Document 2qg0JGoMgw9n7vzKjapk1Zry5

To: Gunasekara, Amanda[gunasekara.amanda@epa.gov] From: Stanko, Joseph Sent: Tue 3/21/2017 2:41:08 PM Subject: TX Request for Admin. Stay of Effective Date for SO2 Designations :equest to EPA for Admin Stay SO2 EPA ltr-c.pdf 17cv1906 Sierra Club v. EPA ED_001523A_00000069-00001 To6ySaker, / Jon Niwaann, iBXSOCim PrqtectirSRixes^ March. 15, W VIA fax: (202)501-1450 Email: Pruitt.scott@epa.gov and Hardcopy The Honorable Scott Pruitt Administrai or ILS. Environment al Protection Agency William Jefferson Clinton Building 1 200 Pennsylvania Avenue, N.W. Washington, D.C. 2O4GO RE: Roqnest for Administrathe Stay, Air Quality Designations for the 2010 Sulfur Dioxide (SO ) Primary National Ambient Air Quality Standard - Supplement to Round 2 for four Areas in Texas: freestone and Anderson Counties, Milam Couniy, Rusk and Panola Counties, and TH us County, 81 led. Req. 8'1,870 (Dec. 13, 2010); Docket No. EPA 110.OAR-2014-0404 Dear Administrator /Pruitt: The Texas Commission on Enxironmenlal Quality (TCEQ) respectfully requests the I'.S. Environmental Protection Agency (EPA) immediately stay the elTectiw date of EPA's final action entitled Air Duality Designations for the 201U Sulfur Dioxide (SO Primary National Ambient .Air Quality Standard - Supplement to Round 2 for four Areas in Texas: freestone and Anderson Counties, Milam County, Rusk and Panola Counties, and Titus County, published in the federal Register on Dec. 13, 201() (final Rule).' The Governor of the State of Texas submitted recommended designations for the 2010 SO MVAQS, as required under section 107 of the federal ('lean Air Act (KAA)/ In all correspondence with EPA o\er a three-year period, Texas consistently recommended EP \ designate as unclassifiable all areas in Texas for which monitored data was not asailable.' . When EPA asked lor additional information from Slates and solicited public comment to inform MSI /W./Q/. 8`WiHDec. 13,2011.) . .. 2 ECAA 107(d)(1)(A), 42 L.S.C. 7407(d)(1)(A) fetter from Governor Rick Perry to Alfredo .Armendariz, Regional Administrator, ILS. ERA Region \ I, June 2, 201 I; fetter from Governor Rick Perry Io .Alfredo Armendariz. Regional Administrator, ILS. EPA Region VI, April 20, 2012; Letter from Executive Director Zak Co\ar to Jennifer Noonan Edmonds, Acting Director, Office of Air Quality Planning and Standard, ILS. EPA, March 18, 2013, Docket No. EPA 11Q-0AR-20124)233 See EC \A 107(d)< 1 )(A); 42 CSC /4O7(d;(l )(A): "...the Governor of each State shall submit to the Administrator a list of all areas or portions thereof) in the Stale designating as . . . (iii) undassiliable, any area that cannot be classified on the basis of available information as meeting or not meeting the |N \AQS| tor the pollutant." BoxigoSy * AustiRioe * mW'AJWMWO. teefl.texas.goy ftow is-QW customer service? fceq;texas,g^ 17cv1906 Sierra Club v. EPA ED_001523A_00000070-00001 The Honorable Scott Pruitt Administrator U.S. Environmental Protection Agency Page 2 March 15,2017 Re: Docket No. EPA-HQ-OAR-2014-0464 their designations of several areas that had yet to be designated (including the three areas subject to the Final Rule), Texas again recommended an unclassifiable designation for any areas where monitored data was not available.5 The Final Rule, departing from years of agency practice, rejects Texas's recommended designations for three areas: Freestone and Anderson Counties, Rusk and Panola Counties, and Titus County where monitored data was unavailable. Instead, EPA, relying on a court entered consent decree and not scientific data nor the state's recommendation,6 designated these areas nonattainment for the SO.. NAAQS based on modeling data.7 Texas believes EPA's designations in the Final Rule were incorrect and contrary to the FCAA and has filed petitions for judicial review in the 5,h Circuit and D.C. Circuit Courts of Appeal." Additionally, Texas and several states challenged entry of the consent decree upon which the Final Rule is based and have appealed the consent decree to the 9'h Circuit Court of Appeals." EPA should immediately grant a stay of the effective date of the Final Rule. Section 705 of the Federal Administrative Procedures Act (APA) grants EPA authority to stay an agency order or final determination pending judicial review of such order or determination if the EPA finds that "justice so requires."10 While FCAA section 307(d) is also authority for EPA to stay the effectiveness of rules, this particular provision of the Act applies when it is reconsidering the rule to be stayed. Texas is not asking EPA to reconsider the Final Rule. Texas is asking for a stay of the effectiveness of the Final Rule under section 705 of the APA pending judicial review of the 9,h Circuit appeal and the petitions for review in the D.C. and 5lh Circuits. A stay under this provision can be granted where, "at a minimum, a rational connection between [al stay and the underlying litigation," must be articulated." Texas and several other states intervened in the litigation that resulted in the consent decree that EPA acknowledges compelled the action taken in the Final Rule. The Federal District Court for the Northern District of California entered the consent decree over the objections of the Intervenor States and is currently on appeal to the 9,h Circuit Court of Appeals. Oral arguments are scheduled for March 16, 2017. Texas and the intervenor states maintain that the consent decree was negotiated and entered without participation of the parties most affected by the designation process and the deadlines and requirements EPA must follow to make designations are beyond what is allowed under the FCAA. EPA should have taken Texas' recommendations that these three areas be designated unclassifiable. Because the Final Rule is based on a consent decree that is contrary to the FCAA, Texas has also filed challenges in the 5,h Circuit and D.C. Circuits on the Final Rule. 5 Letter from Governor Greg Abbott to Janet McCabe, Assistant Administrator, U.S. EPA, September 18, 2015, Docket No. EPA-HQ-OAR-2014-0464; Letter from Executive Director Richard Hyde to EPA Air Docket, March 31, 2016, Docket No. EPA-HQ-OAR-2014-0464. Sierra Club and NRDC v. McCarthy, No. 3:13-cv-3953-SI (N.D. Cal.) 7 81 Fed. Reg. at 89871, "The court order required the EPA Administrator to sign a notice designating areas in a second round that contained sources meeting certain criteria no later than July 2, 2016." " Texas and TCEQ v. U.S. EPA and Catherine McCabe, No. 17-60088, (5,h Cir.); 17-1053 (D.C. Cir.) 9 Sierra Club; NRDC; EPA v. State of North Dakota et al., No. 15-15894 (9,h Cir.) 10 5 U.S.C. 705 " Sierra Clubv. Jackson, 833 F. Supp. 2d 11, 34 (D.D.C. 2012) 17cv1906 Sierra Club v. EPA ED_001523A_00000070-00002 Ihe Honorable Scoti Fruii l Administrator r.S. Environmental Protection Agency Page 3 . c . .. March 15, 2017 Re: Docket No. EPA-IIQ-0AR-2014-0404 The Final Rule begins an 1 -month dock, from the January 12, 201 7 elledhv dale, lor Texas to submit to EPA source-specific attainment demonstration slate implementation plans (Sil's) for the nonatlainmenl areas in Freestone and Anderson Counties, Rusk and Panola Counties, and Titus Couniy. The Texas attainment demonstration SIPs must meet several requirements including: emissions inventories, implementation of all reasonably available control measures (RACM), provide for reasonable further progress, modeling of attainment, enforceable emission limits and contingency measures.1' TCEQ must develop these plans early enough to provide adequate lime to accept and respond to public comments on the proposed SIPs before submilted for commission approval and submittal to EPA for review and approval. Had EPA instead designated these areas as unclassifiable, these FCAA planning requirements would not be triggered. Unless stayed, EPA's actions will unjustifiably force Texas to immediately expend significant staff lime ami resources to meet the SIP submittal deadline; therefore, "justice so requires" EPA stay the effectiveness of the Final Rule (and thus the SIP clock) pending a decision in Ihe federal circuit courts on the legality of the consent decree. Texas must quickly begin to expend precious agency resources on the SIPs, at the expense of other important SIP work. These resources will be wasted if the consent decree is overturned and EPA is directed to re issue designations based on the recommendations from Texas. Thank you for consideration of this request, and please contact me at (512) 233-13 1 7 or John Minier, the attorney on this issue, at (512) 239-O()(i3 if we can provide any further information. Sincerely, Richard A. Hyde. P.E., Executive Director Texas Commission on Environmental Quality cc: Ken'Paxton, Attorney General of Texas 1 FCAA 172(c), 42 r.S.C. 7502(c) 17cv1906 Sierra Club v. EPA ED_001523A_00000070-00003