PETITION for REVIEW in Accordance with 42 U.S.C

Case: 18-60606 Document: 00514619867 Page: 1 Date Filed: 08/28/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STATE OF TEXAS; GREG ) ABBOTT, GOVERNOR OF ) TEXAS; TEXAS COMMISSION ) ON ENVIRONMENTAL ) QUALITY ) ) Petitioners, ) ) v. ) No. ______) UNITED STATES ) ENVIRONMENTAL ) PROTECTION ) AGENCY; ANDREW ) WHEELER, in his ofﬁcial capacity ) as Acting Administrator of the ) United States Environmental ) Protection Agency, ) ) Respondents. )

PETITION FOR REVIEW In accordance with 42 U.S.C. § 7607(b)(1) and Federal Rule of Appellate Proce- dure 15, the State of Texas; Greg Abbott, Governor of Texas; and the Texas Com- mission on Environmental Quality petition the Court for review of the United States Environmental Protection Agency’s ﬁnal action entitled “Additional Air Quality Designations for the 2015 Ozone National Ambient Air Quality Standards—San An- tonio, Texas Area,” 83 Fed. Reg. 35136 ( July 25, 2018), a copy of which is enclosed with this ﬁling. Case: 18-60606 Document: 00514619867 Page: 2 Date Filed: 08/28/2018

Jurisdiction and venue lie in this Court under 42 U.S.C. § 7607(b)(1). The challenged action makes air-quality designations under 42 U.S.C. § 7407(d) for eight contiguous Texas counties. It is therefore “locally or regionally applicable,” rather than “nationally applicable” or “based on a determination of nationwide scope or effect.” 42 U.S.C. § 7607(b)(1). This petition for review is timely ﬁled within sixty days of the challenged action’s publication in the Federal Register. See id.

Respectfully submitted.

Ken Paxton /s/ Scott A. Keller Attorney General of Texas Scott A. Keller Solicitor General Jeffrey C. Mateer [email protected] First Assistant Attorney General Bill Davis Ofﬁce of the Attorney General Assistant Solicitor General P.O. Box 12548 (MC 059) [email protected] Austin, Texas 78711-2548 Tel.: (512) 936-1896 David J. Hacker Fax: (512) 370-9191 Special Counsel for Civil Litigation

Craig J. Pritzlaff Assistant Attorney General

Counsel for Petitioners

2 Case: 18-60606 Document: 00514619867 Page: 3 Date Filed: 08/28/2018

Certificate of Service

On August 28, 2018, this petition for review was served by certiﬁed mail, return receipt requested, on:

Hon. Andrew Wheeler, Acting Administrator Ofﬁce of the Administrator, Mail Code 1101A United States Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, D.C. 20460

Hon. Jeff Sessions Attorney General of the United States United States Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001

Correspondence Control Unit Ofﬁce of General Counsel (2311) United States Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, D.C. 20460

/s/ Scott A. Keller Scott A. Keller Solicitor General

3 Case: 18-60606 Document: 00514619867 Page: 4 Date Filed: 08/28/2018

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■ 10. Add table 2 to subpart LLL of part for the 2015 ozone NAAQS in actions II. What is the purpose of this action? 63 to read as follows: signed by the Administrator on III. What is ozone and how is it formed? November 6, 2017, and April 30, 2018. IV. What are the 2015 ozone NAAQS and the TABLE 2 TO SUBPART LLL OF PART health and welfare concerns they DATES: The effective date of this rule is address? 63—1989 TOXIC EQUIVALENCY FAC- September 24, 2018. V. What are the CAA requirements for air TORS (TEFS) ADDRESSES: The EPA has established a quality designations? docket for this action under Docket ID VI. What is the chronology for this Dioxins/Furans TEFs 1989 No. EPA–HQ–OAR–2017–0548. All designations rule and what guidance did documents in the docket are listed in the EPA provide? 2,3,7,8–TCDD ...... 1 VII. What air quality data has the EPA used 1,2,3,7,8-PeCDD ...... 0.5 the index at http://www.regulations.gov. Although listed in the index, some to designate the counties in the San 1,2,3,4,7,8-HxCDD ...... 0.1 Antonio-New Braunfels, Texas CBSA for 1,2,3,6,7,8-HxCDD ...... 0.1 information is not publicly available, the 2015 ozone NAAQS? 1,2,3,7,8,9-HxCDD ...... 0.1 i.e., Confidential Business Information VIII. What are the ozone air quality 1,2,3,4,6,7,8-HpCDD ...... 0.01 or other information whose disclosure is classifications? OCDD ...... 0.001 restricted by statute. Certain other IX. Where can I find information forming the 2,3,7,8–TCDF ...... 0.1 material, such as copyrighted material, basis for this rule and exchanges 1,2,3,7,8-PeCDF ...... 0.05 between the EPA and the state? 2,3,4,7,8-PeCDF ...... 0.5 is not placed on the internet and will be publicly available only in hard copy X. Environmental Justice Concerns 1,2,3,4,7,8-HxCDF ...... 0.1 XI. Statutory and Executive Order Reviews 1,2,3,6,7,8-HxCDF ...... 0.1 form. Publicly available docket materials are available either A. Executive Order 12866: Regulatory 1,2,3,7,8,9-HxCDF ...... 0.1 Planning and Review and Executive 2,3,4,6,7,8-HxCDF ...... 0.1 electronically in the docket or in hard Order 13563: Improving Regulations and 1,2,3,4,6,7,8-HpCDF ...... 0.01 copy at the EPA Docket Center, EPA Regulatory Review 1,2,3,4,7,8,9-HpCDF ...... 0.01 WJC West Building, Room 3334, 1301 B. Executive Order 13771: Reducing OCDF ...... 0.001 Constitution Avenue NW, Washington, Regulations and Controlling Regulatory Costs [FR Doc. 2018–15718 Filed 7–24–18; 8:45 am] DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday C. Paperwork Reduction Act (PRA) BILLING CODE 6560–50–P through Friday, excluding legal D. Regulatory Flexibility Act (RFA) holidays. The telephone number for the E. Unfunded Mandates Reform Act Public Reading Room is (202) 566–1744, (UMRA) ENVIRONMENTAL PROTECTION F. Executive Order 13132: Federalism AGENCY and the telephone number for the Office G. Executive Order 13175: Consultation of Air and Radiation Docket and and Coordination With Indian Tribal 40 CFR Part 81 Information Center is (202) 566–1742. Governments In addition, the EPA has established H. Executive Order 13045: Protection of [EPA–HQ–OAR–2017–0548; FRL–9981–17– a website for rulemakings for the initial Children From Environmental Health OAR] area designations for the 2015 ozone and Safety Risks RIN 2060–AU13 NAAQS at https://www.epa.gov/ozone- I. Executive Order 13211: Actions That designations. The website includes the Significantly Affect Energy Supply, Additional Air Quality Designations for EPA’s final designations, as well as Distribution or Use the 2015 Ozone National Ambient Air J. National Technology Transfer and designation recommendation letters Advancement Act (NTTAA) Quality Standards—San Antonio, from states and tribes, the EPA’s 120- Texas Area K. Executive Order 12898: Federal Actions letters notifying the states whether the To Address Environmental Justice in AGENCY: Environmental Protection EPA intends to modify the state’s Minority Populations and Low-Income Agency (EPA). recommendation, technical support Populations L. Congressional Review Act (CRA) ACTION: Final rule. documents, responses to comments and other related technical information. M. Judicial Review SUMMARY: The Environmental Protection The public may also inspect this rule I. Preamble Glossary of Terms and Agency (EPA) is establishing initial air and state-specific technical support Acronyms quality designations for the eight information in hard copy at EPA Region counties in the San Antonio-New 6, 1445 Ross Avenue, Suite 700, Dallas, The following are abbreviations of Braunfels, Texas Core Based Statistical Texas 75202–2733. terms used in the preamble. Area (CBSA) for the 2015 primary and FOR FURTHER INFORMATION CONTACT: APA Administrative Procedure Act secondary national ambient air quality Denise Scott, Office of Air Quality CAA Clean Air Act standards (NAAQS) for ozone. The EPA Planning and Standards, U.S. CFR Code of Federal Regulations is designating Bexar County as the San Environmental Protection Agency, Mail CBSA Core Based Statistical Area Antonio, Texas nonattainment area and DC District of Columbia Code C539–01, Research Triangle Park, EPA Environmental Protection Agency the remaining seven counties as NC 27711, phone number (919) 541– FR Federal Register attainment/unclassifiable areas. The San 4280, email: [email protected] or NAAQS National Ambient Air Quality Antonio, Texas nonattainment area is Carrie Paige, U.S. Environmental Standards also being classified as Marginal by Protection Agency, Region 6, Mail Code: NOX Nitrogen Oxides operation of law according to the 6MM–AB, 445 Ross Avenue, Dallas, TX NTTAA National Technology Transfer and severity of its air quality problem. Of the 75202, telephone (214) 665–6521, email: Advancement Act five classification categories, Marginal [email protected]. PPM Parts per million RFA Regulatory Flexibility Act nonattainment areas have ozone levels SUPPLEMENTARY INFORMATION: that are closest to the ozone NAAQS at UMRA Unfunded Mandate Reform Act of Table of Contents 1995 the time of designation. This action TAR Tribal Authority Rule completes the initial designations for The following is an outline of the U.S. United States the 2015 ozone NAAQS. The EPA preamble. U.S.C. United States Code designated all other areas of the country I. Preamble Glossary of Terms and Acronyms VOC Volatile Organic Compounds

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II. What is the purpose of this action? future ozone trends and the role of to the public welfare, including those The purpose of this action is to international transport may provide an related to impacts on sensitive announce and promulgate initial area avenue to help the state demonstrate vegetation and forested ecosystems. this area attains the 2015 ozone NAAQS designations for the eight counties in V. What are the CAA requirements for by the attainment date or is otherwise the San Antonio-New Braunfels, Texas air quality designations? entitled to regulatory relief. CBSA with respect to the 2015 primary When the EPA promulgates a new or and secondary NAAQS for ozone, in III. What is ozone and how is it formed? revised NAAQS, the EPA is required to accordance with the requirements of Ground-level ozone is a gas that is designate all areas in the country as Clean Air Act (CAA) section 107(d). The formed by the reaction of volatile nonattainment, attainment or EPA is designating Bexar County as the organic compounds (VOCs) and oxides unclassifiable, pursuant to section San Antonio, Texas nonattainment area of nitrogen (NO ) in the atmosphere in 107(d)(1) of the CAA. Section and the remaining seven counties as X the presence of sunlight. These 107(d)(1)(A)(i) of the CAA defines a attainment/unclassifiable areas. With precursor emissions are emitted by nonattainment area as, ‘‘any area that this designation action, the EPA has many types of pollution sources, does not meet (or that contributes to completed the initial designations for all including power plants and industrial ambient air quality in a nearby area that areas of the country for the 2015 ozone emissions sources, on-road and off-road does not meet) the national primary or NAAQS. secondary ambient air quality standard In addition, this action announces the motor vehicles and engines and smaller sources, collectively referred to as area for the pollutant.’’ If an area meets classification for the San Antonio, Texas either prong of this definition, states nonattainment area as Marginal. The sources. Ozone is predominately a summertime air pollutant. However, should recommend and the EPA is classification occurs by operation of law obligated to designate the area as at the time of designation based on the high ozone concentrations have also been observed in cold months, where a ‘‘nonattainment.’’ CAA section severity of the area’s ozone air quality 107(d)(1)(A)(ii) defines an attainment problem. The classification categories few areas in the western United States (U.S.) have experienced high levels of area as any area that does not meet the are Marginal, Moderate, Serious, Severe definition of nonattainment and that and Extreme. The EPA established the local VOC and NOX emissions that have formed ozone when snow is on the meets the NAAQS. CAA section air quality thresholds that define the 107(d)(1)(A)(iii) provides that any area classifications in a separate rule titled, ground and temperatures are near or below freezing. Ozone and ozone that the EPA cannot designate on the ‘‘Implementation of the 2015 National basis of available information as Ambient Air Quality Standards for precursors can be transported to an area from sources in nearby areas or from meeting or not meeting the standards Ozone: Nonattainment Area should be designated as Classifications Approach’’ sources located hundreds of miles away. For purposes of determining ozone ‘‘unclassifiable.’’ Historically for ozone, (Classifications Rule) (83 FR 10376; the EPA has designated most areas that March 9, 2018). nonattainment area boundaries, the CAA requires the EPA to include areas do not meet the definition of The list of the areas being designated nonattainment as ‘‘unclassifiable/ in this action appears in the regulatory that contribute to nearby violations of the NAAQS. attainment.’’ This category includes table for Texas included at the end of areas that have air quality monitoring this final rule. This table, which will IV. What are the 2015 ozone NAAQS data meeting the NAAQS and areas that amend 40 CFR part 81, identifies the and the health and welfare concerns do not have monitors but for which the designation for each area and the they address? EPA has no evidence that the areas may classification for the nonattainment On October 1, 2015, the EPA revised be violating the NAAQS or contributing area. both the primary and secondary NAAQS to a nearby violation. In the The EPA is basing the designations on for ozone to a level of 0.070 parts per designations for the 2015 ozone the most recent 3 years of certified million (ppm) (annual fourth-highest NAAQS, the EPA has reversed the order ozone air quality monitoring data daily maximum 8-hour average of the label to be attainment/ (2015–2017) and on an evaluation of concentration, averaged over 3 years).1 unclassifiable to better convey the factors to assess contributions to The level of both the primary and definition of the designation category nonattainment in nearby areas. State secondary ozone NAAQS previously set and so that the category is more easily areas designated as nonattainment are in 2008 is 0.075 ppm. The 2015 ozone distinguished from the separate subject to planning and emission NAAQS retain the same general form unclassifiable category. In a few reduction requirements as specified in and averaging time as the 2008 ozone instances, based on circumstances CAA part D. Requirements vary NAAQS. where some monitoring data are according to an area’s classification. On The primary ozone standards provide available but are not sufficient for a November 17, 2016, the EPA proposed protection for children, older adults, determination that an area is or is not an implementation rule for the 2015 people with asthma or other lung attaining the NAAQS, the EPA has ozone NAAQS (81 FR 81276). The EPA diseases and other at-risk populations designated an area as ‘‘unclassifiable.’’ anticipates issuing the final against an array of adverse health effects Section 107(d)(1)(B) of the CAA implementation rule in 2018. This final that include reduced lung function, requires the EPA to issue initial area implementation rule, along with increased respiratory symptoms and designations within 2 years of additional forthcoming tools and pulmonary inflammation; effects that promulgating a new or revised NAAQS. guidance documents related to contribute to emergency department However, if the Administrator has provisions for regulatory relief to visits or hospital admissions; and insufficient information to make these address background and international mortality. The secondary ozone designations within that time frame, the ozone concentrations, should help standards protect against adverse effects EPA has the authority to extend the nonattainment areas to address these deadline for designation decisions by up emissions in state plans. In particular, 1 See 80 FR 65296; October 26, 2015, for a to 1 additional year. the EPA recognizes that the information detailed explanation of the calculation of the 3-year By not later than 1 year after the provided by Texas regarding likely 8-hour average and 40 CFR part 50, Appendix U. promulgation of a new or revised

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NAAQS, each state governor is required generally are not subject to the same with the EPA’s Tribal Designation to recommend air quality designations, submission schedules imposed by the Guidance, the EPA designated two areas including the appropriate boundaries CAA on states. As authorized by the of Indian country as separate areas. for areas, to the EPA. (See CAA section TAR, tribes may seek eligibility to On December 4, 2017, a coalition of 107(d)(1)(A).) The EPA reviews those submit designation recommendations to environmental and health organizations state recommendations and is the EPA. filed suit against the EPA claiming that authorized to make any modifications VI. What is the chronology for this the EPA failed to meet its mandatory the Administrator deems necessary. The designations rule and what guidance obligation to designate all areas of the statute does not define the term did the EPA provide? U.S. for the 2015 ozone NAAQS by ‘‘necessary,’’ but the EPA interprets this October 1, 2017. American Lung to authorize the Administrator to On February 25, 2016, the EPA issued Association, et al v. Pruitt (N.D. Cal. No. modify designation recommendations guidance for states and tribal agencies to 4:17–cv–06900). A coalition of 15 states that are inconsistent with the statutory use for purposes of making designation also filed a similar suit on December 5, language, including modification of recommendations as required by CAA 2017. State of California v. Pruitt (N.D. recommended boundaries for section 107(d)(1)(A). (See February 25, Cal. No. 4:17–cv–06936). In a March 12, nonattainment areas that are not 2016, memorandum from Janet G. 2018, order, the court granted the supported by the facts or analysis. If the McCabe, Acting Assistant motions in part and ordered the EPA ‘‘to EPA intends to modify a state’s Administrator, to Regional promulgate final designations for all recommendation, section 107(d)(1)(B) of Administrators, Regions 1–10, titled, areas of the country except for the eight the CAA requires the EPA to notify the ‘‘Area Designations for the 2015 Ozone undesignated counties composing the state of any such intended modifications National Ambient Air Quality San Antonio area no later than April 30, not less than 120 days prior to the EPA’s Standards’’ (Designations Guidance)). 2018’’ and ‘‘to promulgate final promulgation of the final designation. The Designations Guidance provided designations for the San Antonio area These notifications are commonly the anticipated timeline for designations no later than 127 days from the date of known as the ‘‘120-day letters.’’ If the and identified important factors that the this order.’’ Thus, the designation state does not agree with the EPA’s EPA recommended states and tribes deadline for the San Antonio area was intended modification, the 120-day consider in making their set to July 17, 2018. period provides an opportunity for the recommendations and that the EPA On March 19, 2018, the EPA sent a state to demonstrate to the EPA why it intended to consider in promulgating 120-day letter to the Governor of Texas believes any modification proposed by designations. These factors include air notifying the state of the EPA’s the EPA is inappropriate. If a state fails quality data, emissions and emissions- preliminary response to the state’s to provide any recommendation for an related data, meteorological data, recommendations for the eight counties area, in whole or in part, the EPA must geography/topography and in the San Antonio-New Braunfels, promulgate a designation that the jurisdictional boundaries. In the Texas CBSA. The EPA requested that Administrator deems appropriate. Designations Guidance, the EPA asked Texas submit by May 11, 2018, any The terms ‘‘contributes to’’ and that states and tribes submit their additional information the state wanted ‘‘nearby’’ in the definition of a designation recommendations, the EPA to consider in making final nonattainment area are not defined in including appropriate area boundaries, designation decisions for the area. 3 the statute and the EPA has discretion to the EPA by October 1, 2016. In the Although not required by section to interpret these ambiguous terms, guidance, the EPA indicated the agency 107(d)(2)(B) of the CAA, the EPA also based on considerations such as the expected to complete the initial provided a 30-day public comment nature of a specific pollutant, the types designations for the 2015 ozone NAAQS period specific to this area (83 FR of sources that may contribute to on a 2-year schedule, by October 1, 13719; March 30, 2018). The comment violations, the form of the relevant 2017, consistent with CAA period closed on April 30, 2018. NAAQS and any other relevant 107(d)(1)(B)(i). On April 30, 2018, the EPA information. The EPA does not interpret On November 6, 2017, the EPA designated all remaining undesignated the statute to require the agency to designated about 85 percent of the areas except the eight counties in the establish bright line tests or thresholds counties in the U.S., including tribal San Antonio area (83 FR 25776; June 4, for what constitutes ‘‘contribution’’ or 4 lands within those counties. Consistent 2018). ‘‘nearby’’ for purposes of designations.2 This action designating the eight Section 301(d) of the CAA authorizes 3 The EPA previously issued two guidance counties in the San Antonio area the EPA to approve eligible Indian tribes memoranda related to designating areas of Indian completes the initial designations for to implement provisions of the CAA on country that also apply for designations for the 2015 ozone NAAQS. (See December 20, 2011, the 2015 ozone NAAQS. The ADDRESSES Indian reservations and other areas memorandum from Stephen D. Page, Director, section earlier in this preamble provides within the tribes’ jurisdiction. The Office of Air Quality Planning and Standards, to Tribal Authority Rule (TAR) (40 CFR Regional Air Directors, Regions I–X, titled, ‘‘Policy detail on where to find the information part 49), which implements section for Establishing Separate Air Quality Designations supporting this designation action and for Areas of Indian Country’’ and December 20, the prior two actions. 301(d) of the CAA, sets forth the criteria 2011, memorandum from Stephen D. Page, Director, and process for tribes to apply to the Office of Air Quality Planning and Standards, to VII. What air quality data has the EPA EPA for eligibility to administer CAA Regional Air Directors, Regions I–X, titled, used to designate the counties in the programs. The designations process ‘‘Guidance to Regions for Working with Tribes during the National Ambient Air Quality Standards San Antonio-New Braunfels, Texas contained in section 107(d) of the CAA (NAAQS) Designations Process.’’) CBSA for the 2015 ozone NAAQS? is included among those provisions 4 Although the EPA commonly uses the term The final ozone designations for the determined to be appropriate by the ‘‘counties’’ when speaking of designations, we note counties in the San Antonio-New EPA for treatment of tribes in the same that the reference to ‘‘counties’’ also includes non- county administrative or statistical areas that are manner as states. Under the TAR, tribes comparable to counties. For example, Louisiana Nevada are equivalent to counties for parishes; the organized boroughs of Alaska; the administrative purposes. In addition, Alaska’s 2 This view was confirmed in Catawba County v. District of Columbia and the independent cities of Unorganized Borough is divided into 10 census EPA, 571 F.3d 20 (D.C. Cir. 2009). the states of Virginia, Maryland, Missouri and areas that are statistically equivalent to counties.

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Braunfels, Texas CBSA are based on air monitors for the 2015–2017 period are The five classification categories are quality monitoring data from the 3 most the same monitors that showed Marginal, Moderate, Serious, Severe and recent years of certified data, which are violations for the 2014–2016 period. Extreme. Nonattainment areas with a 2015–2017. Under 40 CFR 58.16, states VIII. What are the ozone air quality ‘‘lower’’ classification have ozone levels are required to report all monitored classifications? that are closer to the standard than areas ozone air quality data and associated with a ‘‘higher’’ classification. Areas in quality assurance data within 90 days In accordance with CAA section the lower classification levels have 181(a)(1), each area designated as after the end of each quarterly reporting fewer and/or less stringent mandatory nonattainment for the ozone NAAQS is period, and under 40 CFR part air quality planning and control 58.15(a)(2) states are required to submit classified by operation of law at the requirements than those in higher annual summary reports and a data same time as the area is designated by classifications. On March 9, 2018 (83 FR certification letter to the EPA by May 1 the EPA. Under subpart D of title I of the for ozone air quality data collected in CAA, state planning and emissions 10376), the EPA published the the previous calendar year. On March control requirements for ozone are Classifications Rule that establishes the 19, 2018, when the EPA notified Texas determined, in part, by a nonattainment ozone level threshold for each of the EPA’s intended designations for area’s classification. The ozone classification for the 2015 ozone the San Antonio area, the most recent nonattainment areas are classified based NAAQS. Each nonattainment area’s certification obligation was for air on the severity of their ozone levels (as design value, based on the most recent quality data from 2016. On May 1, 2018, determined based on the area’s ‘‘design 3 years of certified air quality Texas submitted certified air quality value,’’ which represents air quality in monitoring data, is used to establish the monitoring data for 2017. The violating the area for the most recent 3 years).5 classification for the area. See Table 1.

TABLE 1—CLASSIFICATION THRESHOLDS FOR THE 2015 OZONE NAAQS (0.070 ppm)

8-Hour ozone Nonattainment area classification design value (ppm) a

Marginal ...... from ...... 0.071 up to b ...... 0.081 Moderate ...... from ...... 0.081 up to b ...... 0.093 Serious ...... from ...... 0.093 up to b ...... 0.105 Severe-15 ...... from ...... 0.105 up to b ...... 0.111 Severe-17 ...... from ...... 0.111 up to b ...... 0.163 Extreme ...... equal to or above ...... 0.163 a parts per million. b but not including.

The most recent 3 years of certified air the EPA Docket Center listed above in justice concerns by ensuring that the quality monitoring data for Bexar the addresses section of this document, public is properly informed about the County, Texas are from the period and on the EPA’s ozone designation air quality in an area. In locations where 2015–2017. The ozone design value is website at https://www.epa.gov/ozone- air quality does not meet the NAAQS, 0.074 ppm. Therefore, in accordance designations. State-specific information the CAA requires relevant state with Table 1 above, the San Antonio, is also available from the EPA Region 6 authorities to initiate appropriate air Texas nonattainment area is classified office at the address at the beginning of quality management actions to ensure by operation of law as a Marginal area this Preamble. that all those residing, working, for the 2015 ozone NAAQS. The X. Environmental Justice Concerns attending school or otherwise present in regulatory table for Texas included at those areas are protected, regardless of the end of this action provides the When the EPA establishes a new or minority and economic status. classification for the nonattainment revised NAAQS, the CAA requires the area. EPA to designate all areas of the U.S. as XI. Statutory and Executive Order either nonattainment, attainment or Reviews IX. Where can I find information unclassifiable. This final action forming the basis for this rule and A. Executive Order 12866: Regulatory addresses designation determinations Planning and Review and Executive exchanges between the EPA and the for eight counties in Texas for the 2015 state? Order 13563: Improving Regulation and ozone NAAQS. Seven counties are being Regulatory Review Information providing the basis for designated as attainment/unclassifiable this action is provided in the docket for and one county is being designated as This action is exempt from review by this rulemaking. The applicable EPA nonattainment. In addition, the the Office of Management and Budget guidance memoranda and copies of nonattainment area is being classified as because it responds to the CAA correspondence regarding this process Marginal according to the severity of its requirement to promulgate air quality between the EPA and the state and other ozone air quality problem. Area designations after promulgation of a parties are also available for review at designations address environmental new or revised NAAQS.

5 The air quality design value for the 8-hour 4th highest daily maximum 8-hour average ozone ozone NAAQS is the 3-year average of the annual concentration. See 40 CFR part 50, Appendix U.

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B. Executive Order 13771: Reducing G. Executive Order 13175: Consultation M. Judicial Review Regulations and Controlling Regulatory and Coordination With Indian Tribal Under section 307(b)(1) of the Act, Costs Governments petitions for judicial review of this This action does not have tribal This action is not an Executive Order action must be filed in the U.S. Court of implications. It will neither impose 13771 regulatory action because actions Appeals for the appropriate circuit by substantial direct compliance costs on such as air quality designations after September 24, 2018. Under section federally recognized tribal governments, promulgating a new revised NAAQS are 307(b)(2) of the Act, the requirements of nor preempt tribal law. There are no exempt from review under Executive this final action may not be challenged tribes affected by this action. Order 12866. later in civil or criminal proceedings for H. Executive Order 13045: Protection of enforcement. C. Paperwork Reduction Act (PRA) Children From Environmental Health List of Subjects in 40 CFR Part 81 This action does not impose an and Safety Risks Environmental protection, Air information collection burden under the The EPA interprets Executive Order pollution control, National parks, PRA. This action fulfills the non- 13045 as applying to those regulatory Wilderness areas. discretionary duty for the EPA to actions that concern environmental promulgate air quality designations after health or safety risks that the EPA has Dated: July 17, 2018. promulgation of a new or revised reason to believe may Andrew R. Wheeler, NAAQS and does not contain any disproportionately affect children, per Acting Administrator. information collection activities. the definition of ‘‘covered regulatory action’’ in section 2–202 of the For the reasons set forth in the D. Regulatory Flexibility Act (RFA) Executive Order. This action is not preamble, 40 CFR part 81 is amended as subject to Executive Order 13045 follows: This designation action under CAA because it does not establish an PART 81—DESIGNATIONS OF AREAS section 107(d) is not subject to the RFA. environmental standard intended to FOR AIR QUALITY PLANNING The RFA applies only to rules subject to mitigate health or safety risks. notice-and-comment rulemaking PURPOSES requirements under the Administrative I. Executive Order 13211: Actions That Procedure Act (APA), 5 U.S.C. 553, or Significantly Affect Energy Supply, ■ 1. The authority citation for part 81 any other statute. Section 107(d)(2)(B) of Distribution or Use continues to read as follows: the CAA explicitly provides that This action is not subject to Executive Authority: 42 U.S.C. 7401, et seq. designations are exempt from the Order 13211 because it is not a notice-and-comment provisions of the significant regulatory action under Subpart C—Section 107 Attainment APA. In addition, designations under Executive Order 12866. Status Designations CAA section 107(d) are not among the list of actions that are subject to the J. National Technology Transfer and ■ 2. In § 81.344, the table titled notice-and-comment rulemaking Advancement Act (NTTAA) ‘‘Texas—2015 8-Hour Ozone NAAQS requirements of CAA section 307(d). This rulemaking does not involve (Primary and Secondary)’’ is amended technical standards. by: E. Unfunded Mandates Reform Act ■ (UMRA) K. Executive Order 12898: Federal a. Adding an entry for San Antonio, Actions To Address Environmental TX before the entry for Rest of State; This action does not contain any Justice in Minority Populations and ■ b. Adding an entry for Atascosa unfunded mandate as described in Low-Income Populations County before the entry for Austin UMRA, 2 U.S.C. 1531–1538 and does The EPA believes that this action does County; not significantly or uniquely affect small not have disproportionately high and ■ c. Adding an entry for Bandera governments. The action imposes no adverse human health or environmental County before the entry for Bastrop enforceable duty on any state, local or effects on minority populations, low- County; tribal governments or the private sector. income populations and/or indigenous ■ d. Adding an entry for Comal County F. Executive Order 13132: Federalism peoples, as specified in Executive Order before the entry for Comanche County; 12898 (59 FR 7629, February 16, 1994). ■ e. Adding an entry for Guadalupe This action does not have federalism The documentation for this County before the entry for Hale County; implications. It will not have substantial determination is contained in Section X ■ f. Adding an entry for Kendall County direct effects on the states, on the of this preamble, ‘‘Environmental before the entry for Kenedy County; relationship between the national Justice Concerns.’’ government and the states or on the ■ g. Adding an entry for Medina County distribution of power and L. Congressional Review Act (CRA) before the entry for Menard County; and responsibilities among the various This action is subject to the CRA, and ■ h. Adding an entry for Wilson County levels of government. The division of the EPA will submit a rule report to before the entry for Winkler County. responsibility between the federal each House of the Congress and to the The additions read as follows: government and the states for purposes Comptroller General of the U.S. This of implementing the NAAQS is action is not a ‘‘major rule’’ as defined § 81.344 Texas. established under the CAA. by 5 U.S.C. 804(2). * * * * *

VerDate Sep<11>2014 16:20 Jul 24, 2018 Jkt 244001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\25JYR1.SGM 25JYR1 daltland on DSKBBV9HB2PROD with RULES Case: 18-60606 Document: 00514619867 Page: 9 Date Filed: 08/28/2018

Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Rules and Regulations 35141

TEXAS—2015 8-HOUR OZONE NAAQS [Primary and Secondary]

Designation Classification Designated area 1 Date 2 Type Date 2 Type

******* San Antonio, TX ...... 9/24/2018 Nonattainment .. 9/24/2018 Marginal. Bexar County.

******* Rest of State:

******* Atascosa County ...... 9/24/2018 Attainment/ Unclassifiable.

******* Bandera County ...... 9/24/2018 Attainment/ Unclassifiable.

******* Comal County ...... 9/24/2018 Attainment/ Unclassifiable.

******* Guadalupe County ...... 9/24/2018 Attainment/ Unclassifiable.

******* Kendall County ...... 9/24/2018 Attainment/ Unclassifiable.

******* Medina County ...... 9/24/2018 Attainment/ Unclassifiable.

******* Wilson County ...... 9/24/2018 Attainment/ Unclassifiable.

******* 1 Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the boundaries of any area of Indian country in this table, including any area of Indian country located in the larger designation area. The inclusion of any Indian country in the designation area is not a determination that the state has regulatory authority under the Clean Air Act for such Indian country. 2 This date is August 3, 2018, unless otherwise noted.

[FR Doc. 2018–15919 Filed 7–24–18; 8:45 am] DATES: This regulation is effective July Public Reading Room is (202) 566–1744, BILLING CODE 6560–50–P 25, 2018. Objections and requests for and the telephone number for the OPP hearings must be received on or before Docket is (703) 305–5805. Please review September 24, 2018, and must be filed the visitor instructions and additional ENVIRONMENTAL PROTECTION in accordance with the instructions information about the docket available AGENCY provided in 40 CFR part 178 (see also at http://www.epa.gov/dockets. Unit I.C. of the SUPPLEMENTARY FOR FURTHER INFORMATION CONTACT: 40 CFR Part 180 INFORMATION). Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, [EPA–HQ–OPP–2017–0226; FRL–9979–81] ADDRESSES: The docket for this action, Environmental Protection Agency, 1200 identified by docket identification (ID) Florasulam; Pesticide Tolerances Pennsylvania Ave. NW, Washington, DC number EPA–HQ–OPP–2017–0226, is 20460–0001; main telephone number: AGENCY: available at http://www.regulations.gov Environmental Protection (703) 305–7090; email address: or at the Office of Pesticide Programs Agency (EPA). [email protected]. ACTION: Final rule. Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency SUPPLEMENTARY INFORMATION: SUMMARY: This regulation establishes Docket Center (EPA/DC), West William I. General Information tolerances for residues of florasulam in Jefferson Clinton Bldg., Rm. 3334, 1301 or on teff forage, teff grain, teff hay, and Constitution Ave. NW, Washington, DC A. Does this action apply to me? teff straw. Interregional Research Project 20460–0001. The Public Reading Room You may be potentially affected by Number 4 (IR–4) requested these is open from 8:30 a.m. to 4:30 p.m., this action if you are an agricultural tolerances under the Federal Food, Monday through Friday, excluding legal producer, food manufacturer, or Drug, and Cosmetic Act (FFDCA). holidays. The telephone number for the pesticide manufacturer. The following

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