[Federal Register Volume 88, Number 190 (Tuesday, October 3, 2023)]
[Rules and Regulations]
[Pages 67957-67963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21757]


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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.

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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, <a href="/cdn-cgi/l/email-protection#1d6f747178643377787b7b6f78645d786d7c337a726b"><span class="__cf_email__" data-cfemail="9be9f2f7fee2b5f1fefdfde9fee2dbfeebfab5fcf4ed">[email protected]</span></a>. 
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.
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    \1\ Henceforth, 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.
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    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

[[Page 67958]]

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.
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    \2\ See 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).
    \3\ Citing 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).
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    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.
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    \4\ Henceforth, 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.
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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.
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    \5\ Note 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).
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    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.
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    \6\ Memorandum 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).
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    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

[[Page 67959]]

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\
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    \7\ See 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).
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    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\
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    \8\ The 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.)
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    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.
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    \9\ See, 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).
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    Comment: The commenter asserts that EPA's prior allowance of 
already-implemented 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

[[Page 67960]]

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 
already-implemented 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.
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    \10\ See 84 FR 44238, August 23, 2019.
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    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.
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    \11\ Comments 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.
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    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 
already-implemented 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.
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    \12\ EPA'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.
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    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.

[[Page 67961]]

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

[[Page 67962]]

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\
---------------------------------------------------------------------------

    \15\ See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
---------------------------------------------------------------------------

    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

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. Section 52.2273 is amended by adding paragraph (f) to read as 
follows:


Sec.  52.2273  Approval status.

* * * * *
    (f) The contingency measure element of the following Texas SIP 
revisions

[[Page 67963]]

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


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