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Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Proposed Rules
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EPA does not interpret the statute as allowing the EPA to consider future air quality in the initial designations process, and the D.C. Circuit has upheld this interpretation as reasonable.8 The record for the Round 2 Supplement explains, and the EPA maintains, that both air quality modeling and ambient monitoring are appropriate tools for characterizing ambient air quality for purposes of informing decisions to implement the SO2 NAAQS, including designation determinations.9 The EPAs reliance on modeling to assess SO2 air quality, even in the face of conflicting monitoring, where appropriate, has been judicially affirmed. See, e.g., Montana Sulphur & Chemical Company v. EPA, 666 F.3d 1174, 1185 9th Cir. 2012.
In the Round 2 Supplement for these three areas, the EPA considered Texass recommendations but appropriately modified the recommendations, per CAA section 107d1B2, because they were not supported by currently available information. Specifically, the EPAs assessment of Sierra Clubs modeling was that currently available information showed violations of the 2010 SO2 NAAQS. At the time of the EPAs final nonattainment designations for portions of Freestone and Anderson Counties, Rusk and Panola Counties, and Titus County, although Texas preferred that the EPA designate the areas based on proposed future monitoring data rather than on existing submitted modeling, there were no representative monitoring data 10 or other reliable modeling demonstrations available to refute Sierra Clubs information demonstrating violations of the 2010 SO2 NAAQS, as explained in 8 See Miss. Commn on Envtl. Quality v. EPA, 790
F.3d 138, 156 D.C. Cir. 2015; Catawba County v.
EPA, 571 F.3d 20, 4344 D.C. Cir. 2009. The 2015
decision upheld the EPAs designations issued just days before new certified air quality data became available showing more areas violating the 2008
ozone NAAQS than the EPA designated as nonattainment. See also State of Texas v. EPA, 983
F.3d 826, 837838 5th Cir. 2020 holding that the EPAs nonattainment designation, which modified the states recommendation, was not arbitrary and capricious because the county was not compliant with the ozone NAAQS when the EPA promulgated its designation and the CAA uses concrete terms such that a county either does or does not meet the NAAQS.
9 Round 2 Supplement Reponses to Comments, Page 13. Available in the public docket and at https www.epa.gov/sites/production/files/201611/documents/rtc_so2_comments_received_
document_4_tx_sources_final_0.pdf.
10 As explained in the EPAs intended and final designations TSDs and the responses to comments document that accompanied the Round 2
Supplement, at the time of the EPAs final designations on December 13, 2016, there were no SO2 monitors sited in the areas of maximum concentration to properly characterize the air quality around the Martin Lake, Big Brown, or Monticello areas, nor were there SO2 monitors in the same counties as the facilities.

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the EPAs final designations TSD.11 The absence of available monitoring data at that time did not relieve the EPA of its obligation to issue designations for these areas by the court-ordered deadline.
Furthermore, at the time of the final designations, the Agency did not have the discretion to await the results of 3
years of ambient air monitoring data i.e., 20182020 from Texass proposed but not yet established monitoring sites before taking final action due to the courts order to designate certain areas in Texas. There was, however, as explained previously and in the EPAs final designations TSD, valid modeling submitted by the Sierra Club based on the then-most recent actual emissions demonstrating that the areas were violating the 2010 SO2 NAAQS. As explained earlier, the EPA no longer believes there were errors in our Round 2 Supplements analysis that Sierra Club submitted valid, representative modeling based on the then-most recent actual SO2 emissions that demonstrated that the areas were violating the 2010 SO2 NAAQS, or that further refining the modeling would result in modeled values near or below the standard. Therefore, even though the EPA considered Texass preference for monitoring, given that the statute requires that the EPA consider available information, Texass preference for reliance on monitoring information when there were no such monitoring data available at the time of the EPAs final designations in December 2016 did not and could not rebut Sierra Clubs modeling showing violations of the 2010 SO2 NAAQS.12
III. Purpose of This Action In the 2019 Proposed Error Correction, the EPA proposed that our relying on the Sierra Club modeling along with our not giving greater weight to Texas preference for monitoring, represented an insufficient basis for the EPAs initial nonattainment designations. For the reasons discussed previously, the EPA no longer believes it has a basis under these reasons individually or collectively to propose to or conclude that we made errors in our nonattainment designations of these areas, and, therefore, no longer believes 11 The EPA received a comment from the Utility Air Regulatory Group on the Round 2 Supplement suggesting that the EPA wait for the future completion of three years of monitoring before designating certain Round 2 areas. In the Round 2
Supplement Responses to Comments page 14, the EPA responded that the Agency does not have the discretion to await the results of future monitoring because of the court order to designate certain areas by the July 2, 2016, deadline.
12 See State of Texas v. EPA, 983 F.3d 826, 836
838 5th Cir. 2020.

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that we have a basis to conclude that the EPA could not determine, based on available information at the time of issuing the designation, whether the three Texas areas that are the subject of this proposed action were meeting or not meeting the 2010 SO2 NAAQS i.e., the conclusion necessary to correct the designations to unclassifiable.
Therefore, the EPA is withdrawing the Proposed Error Correction.
IV. Statutory and Executive Order Reviews This withdrawal of a proposed rule does not establish new regulatory requirements. Hence, the requirements of other regulatory statutes and Executive Orders that generally apply to rulemakings e.g., the Regulatory Flexibility Act do not apply to this action.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Sulfur dioxide.
Michael S. Regan, Administrator.
FR Doc. 202113696 Filed 62821; 8:45 am BILLING CODE 656050P

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 1036 and 1037
EPAHQOAR20190307; FRL1001851
OAR

Improvements for Heavy-Duty Engine and Vehicle Test Procedures Environmental Protection Agency EPA.
ACTION: Notice of proposed rulemaking.
AGENCY:

This notice of proposed rulemaking includes corrections, clarifications, additional flexibilities, and adjustment factors to improve the Greenhouse gas Emissions Model GEM
compliance tool for heavy-duty vehicles while more closely matching the outputs produced by the original GEM
version 3.0 that was used to establish the CO2 standards for Model Years 2021
and later in the 2016 Heavy-duty Phase 2 final rule. This document supplements the proposed rule published on May 12, 2020, which included a larger set of proposed revisions to modify and improve GEM.
Most of the proposed revisions from that notice of proposed rulemaking are addressed in a final rulemaking published elsewhere in the Final Rules section of this issue of the Federal Register. Given the nature of this proposal, there will be neither SUMMARY:

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