on the August 

11, 2023, NPRM. 

II. Incorporation by Reference 

In this document, EPA is finalizing 

regulatory text that includes 

incorporation by reference. EPA is 

finalizing the removal of Rules 62– 

296.470, F.A.C., Implementation of 

Federal Clean Air Interstate Rule, 62– 

296.701, F.A.C., Portland Cement 

Plants, 62–296.703, F.A.C., 

Carbonaceous Fuel Burners, 62– 

296.706, F.A.C., Glass Manufacturing 

Process, 62–296.709, F.A.C., Lime Kilns, 

and 62–296.710, F.A.C., Smelt 

Dissolving Tanks from the Florida SIP, 

which is incorporated by reference in 

accordance with the requirements of 1 

CFR part 51, as discussed in Section I 

of this preamble. EPA has made and 

will continue to make the SIP generally 

available at the EPA Region 4 Office 

(please contact the person identified in 

the ‘‘For Further Information Contact’’ 

section of this preamble for more 

information). 

III. Final Action 

EPA is approving the portion of the 

April 1, 2022, Florida SIP revision that 

consists of the removal of Rules 62– 

296.470, 62–296.701, 62–296.703, 62– 

296.706, 62–296.709, and 62–296.710 

from the Florida SIP. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 


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