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[Federal Register Volume 89, Number 244 (Thursday, December 19, 2024)]
[Proposed Rules]
[Pages 103734-103737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29935]

[[Page 103734]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2018-0715; FRL-12462-01-R6]

Air Plan Disapproval; Texas; Houston-Galveston-Brazoria Area 
Section 185 Fee Program; Cessation of Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is proposing to disapprove 
revisions to the Texas State Implementation Plan (SIP). The revisions 
were submitted by the Texas Commission on Environmental Quality (TCEQ 
or State) on November 27, 2018, to address CAA requirements for the 
Houston-Galveston-Brazoria (HGB) area relevant to the 1979 1-hour ozone 
national ambient air quality standard (NAAQS or standard). The EPA 
approved most portions of this submission on February 14, 2020. In this 
current action, we are proposing to disapprove the remaining portions 
not addressed in the February 14, 2020 action. This submission, titled 
``Severe Ozone Nonattainment Area Failure to Attain Fee,'' addresses 
the CAA section 185 requirement for fee collection programs, which 
applies to ozone nonattainment areas classified as Severe or Extreme 
that fail to attain by the required attainment date.

DATES: Written comments must be received on or before January 21, 2025.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2018-0715, at https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Jeff Riley, 214-665-8542, 
[email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov. While all documents in the 
docket are listed in the index, some information may not be publicly 
available due to docket file size restrictions or content (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Jeff Riley, EPA Region 6 Office, 
Infrastructure & Ozone Section, 214-665-8542, [email protected]. We 
encourage the public to submit comments via https://www.regulations.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 wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

    The background for this proposed action is discussed in detail in 
two preceding EPA rulemaking actions: our May 16, 2019 Proposed Rule 
(84 FR 22093) and our February 14, 2020 Final Rule (85 FR 8411, ``Final 
Rule'') to approve revisions to the Texas SIP pertaining to the HGB 
area and the revoked 1979 1-hour and 1997 8-hour ozone NAAQS.\1\ \2\ In 
EPA's Final rule, we: (1) Approved the State's December 14, 2018 
maintenance plan for maintaining both the 1-hour and 1997 ozone NAAQS 
through the year 2032 in the HGB area; (2) Determined that the HGB area 
continues to attain both the 1-hour and 1997 ozone NAAQS; (3) 
Determined that the HGB area met the five criteria in CAA section 
107(d)(3)(E) for redesignation with respect to both the 1-hour and 1997 
ozone NAAQS; (4) Terminated the anti-backsliding obligations for the 
HGB area with respect to the revoked 1-hour and 1997 ozone NAAQS; and, 
(5) Approved sufficient provisions of the State's November 27, 2018 SIP 
submission titled ``Severe Ozone Nonattainment Area Failure to Attain 
Fee'' such that there was as an equivalent alternative 185 fee program 
to address CAA section 185 requirements for the HGB 1-hour ozone NAAQS 
nonattainment area.\3\
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    \1\ Throughout this document, we refer to the 1979 1-hour ozone 
NAAQS as the ``1-hour ozone NAAQS'' and the 1997 8-hour ozone NAAQS 
as the ``1997 ozone NAAQS.''
    \2\ The EPA revoked both the 1-hour and 1997 ozone NAAQS along 
with associated designations and classifications (69 FR 23951, April 
30, 2004; and 80 FR 12264, March 6, 2015).
    \3\ The following elements of the November 27, 2018 submission 
were approved as an equivalent alternative 185 fee program to 
address CAA section 185: 30 TAC sections 101.100-101.102, 101.104, 
101.106-101.110, 101.113, 101.116, 101.117, 101.118(a)(1), 
101.118(a)(3), and 101.120-101.122. When this approval was 
subsequently challenged, EPA took a voluntary remand without vacatur 
of this approval. See Sierra Club v. EPA, D.C. Circuit Docket No. 
20-1121 (January 11, 2022).
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    In our February 14, 2020 Final Rule, EPA did not act on two 
provisions of the State's submitted 185 fee program for the 1-hour 
ozone NAAQS for the HGB area: Title 30 of the Texas Administrative Code 
(30 TAC) sections 101.118(a)(2) and 101.118(b). The Final Rule stated 
that the provisions that were approved at the time were sufficient to 
fulfill the requirement to have an equivalent alternative section 185 
fee program for the HGB nonattainment area with respect to the 1-hour 
ozone standard. However, the two not acted-upon provisions have not 
been withdrawn by Texas, and therefore remain pending before the Agency 
for consideration as SIP submissions. These two outstanding 185 fee 
program provisions are the focus of this proposed rule.

II. The EPA's Evaluation

1. Statutory and Regulatory Requirements

    CAA section 185 (Enforcement for Severe and Extreme ozone 
nonattainment areas for failure to attain) requirements apply to ozone 
nonattainment areas classified as Severe or Extreme that fail to attain 
by the required attainment date. It requires each major stationary 
source of Volatile Organic Compounds (VOC) located in an area that 
fails to attain by its attainment date to pay a fee to the State for 
each ton of VOC the source emits in excess of 80 percent of a baseline 
amount. CAA section 182(f) extends the application of this provision to 
major stationary sources of nitrogen oxides (NOX). States 
with ozone nonattainment areas classified as Severe or Extreme must 
submit a SIP revision that includes procedures for assessment and 
collection of such fees should the area fail to attain the standard by 
its attainment date. Under the 1-hour ozone standard, the HGB area, 
consisting of Brazoria, Chambers, Fort Bend, Galveston, Harris, 
Liberty, Montgomery, and Waller Counties, was designated as 
nonattainment and classified as Severe-17 with an attainment deadline 
of November 15, 2007 (56 FR 56694, November 6, 1991). Because the HGB

[[Page 103735]]

area was classified as a Severe area, Texas was required to submit a 
SIP revision addressing the CAA section 185 requirement. The HGB area 
subsequently failed to attain the 1-hour ozone NAAQS by the applicable 
attainment deadline of November 15, 2007 (77 FR 36400, June 19, 2012).
    Since 2010,\4\ the EPA has taken the position that the Agency can 
approve SIPs that include an equivalent alternative program to the 
section 185 fee program specified in the CAA when addressing anti-
backsliding for a revoked ozone standard under the principles of 
section 172(e). Section 172(e) requires EPA to develop regulations to 
ensure that controls in a nonattainment area are ``not less stringent'' 
than those that applied to the area before EPA revised a NAAQS to make 
it less stringent. Although section 172(e) does not directly apply 
where EPA has strengthened the NAAQS, as it did in 1997, 2008, and 
2015, EPA has applied the principles in section 172(e) when revoking 
less stringent ozone standards.\5\ EPA allows a State to adopt an 
alternative to CAA section 185 if the State demonstrates that the 
proposed alternative program is ``not less stringent'' than the direct 
application of CAA section 185. EPA has previously stated that one way 
to demonstrate this is to show that the alternative program provides 
equivalent or greater fees and/or emissions reductions than those 
directly attributable to the application of CAA section 185. EPA has 
approved equivalent alternative 185 fee equivalent programs in addition 
to the Final Rule. See 84 FR 12511 (April 2, 2019) (approving an 
equivalent alternative 185 fee program in New York), 77 FR 74372 (Dec. 
14, 2012) (approving an equivalent alternative program for South Coast 
Air Quality Management District).
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    \4\ See ``Guidance on Developing Fee Programs Required by Clean 
Air Act Section 185 for the 1-hour Ozone NAAQS.'' https://www.epa.gov/sites/production/files/2015-09/documents/1hour_ozone_nonattainment_guidance.pdf. Although the 2010 guidance 
was vacated and remanded by the D.C. Circuit on procedural grounds, 
the court did not prohibit alternative programs, stating ``neither 
the statute nor our case law obviously precludes that alternative.'' 
NRDC v. EPA, 643 F.3d 311 (D.C. Cir. 2011).
    \5\ In 2008, we revised the primary and secondary ozone NAAQS to 
0.075 parts per million (ppm), averaged over an 8-hour period (73 FR 
16436, March 27, 2008). In 2015, we again revised the primary and 
secondary ozone NAAQS to 0.070 ppm, averaged over an 8-hour period 
(80 FR 65292, October 26, 2015). However, EPA has not revoked the 
2008 standard, so section 172(e) would not apply to requirements 
under this standard. On November 7, 2022, the HGB area and the 
Dallas-Fort Worth (DFW) area were reclassified from Serious to 
Severe-15 nonattainment for the 2008 ozone NAAQS (87 FR 60926). As 
such, Texas is subject to a requirement to provide a new CAA section 
185 failure to attain fee program for both the DFW and HGB areas.
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    The TCEQ adopted the Severe Ozone Nonattainment Area Failure to 
Attain Fee program for the 1-hour ozone NAAQS (alternative section 185 
fee equivalent program) on May 22, 2013 (38 Tex. Reg. 3610, June 7, 
2013). However, the program was not submitted to EPA as a SIP revision 
until November 27, 2018. EPA's May 16, 2019 Proposed Rule evaluated the 
State's alternative section 185 fee equivalent program against the 
language of CAA sections 172(e) and 185 to determine whether the State 
had demonstrated that the proposed alternative program was ``not less 
stringent'' than the direct application of CAA section 185. EPA's 
February 14, 2020 Final Rule approved sufficient provisions of the SIP 
submission to determine that the State had met applicable requirements 
to have a section 185 fee program, or equivalent.

2. Summary of the State's Submission

    The November 27, 2018 alternative section 185 fee equivalent 
program SIP revision for the 1-hour ozone standard included Subchapter 
B (Failure to Attain Fee) in Chapter 101 (General Air Quality Rule) of 
30 TAC. The two remaining provisions that EPA has not yet acted on in 
this submission are 30 TAC sections 101.118(a)(2) and 101.118(b). Under 
30 TAC section 101.118 (Cessation of Program), the State's 185 fee 
equivalent program would be terminated following EPA action to: 
redesignate the area to attainment (101.118(a)(1)); make a finding of 
attainment (101.118(a)(2)); or otherwise end the Failure to Attain fee 
(101.118(a)(3)). 30 TAC section 101.118(b) provides that fees would be 
calculated but not invoiced, and fee collection may be placed in 
abeyance by the TCEQ, pending EPA action on quality-assured data 
showing the area's design value meets the 1-hour ozone standard, or a 
demonstration indicating that the area would have attained by the 
attainment date but for emissions emanating from outside the United 
States.

3. The EPA's Review of the State's Submission

    EPA's February 14, 2020 Final Rule approved sufficient provisions 
of the SIP submittal to determine that there was an operative 
alternative section 185 fee equivalent program for the HGB area. This 
prior approval included 30 TAC sections 101.118(a)(1) and 
101.118(a)(3). EPA determined these provisions provided mechanisms for 
terminating the program, through either EPA action to redesignate the 
area to attainment or other EPA action to terminate the anti-
backsliding requirements, that are consistent with section 185 
equivalent programs as allowed through the anti-backsliding principles 
of CAA section 172(e).
    30 TAC section 101.118(a)(2), however, allows for the alternative 
section 185 fee equivalent program to be terminated upon an EPA finding 
of attainment. The language of CAA section 185(a) clearly specifies 
redesignation as an attainment area as the only means by which an 
area's fee program obligation may be terminated. Allowing for cessation 
of the fee program through a finding of attainment by EPA is therefore 
contrary to the statutory requirement. While the 1-hour ozone standard 
has been revoked, as explained earlier EPA can only approve alternative 
185 programs that are equivalent to a statutory 185 program. Texas has 
provided no explanation as to how 185 program termination upon a 
finding of attainment could be equivalent to the statutory language in 
section 185, and EPA has not identified any such explanation either. 
Here, the equivalent mechanism is a functional redesignation, which 
terminates an area's anti-backsliding requirements for a revoked 
standard. As explained earlier, the Final Rule approved a mechanism to 
terminate the HGB equivalent alternative program upon EPA terminating 
the area's anti-backsliding requirements. EPA has identified no basis 
to propose approval of the remaining SIP provisions. EPA accordingly 
proposes to disapprove 30 TAC section 101.118(a)(2).
    30 section TAC 101.118(b) allows for placing fee payment into 
abeyance if the State submits to EPA three consecutive years of 
quality-assured data resulting in a design value that does not exceed 
the 1-hour ozone standard, or a demonstration indicating that the area 
would have attained by the attainment date but for emissions emanating 
from outside the United States. Under CAA section 185(a), the relevant 
sources shall ``pay a fee to the state . . . for each calendar year 
beginning after the attainment date, until the area is redesignated as 
an attainment area for ozone'' by EPA. As noted previously, the 
language of CAA section 185(a) clearly specifies redesignation as an 
attainment area as the only means by which an area's fee program 
obligation may be terminated. Thus, provisions that allow the fee 
obligation to be terminated prior to an EPA redesignation of the area 
as attainment are inconsistent with the relevant statutory language, 
and EPA has not

[[Page 103736]]

identified any basis to say that such provisions are equivalent to the 
statutory language. EPA accordingly proposes to disapprove 30 section 
TAC 101.118(b).
    EPA is proposing to disapprove 30 sections TAC 101.118(a)(2) and 
101.118(b), as discussed. However, EPA notes that our February 14, 2020 
Final Rule terminated anti-backsliding requirements with respect to the 
1-hour standard ozone standard for the HGB area. While that action was 
challenged, the case was ultimately dismissed,\6\ and the termination 
of those anti-backsliding requirements was effective. As such, the 
State is no longer required to have a section 185 fee program in place 
for the HGB area with respect to the 1-hour ozone standard. Therefore, 
while we are proposing to disapprove the relevant provisions of the 
State's alternative section 185 fee equivalent program for the reasons 
discussed in this notice, EPA is also proposing to find that these 
provisions are part of a SIP submission that is no longer required. 
Accordingly, we are proposing to find that the State does not have an 
obligation to correct the deficiencies identified in this proposed 
disapproval, and that this disapproval, if finalized, would not trigger 
mandatory sanctions under CAA section 179(b), or the EPA's obligation 
to promulgate a Federal Implementation Plan under CAA section 110(c).
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    \6\ The United States Court of Appeals for the 5th Circuit 
dismissed the case on December 1, 2022 (see Sierra Club v. EPA, 5th 
Circuit docket no. 20-60303).
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III. Proposed Action

    We are proposing to disapprove the 30 TAC sections 101.118(a)(2) 
and 101.118(b) of Texas's alternative section 185 fee equivalent 
program with respect to the 1-hour ozone NAAQS for the HGB area as 
submitted in the State's November 27, 2018 SIP revision. EPA proposes 
this disapproval with respect to the failure to attain fee program 
requirements under CAA sections 182 and 185 for the reasons discussed 
above. The effect of this proposal, if finalized, is that 30 sections 
TAC 101.118(a)(2) and 101.118(b) will not become part of Texas's State 
Implementation Plan. As our February 14, 2020 Final Rule terminated the 
anti-backsliding requirements with respect to the 1-hour standard for 
the HGB area, Texas has no obligation to have this alternative section 
185 fee program in place. Accordingly, we are proposing to find that 
Texas does not have an obligation to correct these deficiencies in its 
rules, and that this proposed disapproval, if finalized, would not 
trigger mandatory sanctions under CAA section 179(b). As previously 
noted, Texas is required to provide a CAA section 185 failure to attain 
fee program for both the DFW and HGB areas with respect to the 2008 
ozone standard, and this proposed action does not impact that 
requirement.

IV. Environmental Justice Considerations

    Executive Order (E.O.) 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 communities with 
environmental justice (EJ) concerns to the greatest extent practicable 
and permitted by law. Executive Order 14096 (Revitalizing Our Nation's 
Commitment to Environmental Justice for All, 88 FR 25251, April 26, 
2023) builds on and supplements E.O. 12898 and defines EJ as, among 
other things, ``the just treatment and meaningful involvement of all 
people, regardless of income, race, color, national origin, or Tribal 
affiliation, or disability in agency decision-making and other Federal 
activities that affect human health and the environment.''
    The air agency did not evaluate EJ considerations as part of its 
SIP submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. EPA did not perform an EJ 
analysis and did not consider EJ in this 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. 
Consideration of EJ is not required as part of this action, and there 
is no information in the record inconsistent with the stated goal of 
E.O. 12898/14096 of achieving EJ for communities with EJ concerns.

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 CAA 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 CAA. 
Accordingly, this proposed action to disapprove the remaining 
provisions of Texas' 185 fee program for 1-hour ozone NAAQS for the HGB 
area submitted to EPA on November 27, 2018, disapproves State law as 
not meeting Federal requirements and does not impose additional 
requirements beyond those imposed by State law.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action as defined in 
Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by 
E.O. 14094 (88 FR 21879, April 11, 2023), 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 (44 U.S.C. 3501 et seq.) because it does not contain any 
information collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA (5 
U.S.C. 601 et seq.). This action will not impose any requirements on 
small entities.

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 imposes no enforceable duty on any 
State, local, or Tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have Federalism implications as specified in 
E.O. 13132 (64 FR 43255, August 10, 1999). 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 proposed action has no Tribal implications as specified in 
E.O. 13175 (65 FR 67249, November 9, 2000). This action will neither 
impose substantial direct compliance costs on Federally recognized 
Tribal governments, nor preempt Tribal law. This action will not impose 
substantial direct compliance costs on Federally recognized Tribal 
governments because no actions will be required of Tribal governments. 
This action will also not preempt Tribal law

[[Page 103737]]

as it does not have applicable or related Tribal laws.

G. Executive Order: 13045 Protection of Children From Environmental 
Health & Safety Risks

    The EPA interprets E.O. 13045 as applying only to those regulatory 
actions that concern environmental health or safety risks that the EPA 
has reason to believe may disproportionately affect children, per the 
definition of ``covered regulatory action'' in section 2-202 of the 
Executive Order. Therefore, this action is not subject to Executive 
Order 13045 because it merely proposes to disapprove SIP revisions. 
Furthermore, the EPA's Policy on Children's Health does not apply to 
this action.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to E.O. 13211 (66 FR 28355, May 22, 
2001), because it is not a significant regulatory action under E.O. 
12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. This 
action is not subject to the requirements of section 12(d) of the NTTAA 
(15 U.S.C. 272 note) 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 communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
Executive Order 14096 (Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on 
and supplements E.O. 12898 and defines EJ as, among other things, ``the 
just treatment and meaningful involvement of all people, regardless of 
income, race, color, national origin, or Tribal affiliation, or 
disability in agency decision-making and other Federal activities that 
affect human health and the environment.''
    The air agency did not evaluate EJ considerations as part of its 
SIP submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. EPA did not perform an EJ 
analysis and did not consider EJ in this 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. 
Consideration of EJ is not required as part of this action, and there 
is no information in the record inconsistent with the stated goal of 
E.O. 12898/14096 of achieving EJ for communities with EJ concerns.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: December 12, 2024.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2024-29935 Filed 12-18-24; 8:45 am]
BILLING CODE 6560-50-P
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