Determination of Nonattainment and Reclassification of the Beaumont/Port Arthur 8-Hour Ozone Nonattainment Area; State of Texas; Final Rule, 14391-14396 [E8-5403]
Download as PDF
<![CDATA[
Federal Register / Vol. 73, No. 53 / Tuesday, March 18, 2008 / Rules and Regulations
Dated: March 3, 2008.
Bharat Mathur,
Acting Regional Administrator, Region 5.
I
revision request to the following
definitions: 326 IAC 1–1–3, ‘‘References
to the CFR’’; 326 IAC 1–2–48,
‘‘nonphotochemically reactive
hydrocarbons’’ or ‘‘negligibly
photochemically reactive compounds’’
defined; and 326 IAC 1–2–90, ‘‘volatile
organic compound’’ or ‘‘VOC’’ defined.
PART 52—[AMENDED]
[FR Doc. E8–5287 Filed 3–17–08; 8:45 am]
1. The authority citation for part 52
continues to read as follows:
BILLING CODE 6560–50–P
For the reasons stated in the preamble,
part 52, chapter I, of title 40 of the Code
of Federal Regulations is amended as
follows:
I
Authority: 42 U.S.C. 7401 et seq.
ENVIRONMENTAL PROTECTION
AGENCY
Subpart P—Indiana
40 CFR Part 81
2. Section 52.770 is amended by
adding paragraph (c)(186) to read as
follows:
I
§ 52.770
Identification of plan.
*
rwilkins on PROD1PC63 with PROPOSALS
[EPA–R06–OAR–2007–0969; FRL–8543–5]
*
*
*
*
(c) * * *
(186) The Indiana Department of
Environmental Management submitted
revisions to Indiana’s State
Implementation plan on July 20, 2007,
as revised on December 19, 2007, to
amend 326 IAC 1–1–3, ‘‘References to
the Code of Federal Regulations’’; 326
IAC 1–2–48, ‘‘nonphotochemically
reactive hydrocarbons’’ or ‘‘negligibly
photochemically reactive compounds’’
defined; and 326 IAC 1–2–90, ‘‘volatile
organic compound’’ or ‘‘VOC’’ defined.
The revision to 326 IAC 1–1–3 updates
the references to CFR from the 2005
edition to the 2006 edition. In 326 IAC
1–2–48, and 326 IAC 1–2–90, the SIP
revision deletes references to outdated
Federal Register citations.
(i) Incorporation by reference. The
following sections of the Indiana
Administrative Code (IAC) are
incorporated by reference.
(A) 326 IAC 1–1–3, ‘‘References to the
Code of Federal Regulations’’. Filed
with the Secretary of State on April 26,
2007, and effective on May 26, 2007.
Published in the Indiana Register, on
May 23, 2007 (DIN: 20070523–IR–
326060412FRA).
(B) 326 IAC 1–2–48,
‘‘nonphotochemically reactive
hydrocarbons’’ or ‘‘negligibly
photochemically reactive compounds’’
defined; and 326 IAC 1–2–90, ‘‘volatile
organic compound’’ or ‘‘VOC’’ defined.
Filed with the Secretary of State on
April 26, 2007, and effective on May 26,
2007. Published in the Indiana Register,
on May 23, 2007 (DIN: 20070523–IR–
326060412FRA).
(ii) Additional Materials. A December
19, 2007, letter from Daniel Murray,
Assistant Commissioner of the Indiana
Department of Environmental
Management, Office of Air Quality,
which limits the July 20, 2007, SIP
VerDate Aug<31>2005
16:03 Mar 17, 2008
Jkt 214001
Determination of Nonattainment and
Reclassification of the Beaumont/Port
Arthur 8-Hour Ozone Nonattainment
Area; State of Texas; Final Rule
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This rule finalizes EPA’s
finding of nonattainment and
reclassification of the Beaumont/Port
Arthur 8-hour ozone nonattainment area
(BPA area). EPA finds that the BPA area
has failed to attain the 8 hour ozone
national ambient air quality standard
(‘‘NAAQS’’ or ‘‘standard’’) by June 15,
2007, the attainment deadline set forth
in the Clean Air Act (CAA) and Code of
Federal Regulations (CFR) for marginal
nonattainment areas. As a result, on the
effective date of this rule, the BPA area
is reclassified by operation of law as a
moderate 8-hour ozone nonattainment
area. The new moderate area attainment
date for the reclassified BPA area is ‘‘as
expeditiously as practicable,’’ but no
later than June 15, 2010. The State of
Texas must submit a SIP revision that
meets the requirements of the CAA on
or before January 1, 2009.
DATES: This final rule is effective on
April 17, 2008.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R06–OAR–
2007–0969. All documents in the docket
are listed on the https://
www.regulations.gov Web site. Although
listed in the index, some information is
not publicly available, i.e., 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 and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically through https://
SUMMARY:
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
14391
www.regulations.gov or in hard copy at
the Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas
75202–2733. The file will be made
available by appointment for public
inspection in the Region 6 FOIA Review
Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in
the FOR FURTHER INFORMATION CONTACT
paragraph below or Mr. Bill Deese at
214–665–7253 to make an appointment.
If possible, please make the
appointment at least two working days
in advance of your visit. There will be
a 15 cent per page fee for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
FOR FURTHER INFORMATION CONTACT: Carl
Young, Air Planning Section, (6PD–L),
Environmental Protection Agency,
Region 6, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202–2733, telephone
(214) 665–7247; fax number 214–665–
7263; e-mail address
young.carl@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means EPA.
Table of Contents
I. What Is the Background for This Action?
II. What Comments Did EPA Receive on the
October 30, 2007 Proposal and How Has
EPA Responded to Them?
III. What Is the Effect of This Action?
A. Determination of Nonattainment,
Reclassification of the BPA Area To
Moderate and the New Attainment Date
for the BPA Area
B. What Is the Date for Submitting a
Revised SIP for the BPA Area?
IV. Final Action
V. Statutory and Executive Order Reviews
I. What Is the Background for This
Action?
The BPA area was classified as a
marginal 8-hour ozone nonattainment
area and, therefore, was required to
attain the 8-hour ozone standard by June
15, 2007 (69 FR 23858). On October 30,
2007, we proposed to find that the BPA
ozone nonattainment area did not attain
the 8-hour ozone NAAQS by June 15,
2007, the applicable attainment date,
(72 FR 61310). The proposed finding
was based upon ambient air quality data
from the years 2004, 2005, and 2006 that
showed the area’s air quality violated
the standard. In addition, as explained
in the proposed rule, the area did not
qualify for an attainment date extension
under the provisions of section 181(a)(5)
and 40 CFR 51.907, because the area’s
4th highest daily maximum 8-hour
E:\FR\FM\18MRR1.SGM
18MRR1
14392
Federal Register / Vol. 73, No. 53 / Tuesday, March 18, 2008 / Rules and Regulations
rwilkins on PROD1PC63 with PROPOSALS
average ozone value in the attainment
year of 2006 was greater than 0.084
parts per million (ppm). In the October
30, 2007, proposal, we also proposed
that the appropriate reclassification of
the BPA area would be from ‘‘marginal’’
to ‘‘moderate’’ nonattainment, in
accordance with CAA Section 181(b)(2).
We further proposed that the State of
Texas submit the required SIP revision
by January 1, 2009.
II. What Comments Did EPA Receive on
the October 30, 2007 Proposal and How
Has EPA Responded to Them?
We received 18 comment letters on
our proposal to find the BPA ozone
nonattainment area failed to attain the
8-hour ozone NAAQS by June 15, 2007
and to reclassify the area from marginal
to moderate and on our proposed
schedule for the required SIP revision
submittal (72 FR 61310). Comments
were received from: Beaumont City
Council Member; ChevronPhillips
Chemical Company’s Orange Plant;
ChevronPhillips Chemical Company’s
Port Arthur Plant; Clean Air and Water,
Inc.; Entergy Texas; Gerdau Ameristeel
Beaumont; Goodyear Tire and Rubber
Company; Greater Port Arthur Texas
Chamber of Commerce; Hardin County
Commissioner’s Court; Huntsman
Petrochemical Corporation; Jefferson
County Commissioner for Precinct 1;
Jefferson County Commissioner for
Precinct 4; Jefferson County Judge;
LANXESS Corporation; Port Arthur City
Manager; Southeast Texas Chapter of
Texas Association of Business; South
East Texas Regional Planning
Commission; and the Texas
Commissions on Environmental Quality
(TCEQ).
Comments can be found on the
Internet in the electronic docket for this
action. To access the comments, please
go to https://www.regulations.gov and
search for Docket No. EPA–R06–OAR–
2007–0969, or contact the person listed
in the FOR FURTHER INFORMATION
CONTACT paragraph above. A summary
of the relevant comments and EPA’s
response to the comments received is
presented below.
Comment: Sixteen of the commenters
requested that EPA postpone finalizing
the reclassification because current
monitoring data are showing attainment
and requested that EPA instead allow
the area the opportunity to file for
redesignation to attainment for the 8hour ozone standard. To support their
request for EPA to not finalize the
reclassification, many discussed the
status of the air quality in the BPA area,
noting that it is much cleaner today than
it was in 1990 at the time the CAA
amendments were finalized: (1)
VerDate Aug<31>2005
16:03 Mar 17, 2008
Jkt 214001
Monitored levels of nitrogen oxides and
volatile organic compounds are at least
40–50% lower than 10 years ago, (2)
major reductions in monitored air toxic
levels continue and after 17 years of
monitoring, there is no evidence of air
toxic hot spots, (3) ozone has been
improving in the area in both design
value and number of exceedances and
(4) this improvement is due to the
tremendous amount of work done by
local industry, businesses, and
community.
Response: We recognize the efforts
taken by TCEQ, the Southeast Texas
Planning Commission, local industry,
businesses, and the community to
improve air quality. EPA acknowledges
that the area’s air quality data has
improved, but the area did not meet the
8-hour ozone standard by the applicable
June 15, 2007 attainment date. TCEQ,
itself, agreed the BPA area’s air quality
was not below the 8-hour ozone
standard for the years 2004, 2005, and
2006. These three years of air quality
data provide the area’s design value ‘‘as
of the attainment date.’’ This value
shows that the area did not attain the
standard by the applicable attainment
date. The Act requires EPA to make an
attainment determination within six
months following the attainment date.
Reclassification upon a determination of
failure is not a discretionary power and
EPA cannot waive reclassification after
it has determined that the area has
failed to attain by its attainment date.
In our October 30, 2007, proposed
rule (72 FR 61310), we cited section
181(b)(2)(A) of the CAA, which provides
that, for reclassification upon failure to
attain, ‘‘within 6 months following the
applicable attainment date (including
any extension thereof) for an ozone
nonattainment area, the Administrator
shall determine, based on the area’s
design value (as of the attainment date),
whether the area attained the standard
by that date. Except for any Severe or
Extreme area, any area that the
Administrator finds has not attained the
standard by that date shall be
reclassified by operation of law in
accordance with table 1 of subsection (a)
(of Section 181) to the higher of—(i) the
next higher classification for the area, or
(ii) the classification applicable to the
area’s design value as determined at the
time of the notice required under
subparagraph (B).’’ Pursuant to section
181(b)(2), we have determined that the
BPA area failed to attain the 8-hour
ozone NAAQS by June 15, 2007, the
attainment deadline set forth in the
CAA and CFR for marginal
nonattainment areas. Because the area is
not classified as Severe or Extreme, the
area shall be reclassified by operation of
PO 00000
Frm 00022
Fmt 4700
Sfmt 4700
law to the next higher classification.
The next higher classification for the
area (moderate) is higher than the
classification applicable to the area’s
design value (marginal). Therefore, in
accordance with the CAA, the BPA area
must be reclassified by operation of law
to a moderate nonattainment area. 72 FR
61312.
As EPA noted above, under section
181(b)(2)(A), the attainment
determination is made solely based on
air quality, and any reclassification is by
operation of law. Thus, the resulting
requirements apply regardless of how
the nonattainment came about, and the
CAA requires EPA to consider only the
air quality data occurring as of the
attainment date (including any
extension thereof), in making the
mandatory attainment determination.
Today’s action, however, does not
preclude TCEQ from developing and
submitting the appropriate
documentation for redesignation of the
area from nonattainment to attainment.
The appropriate documentation would
be the submittal after public notice,
public comment period, and public
hearing of a complete redesignation
request that meets the requirements of
the Act and the Phase 1 8-hour ozone
implementation rule, and an approvable
plan for maintenance of the 8-hour
ozone standard.1 The September 4, 1992
Calcagni memorandum and the 1993
Shapiro memorandum describe EPA’s
interpretation of section 107(d)(3)(E)
with respect to the timing of applicable
requirements. Under this interpretation,
to qualify for redesignation, States
requesting redesignation to attainment
must meet the relevant Clean Air Act
requirements that came due prior to the
submittal of a complete redesignation
request. Applicable requirements of the
Act that come due subsequent to the
1 For more information on redesignation to
attainment, please see, among other things, the
General Preamble for the Implementation of Title I
of the CAA Amendments of 1990, published on
April 16, 1992 (57 FR 13498), and supplemented on
April 28, 1992 (57 FR 18070); ‘‘Procedures for
Processing Requests to Redesignate Areas to
Attainment,’’ Memorandum from John Calcagni,
Director, Air Quality Management Division,
September 4, 1992 (available at: https://
www.epa.gov/ttn/oarpg/t5/memoranda/
redesignmem090492.pdf); ‘‘State Implementation
Plan (SIP) Requirements for Areas Submitting
Requests for Redesignation to Attainment of the
Ozone and Carbon Monoxide (CO) National
Ambient Air Quality Standards (NAAQS) On or
After November 15, 1992,’’ Memorandum from
Michael H. Shapiro, Acting Assistant Administrator
for Air and Radiation, September 17, 1993
(available at: https://www.epa.gov/ttn/caaa/t1/
memoranda/redesig.pdf); the redesignation of
Detroit-Ann Arbor published ion March 7, 1995 (60
FR 12459, 12465–12466, and EPA’s Final Rule to
Implement the 8-Hour Ozone NAAQS–Phase 1 and
the Notice of Reconsideration at 69 FR 23951 (April
30, 2004) and 70 FR 30592, 30604 (May 26, 2005).
E:\FR\FM\18MRR1.SGM
18MRR1
rwilkins on PROD1PC63 with PROPOSALS
Federal Register / Vol. 73, No. 53 / Tuesday, March 18, 2008 / Rules and Regulations
area’s submittal of a complete
redesignation request remain applicable
until a redesignation is approved, but
are not required as a prerequisite to
redesignation. Section 175A(c) of the
Act. Sierra Club v. EPA, 375 F.3d 537
(7th Cir. 2004). See also, 68 FR at 25424,
25427 (May 12, 2003) (redesignation of
St. Louis).
Comment: One commenter stated that
(1) the area did miss the June 15, 2007
attainment date; (2) action on this
matter should be based on real data, not
speculation of attainment in the near
future; and (3) the area’s petrochemical
industry is currently undergoing
expansions which will result in more air
emissions. Consequently, the
recommendation was that the area be
classified as moderate until attainment
is actually achieved.
Response: EPA agrees with the
commenter supporting the proposal. As
quality-assured data for the area shows
the area did not attain the 8-hour ozone
standard by the June 15, 2007
attainment date, the area is being
reclassified by operation of law as
moderate nonattainment. Regarding the
commenter’s concern about industry
expansions and more air emissions, the
State’s Nonattainment New Source
Review (NNSR) permitting requirements
apply to new major sources or major
modifications at existing air pollution
sources, such as the petrochemical
industry expansions. The NNSR permit
issued by the State must require that the
emissions increase from the new source
or modification be offset. The NNSR
permit also requires the source to
reduce emissions consistent with the
application of lowest achievable
emission rate as defined in 40 CFR
51.165(a)(1)(xiii). The State’s permitting
rules provide that the TCEQ will assure
that emissions from a new minor source
or minor modification will not interfere
with attainment or maintenance of a
national ambient air quality standard.
Comment: The State’s concern was
that the schedule for submittal of the
SIP revision would require use of
existing and somewhat outdated
technical data due to the short
timeframe. TCEQ commented that for
any SIP revision, the most current and
robust technical work is optimal, but
due to the short timeframe for submittal,
if they are required to submit an
attainment demonstration SIP revision
for the area by January 1, 2009, use of
existing and somewhat outdated
technical work will be necessary.
Response: With respect to any
potential burden imposed by the new
planning requirements, EPA notes that
the moderate area requirements are
imposed by section 182(b) of the CAA
VerDate Aug<31>2005
16:03 Mar 17, 2008
Jkt 214001
and the impact of a reclassification is
not a consideration in making the
attainment determination under section
181(b)(2). When an area is reclassified,
the EPA has the authority under section
182(i) of the Act to adjust the Act’s
submittal deadlines for any new SIP
revisions that are required as a result of
reclassification. Although some may
argue that January 1, 2009 provides a
short timeframe for submittal of a
revised SIP, pursuant to 40 CFR
51.908(d), the State must provide for
implementation of all control measures
needed for attainment no later than
January 1, 2009, the beginning of the
attainment year ozone season for the
BPA area. See 40 CFR 51.900(g) and 40
CFR part 58, Appendix D, section 4.1,
Table D–3 (71 FR 61236).
Establishing the date for submittal as
January 1, 2009 will help the State to
optimize, to the extent possible, its
public consultation and rulemaking
process to choose control strategies,
adopt, and implement them swiftly in
order to avoid the possibility of the area
failing to attain again and being
reclassified to serious. Given the
submittal deadline, the State should use
the best and most up-to-date
information available in the allotted
timeframe. For more discussion of the
SIP submittal date, please see the
section titled ‘‘Proposed Date for
Submitting a Revised SIP for the BPA
Area’’ in our proposed action (72 FR
61310, October 30, 2007).
Comment: TCEQ also asked for
clarification regarding the following
sentences in the proposal notice at page
61321: ‘‘The BPA area may attain the 8hour ozone standard at the end of 2007,
based on data from 2005, 2006 and
2007. If EPA determines, after notice
and comment rulemaking, that the area
has attained the standard at the end of
2007, the requirement to submit SIPs
related to attainment of the standard
shall be suspended until such time as
(1) the area is redesignated to
attainment, at which time the
requirements no longer apply; or (2)
EPA determines that the area has
violated the 8-hour ozone NAAQS (40
CFR 51.918).’’
The State asked in particular whether
EPA would set a new SIP submittal
deadline after notice and comment
rulemaking.
Response: The staffs of both agencies
have been in contact to discuss various
potential legal avenues available to the
State of Texas. The State staff is
considering the pros and cons of the
potential legal avenues.
One of the potential legal avenues is
the use of our clean data regulation for
the 8-hour ozone standard (40 CFR
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
14393
51.918). This is the legal avenue alluded
to in the proposal. Under this
regulation, if after EPA makes a clean
data determination that results in the
suspension of the requirement to submit
certain SIPs, and EPA later determines
that the area violates the 8-hour ozone
NAAQS, EPA would establish a new SIP
submittal deadline for these SIP
requirements after notice and comment
rulemaking. As EPA stated in its May
10, 1995 Memorandum ‘‘Reasonable
Further Progress, Attainment
Demonstration, and Related
Requirements for Ozone Nonattainment
Areas Meeting the Ozone National
Ambient Air Quality Standard for the 1hour NAAQS’’, ‘‘[i]f EPA subsequently
determines that an area has violated the
standard * * *. EPA would notify the
State of that determination and would
also provide notice to the public in the
Federal Register. Such a determination
would mean that the area would
thereafter have to address the pertinent
SIP requirements within a reasonable
amount of time, which EPA would
establish taking into account the
individual circumstances surrounding
the particular SIP submissions at issue.’’
(pp. 6–7).
A potential consequence of relying
upon this avenue is that depending on
the timing of a violation and of an EPA
rulemaking determining that a violation
had occurred, it is possible that the BPA
area would not be able to attain by its
new moderate area attainment date, and
therefore may be subject to another
determination of nonattainment and
reclassification to a higher classification
than moderate.
III. What is the Effect of This Action?
A. Determination of Nonattainment,
Reclassification of the BPA Area to
Moderate and the New Attainment Date
for the BPA Area
Pursuant to section 181(b)(2), we find
that the BPA area failed to attain the 8hour ozone NAAQS by the June 15,
2007, attainment deadline prescribed
under the CAA and 69 FR 23858 (April
30, 2004) for marginal ozone
nonattainment areas. When this finding
is effective, the BPA area is reclassified
by operation of law from marginal
nonattainment to moderate
nonattainment. The reclassification to
the next higher classification is
mandated by Section 181(b)(2)(A) of the
CAA. Moderate areas are required to
attain the standard ‘‘as expeditiously as
practicable’’ but no later than 6 years
after designation or June 15, 2010. The
‘‘as expeditiously as practicable’’
attainment date will be determined as
part of the action on the required SIP
E:\FR\FM\18MRR1.SGM
18MRR1
14394
Federal Register / Vol. 73, No. 53 / Tuesday, March 18, 2008 / Rules and Regulations
submittal demonstrating attainment of
the 8-hour ozone standard. Also in this
action, we are establishing a schedule
by which Texas will submit the SIP
revision necessary for the
reclassification to moderate
nonattainment of the 8-hour ozone
standard.
rwilkins on PROD1PC63 with PROPOSALS
B. What Is the Date for Submitting a
Revised SIP for the BPA Area?
We must address the schedule by
which Texas is required to submit the
SIP revision addressing the
requirements for the BPA area. When an
area is reclassified, we have the
authority under section 182(i) of the
CAA to adjust the CAA’s submittal
deadlines for any new SIP revisions that
are required as a result of the
reclassification. Pursuant to 40 CFR
51.908(d), for each nonattainment area,
a state must provide for implementation
of all control measures needed for
attainment no later than the beginning
of the attainment year ozone season.
The attainment year ozone season is the
ozone season immediately preceding a
nonattainment area’s attainment date, in
this case 2009 (40 CFR 51.900(g)). The
ozone season is the ozone monitoring
season as defined in 40 CFR part 58,
Appendix D, section 4.1, Table D–3
(October 17, 2006, 71 FR 61236). For the
purposes of this reclassification for the
BPA area, January 1, 2009 is the
beginning of the ozone monitoring
season. As a result, we are requiring that
the required SIP revision be submitted
by Texas as expeditiously as practicable,
but no later than January 1, 2009.
A revised SIP must include, among
other things, all the moderate area
requirements in section 182(b) of the
Act: (1) An attainment demonstration
(40 CFR 51.908), (2) provisions for
reasonably available control technology
and reasonably available control
measures (40 CFR 51.912), (3)
reasonable further progress reductions
in volatile organic compound (VOC) and
nitrogen oxide (NOX) emissions (40 CFR
51.910), and (4) contingency measures
to be implemented in the event of
failure to meet a milestone or attain the
standard (CAA 172(c)(9)).2 See also the
requirements for moderate ozone
nonattainment areas set forth in CAA
section 182(b). Since the BPA area also
is a 1-hour ozone nonattainment area,
the anti-backsliding requirements of 40
2 A vehicle inspection and maintenance (I/M)
program would normally be listed as a requirement
for an ozone moderate or above nonattainment area.
However, the Federal I/M Flexibility Amendments
of 1995 determined that urbanized areas with
populations less than 200,000 for 1990 (such as
BPA) are not mandated to participate in the I/M
program (60 FR 48027, September 18, 1995).
VerDate Aug<31>2005
16:03 Mar 17, 2008
Jkt 214001
CFR 51.900 and 51.905 apply also. See
also South Coast Air Quality Mgmt. Dist.
v. EPA, 472 F.3d 882 (D.C. Cir. 2006),
mod. (June 8, 2007).
IV. Final Action
Pursuant to CAA section 181(b)(2), we
are making a final determination that
the Beaumont/Port Arthur ‘‘marginal’’ 8hour ozone nonattainment area failed to
attain the 8 hour ozone NAAQS by June
15, 2007. Upon the effective date of this
rule, the area is reclassified by operation
of law as a moderate 8-hour ozone
nonattainment area. Pursuant to section
182(i) of the CAA, we are establishing
the schedule for submittal of the SIP
revision required for moderate areas
once the area is reclassified. The
required SIP revision for the BPA area
shall be submitted by the State of Texas
as expeditiously as practicable, but no
later than January 1, 2009.
V. Statutory and Executive Order
Reviews
A. Executive Order 12866, Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order (EO) 12866 (58 FR
51735, October 4, 1993) and is therefore
not subject to review under the EO. The
Agency has determined that the finding
of nonattainment would result in none
of the effects identified in the Executive
Order. Under section 181(b) (2) of the
CAA, determinations of nonattainment
are based upon air quality
considerations and the resulting
reclassifications must occur by
operation of law.
B. Paperwork Reduction Act
This rule does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. This action
to reclassify the BPA area as a moderate
ozone nonattainment area and to adjust
applicable deadlines does not establish
any new information collection burden.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information. An agency
may not conduct or sponsor, and a
person is not required to respond to a
collection of information unless it
displays a currently valid Office of
Management and Budget (OMB) control
number. The OMB control numbers for
EPA’s regulations in 40 CFR are listed
in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedures Act or any
other statute unless the agency certifies
the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of this action on small entities, small
entity is defined as: (1) A small business
that is a small industrial entity as
defined in the U.S. Small Business
Administration (SBA) size standards.
(See 13 CFR part 121.); (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; and (3)
a small organization that is any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field. Determinations of
nonattainment and the resulting
reclassification of nonattainment areas
by operation of law under section 181(b)
(2) of the CAA do not in and of
themselves create any new
requirements. Instead, this rulemaking
only makes a factual determination, and
does not directly regulate any entities.
After considering the economic impacts
of today’s action on small entities, I
certify that this rule will not have a
significant economic impact on a
substantial number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with ‘‘Federal mandates’’ that may
result in expenditures to State, local,
E:\FR\FM\18MRR1.SGM
18MRR1
rwilkins on PROD1PC63 with PROPOSALS
Federal Register / Vol. 73, No. 53 / Tuesday, March 18, 2008 / Rules and Regulations
and Tribal governments, in the
aggregate, or to the private sector, of
$100 million or more in any one year.
Before promulgating an EPA rule for
which a written statement is needed,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation as to why that
alternative was not adopted. Before EPA
establishes any regulatory requirements
that may significantly or uniquely affect
small governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
This action does not include a Federal
mandate within the meaning of UMRA
that may result in expenditures of $100
million or more in any one year by
either State, local, or Tribal
governments in the aggregate or to the
private sector, and therefore, is not
subject to the requirements of sections
202 and 205 of the UMRA. Also, EPA
has determined that this rule contains
no regulatory requirements that might
significantly or uniquely affect small
governments and therefore, is not
subject to the requirements of section
203. EPA believes, as discussed
previously in this document, that the
finding of nonattainment is a factual
determination based upon air quality
considerations and that the resulting
reclassification of the area must occur
by operation of law. Thus, EPA believes
that the finding does not constitute a
Federal mandate, as defined in section
101 of the UMRA, because it does not
impose an enforceable duty on any
entity.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
VerDate Aug<31>2005
16:03 Mar 17, 2008
Jkt 214001
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that 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.’’
This rule 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, as specified in
Executive Order 13132. This action
merely determines that the BPA area
had not attained by its applicable
attainment date, and to reclassify the
BPA area as a moderate ozone
nonattainment area and to adjust
applicable deadlines. Thus, Executive
Order 13132 does not apply to this rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ This action does not have
‘‘Tribal implications’’ as specified in
Executive Order 13175. This action
merely determines that the BPA area has
not attained by its applicable attainment
date, and to reclassify the BPA area as
a moderate ozone nonattainment area
and to adjust applicable deadlines. The
Clean Air Act and the Tribal Authority
Rule establish the relationship of the
Federal government and Tribes in
developing plans to attain the NAAQS,
and this rule does nothing to modify
that relationship. Thus, Executive Order
13175 does not apply to this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
Executive Order 13045: ‘‘Protection of
Children From Environmental Health
and Safety Risks’’ (62 FR 19885, April
23, 1997) applies to any rule that (1) is
determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have
disproportionate effect on children. If
PO 00000
Frm 00025
Fmt 4700
Sfmt 4700
14395
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency. This action
is not subject to Executive Order 13045
because it is not economically
significant as defined in E.O. 12866, and
because the Agency does not have
reason to believe the environmental
health risks or safety risks addressed by
this rule present a disproportionate risk
to children. This action merely
determines that the BPA area has not
attained the standard by the applicable
attainment date, and to reclassify the
BPA area as a moderate ozone
nonattainment area and to adjust
applicable deadlines.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211, ‘‘Actions That
Significantly Affect Energy Supply,
Distribution, or Use,’’ (66 FR 28355,
May 22, 2001) because it is not a
significant regulatory action under
Executive Order 12866.
I. National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law No. 104–
113, section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards (VCS) in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by VCS bodies. The NTTAA
directs EPA to provide Congress,
through OMB, explanations when the
Agency decides not to use available and
applicable VCS. This action merely
determines that the BPA nonattainment
area has not attained by its applicable
attainment date, and to reclassify the
BPA ‘‘marginal’’ nonattainment area as
a ‘‘moderate’’ ozone nonattainment area
and to adjust applicable deadlines. It
does not involve technical standards.
Therefore, EPA did not consider the use
of any voluntary consensus standards.
E:\FR\FM\18MRR1.SGM
18MRR1
14396
Federal Register / Vol. 73, No. 53 / Tuesday, March 18, 2008 / Rules and Regulations
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 16, 1994) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this rule will
not have disproportionately high and
adverse human health or environmental
effects on minority or low-income
populations because it does not affect
the level of protection provided to
human health or the environment. This
action merely determines that the BPA
nonattainment area has not attained by
its applicable attainment date, and to
reclassify the BPA nonattainment area
as a moderate ozone nonattainment area
and to adjust applicable deadlines.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. This rule is not a
‘‘major rule’’ as defined by 5 U.S.C.
804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by May 19, 2008.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this rule 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 to
reclassify the BPA area as a moderate
ozone nonattainment area and to adjust
applicable deadlines may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b) (2).)
List of Subjects in 40 CFR Part 81
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 6, 2008.
Richard E. Greene,
Regional Administrator, Region 6.
Part 81, chapter I, title 40 of the Code
of Federal Regulations is amended as
follows:
I
PART 81—[AMENDED]
1. The authority citation for part 81
continues to read as follows:
I
Authority: 42 U.S.C. 7401 et seq.
2. In § 81.344 the table entitled
‘‘Texas—Ozone (8-hour Standard)’’ is
amended by revising the entries for
Beaumont/Port Arthur, TX to read as
follows:
I
§ 81.344
*
Texas.
*
*
*
*
TEXAS—OZONE
[8-hour standard]
Designation a
Classification
Designated area
Date1
*
*
Type
........................
........................
........................
Beaumont/Port Arthur, TX:
Hardin County .................................................
Jefferson County .............................................
Orange County ................................................
Nonattainment ....................
Nonattainment ....................
Nonattainment ....................
*
*
Date1
Type
(3)
(3)
(3)
*
Subpart 2/Moderate.
Subpart 2/Moderate.
Subpart 2/Moderate.
*
*
a Includes
Indian Country located in each county or area, except as otherwise specified.
date is June 15, 2004, unless otherwise noted.
*
*
*
*
*
3 April 17, 2008.
1 This
[FR Doc. E8–5403 Filed 3–17–08; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 229
[Docket No. 080311419–8426–01]
rwilkins on PROD1PC63 with PROPOSALS
RIN 0648–XG33
Taking of Marine Mammals Incidental
to Commercial Fishing Operations;
Atlantic Large Whale Take Reduction
Plan
National Marine Fisheries
Service (NMFS), National Oceanic and
AGENCY:
VerDate Aug<31>2005
16:03 Mar 17, 2008
Jkt 214001
PO 00000
Frm 00026
Fmt 4700
Sfmt 4700
*
*
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule.
SUMMARY: The Assistant Administrator
for Fisheries (AA), NOAA, announces
temporary restrictions consistent with
the requirements of the Atlantic Large
Whale Take Reduction Plan’s
(ALWTRP) implementing regulations.
These regulations apply to lobster trap/
pot and anchored gillnet fishermen in
an area totaling approximately 1,370
nm2 (4,699 km2), northeast of Boston,
Massachusetts for 15 days. The purpose
of this action is to provide protection to
E:\FR\FM\18MRR1.SGM
18MRR1
]]>Agencies
[Federal Register Volume 73, Number 53 (Tuesday, March 18, 2008)]
[Rules and Regulations]
[Pages 14391-14396]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-5403]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R06-OAR-2007-0969; FRL-8543-5]
Determination of Nonattainment and Reclassification of the
Beaumont/Port Arthur 8-Hour Ozone Nonattainment Area; State of Texas;
Final Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule finalizes EPA's finding of nonattainment and
reclassification of the Beaumont/Port Arthur 8-hour ozone nonattainment
area (BPA area). EPA finds that the BPA area has failed to attain the 8
hour ozone national ambient air quality standard (``NAAQS'' or
``standard'') by June 15, 2007, the attainment deadline set forth in
the Clean Air Act (CAA) and Code of Federal Regulations (CFR) for
marginal nonattainment areas. As a result, on the effective date of
this rule, the BPA area is reclassified by operation of law as a
moderate 8-hour ozone nonattainment area. The new moderate area
attainment date for the reclassified BPA area is ``as expeditiously as
practicable,'' but no later than June 15, 2010. The State of Texas must
submit a SIP revision that meets the requirements of the CAA on or
before January 1, 2009.
DATES: This final rule is effective on April 17, 2008.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R06-OAR-2007-0969. All documents in the docket
are listed on the https://www.regulations.gov Web site. Although listed
in the index, some information is not publicly available, i.e.,
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 and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through https://www.regulations.gov or
in hard copy at the Air Planning Section (6PD-L), Environmental
Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733. The file will be made available by appointment for public
inspection in the Region 6 FOIA Review Room between the hours of 8:30
a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the
person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or
Mr. Bill Deese at 214-665-7253 to make an appointment. If possible,
please make the appointment at least two working days in advance of
your visit. There will be a 15 cent per page fee for making photocopies
of documents. On the day of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
FOR FURTHER INFORMATION CONTACT: Carl Young, Air Planning Section,
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7247; fax
number 214-665-7263; e-mail address young.carl@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means EPA.
Table of Contents
I. What Is the Background for This Action?
II. What Comments Did EPA Receive on the October 30, 2007 Proposal
and How Has EPA Responded to Them?
III. What Is the Effect of This Action?
A. Determination of Nonattainment, Reclassification of the BPA
Area To Moderate and the New Attainment Date for the BPA Area
B. What Is the Date for Submitting a Revised SIP for the BPA
Area?
IV. Final Action
V. Statutory and Executive Order Reviews
I. What Is the Background for This Action?
The BPA area was classified as a marginal 8-hour ozone
nonattainment area and, therefore, was required to attain the 8-hour
ozone standard by June 15, 2007 (69 FR 23858). On October 30, 2007, we
proposed to find that the BPA ozone nonattainment area did not attain
the 8-hour ozone NAAQS by June 15, 2007, the applicable attainment
date, (72 FR 61310). The proposed finding was based upon ambient air
quality data from the years 2004, 2005, and 2006 that showed the area's
air quality violated the standard. In addition, as explained in the
proposed rule, the area did not qualify for an attainment date
extension under the provisions of section 181(a)(5) and 40 CFR 51.907,
because the area's 4th highest daily maximum 8-hour
[[Page 14392]]
average ozone value in the attainment year of 2006 was greater than
0.084 parts per million (ppm). In the October 30, 2007, proposal, we
also proposed that the appropriate reclassification of the BPA area
would be from ``marginal'' to ``moderate'' nonattainment, in accordance
with CAA Section 181(b)(2). We further proposed that the State of Texas
submit the required SIP revision by January 1, 2009.
II. What Comments Did EPA Receive on the October 30, 2007 Proposal and
How Has EPA Responded to Them?
We received 18 comment letters on our proposal to find the BPA
ozone nonattainment area failed to attain the 8-hour ozone NAAQS by
June 15, 2007 and to reclassify the area from marginal to moderate and
on our proposed schedule for the required SIP revision submittal (72 FR
61310). Comments were received from: Beaumont City Council Member;
ChevronPhillips Chemical Company's Orange Plant; ChevronPhillips
Chemical Company's Port Arthur Plant; Clean Air and Water, Inc.;
Entergy Texas; Gerdau Ameristeel Beaumont; Goodyear Tire and Rubber
Company; Greater Port Arthur Texas Chamber of Commerce; Hardin County
Commissioner's Court; Huntsman Petrochemical Corporation; Jefferson
County Commissioner for Precinct 1; Jefferson County Commissioner for
Precinct 4; Jefferson County Judge; LANXESS Corporation; Port Arthur
City Manager; Southeast Texas Chapter of Texas Association of Business;
South East Texas Regional Planning Commission; and the Texas
Commissions on Environmental Quality (TCEQ).
Comments can be found on the Internet in the electronic docket for
this action. To access the comments, please go to https://
www.regulations.gov and search for Docket No. EPA-R06-OAR-2007-0969, or
contact the person listed in the FOR FURTHER INFORMATION CONTACT
paragraph above. A summary of the relevant comments and EPA's response
to the comments received is presented below.
Comment: Sixteen of the commenters requested that EPA postpone
finalizing the reclassification because current monitoring data are
showing attainment and requested that EPA instead allow the area the
opportunity to file for redesignation to attainment for the 8-hour
ozone standard. To support their request for EPA to not finalize the
reclassification, many discussed the status of the air quality in the
BPA area, noting that it is much cleaner today than it was in 1990 at
the time the CAA amendments were finalized: (1) Monitored levels of
nitrogen oxides and volatile organic compounds are at least 40-50%
lower than 10 years ago, (2) major reductions in monitored air toxic
levels continue and after 17 years of monitoring, there is no evidence
of air toxic hot spots, (3) ozone has been improving in the area in
both design value and number of exceedances and (4) this improvement is
due to the tremendous amount of work done by local industry,
businesses, and community.
Response: We recognize the efforts taken by TCEQ, the Southeast
Texas Planning Commission, local industry, businesses, and the
community to improve air quality. EPA acknowledges that the area's air
quality data has improved, but the area did not meet the 8-hour ozone
standard by the applicable June 15, 2007 attainment date. TCEQ, itself,
agreed the BPA area's air quality was not below the 8-hour ozone
standard for the years 2004, 2005, and 2006. These three years of air
quality data provide the area's design value ``as of the attainment
date.'' This value shows that the area did not attain the standard by
the applicable attainment date. The Act requires EPA to make an
attainment determination within six months following the attainment
date. Reclassification upon a determination of failure is not a
discretionary power and EPA cannot waive reclassification after it has
determined that the area has failed to attain by its attainment date.
In our October 30, 2007, proposed rule (72 FR 61310), we cited
section 181(b)(2)(A) of the CAA, which provides that, for
reclassification upon failure to attain, ``within 6 months following
the applicable attainment date (including any extension thereof) for an
ozone nonattainment area, the Administrator shall determine, based on
the area's design value (as of the attainment date), whether the area
attained the standard by that date. Except for any Severe or Extreme
area, any area that the Administrator finds has not attained the
standard by that date shall be reclassified by operation of law in
accordance with table 1 of subsection (a) (of Section 181) to the
higher of--(i) the next higher classification for the area, or (ii) the
classification applicable to the area's design value as determined at
the time of the notice required under subparagraph (B).'' Pursuant to
section 181(b)(2), we have determined that the BPA area failed to
attain the 8-hour ozone NAAQS by June 15, 2007, the attainment deadline
set forth in the CAA and CFR for marginal nonattainment areas. Because
the area is not classified as Severe or Extreme, the area shall be
reclassified by operation of law to the next higher classification. The
next higher classification for the area (moderate) is higher than the
classification applicable to the area's design value (marginal).
Therefore, in accordance with the CAA, the BPA area must be
reclassified by operation of law to a moderate nonattainment area. 72
FR 61312.
As EPA noted above, under section 181(b)(2)(A), the attainment
determination is made solely based on air quality, and any
reclassification is by operation of law. Thus, the resulting
requirements apply regardless of how the nonattainment came about, and
the CAA requires EPA to consider only the air quality data occurring as
of the attainment date (including any extension thereof), in making the
mandatory attainment determination.
Today's action, however, does not preclude TCEQ from developing and
submitting the appropriate documentation for redesignation of the area
from nonattainment to attainment. The appropriate documentation would
be the submittal after public notice, public comment period, and public
hearing of a complete redesignation request that meets the requirements
of the Act and the Phase 1 8-hour ozone implementation rule, and an
approvable plan for maintenance of the 8-hour ozone standard.\1\ The
September 4, 1992 Calcagni memorandum and the 1993 Shapiro memorandum
describe EPA's interpretation of section 107(d)(3)(E) with respect to
the timing of applicable requirements. Under this interpretation, to
qualify for redesignation, States requesting redesignation to
attainment must meet the relevant Clean Air Act requirements that came
due prior to the submittal of a complete redesignation request.
Applicable requirements of the Act that come due subsequent to the
[[Page 14393]]
area's submittal of a complete redesignation request remain applicable
until a redesignation is approved, but are not required as a
prerequisite to redesignation. Section 175A(c) of the Act. Sierra Club
v. EPA, 375 F.3d 537 (7th Cir. 2004). See also, 68 FR at 25424, 25427
(May 12, 2003) (redesignation of St. Louis).
---------------------------------------------------------------------------
\1\ For more information on redesignation to attainment, please
see, among other things, the General Preamble for the Implementation
of Title I of the CAA Amendments of 1990, published on April 16,
1992 (57 FR 13498), and supplemented on April 28, 1992 (57 FR
18070); ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992 (available at: https://
www.epa.gov/ttn/oarpg/t5/memoranda/redesignmem090492.pdf); ``State
Implementation Plan (SIP) Requirements for Areas Submitting Requests
for Redesignation to Attainment of the Ozone and Carbon Monoxide
(CO) National Ambient Air Quality Standards (NAAQS) On or After
November 15, 1992,'' Memorandum from Michael H. Shapiro, Acting
Assistant Administrator for Air and Radiation, September 17, 1993
(available at: https://www.epa.gov/ttn/caaa/t1/memoranda/
redesig.pdf); the redesignation of Detroit-Ann Arbor published ion
March 7, 1995 (60 FR 12459, 12465-12466, and EPA's Final Rule to
Implement the 8-Hour Ozone NAAQS-Phase 1 and the Notice of
Reconsideration at 69 FR 23951 (April 30, 2004) and 70 FR 30592,
30604 (May 26, 2005).
---------------------------------------------------------------------------
Comment: One commenter stated that (1) the area did miss the June
15, 2007 attainment date; (2) action on this matter should be based on
real data, not speculation of attainment in the near future; and (3)
the area's petrochemical industry is currently undergoing expansions
which will result in more air emissions. Consequently, the
recommendation was that the area be classified as moderate until
attainment is actually achieved.
Response: EPA agrees with the commenter supporting the proposal. As
quality-assured data for the area shows the area did not attain the 8-
hour ozone standard by the June 15, 2007 attainment date, the area is
being reclassified by operation of law as moderate nonattainment.
Regarding the commenter's concern about industry expansions and more
air emissions, the State's Nonattainment New Source Review (NNSR)
permitting requirements apply to new major sources or major
modifications at existing air pollution sources, such as the
petrochemical industry expansions. The NNSR permit issued by the State
must require that the emissions increase from the new source or
modification be offset. The NNSR permit also requires the source to
reduce emissions consistent with the application of lowest achievable
emission rate as defined in 40 CFR 51.165(a)(1)(xiii). The State's
permitting rules provide that the TCEQ will assure that emissions from
a new minor source or minor modification will not interfere with
attainment or maintenance of a national ambient air quality standard.
Comment: The State's concern was that the schedule for submittal of
the SIP revision would require use of existing and somewhat outdated
technical data due to the short timeframe. TCEQ commented that for any
SIP revision, the most current and robust technical work is optimal,
but due to the short timeframe for submittal, if they are required to
submit an attainment demonstration SIP revision for the area by January
1, 2009, use of existing and somewhat outdated technical work will be
necessary.
Response: With respect to any potential burden imposed by the new
planning requirements, EPA notes that the moderate area requirements
are imposed by section 182(b) of the CAA and the impact of a
reclassification is not a consideration in making the attainment
determination under section 181(b)(2). When an area is reclassified,
the EPA has the authority under section 182(i) of the Act to adjust the
Act's submittal deadlines for any new SIP revisions that are required
as a result of reclassification. Although some may argue that January
1, 2009 provides a short timeframe for submittal of a revised SIP,
pursuant to 40 CFR 51.908(d), the State must provide for implementation
of all control measures needed for attainment no later than January 1,
2009, the beginning of the attainment year ozone season for the BPA
area. See 40 CFR 51.900(g) and 40 CFR part 58, Appendix D, section 4.1,
Table D-3 (71 FR 61236).
Establishing the date for submittal as January 1, 2009 will help
the State to optimize, to the extent possible, its public consultation
and rulemaking process to choose control strategies, adopt, and
implement them swiftly in order to avoid the possibility of the area
failing to attain again and being reclassified to serious. Given the
submittal deadline, the State should use the best and most up-to-date
information available in the allotted timeframe. For more discussion of
the SIP submittal date, please see the section titled ``Proposed Date
for Submitting a Revised SIP for the BPA Area'' in our proposed action
(72 FR 61310, October 30, 2007).
Comment: TCEQ also asked for clarification regarding the following
sentences in the proposal notice at page 61321: ``The BPA area may
attain the 8-hour ozone standard at the end of 2007, based on data from
2005, 2006 and 2007. If EPA determines, after notice and comment
rulemaking, that the area has attained the standard at the end of 2007,
the requirement to submit SIPs related to attainment of the standard
shall be suspended until such time as (1) the area is redesignated to
attainment, at which time the requirements no longer apply; or (2) EPA
determines that the area has violated the 8-hour ozone NAAQS (40 CFR
51.918).''
The State asked in particular whether EPA would set a new SIP
submittal deadline after notice and comment rulemaking.
Response: The staffs of both agencies have been in contact to
discuss various potential legal avenues available to the State of
Texas. The State staff is considering the pros and cons of the
potential legal avenues.
One of the potential legal avenues is the use of our clean data
regulation for the 8-hour ozone standard (40 CFR 51.918). This is the
legal avenue alluded to in the proposal. Under this regulation, if
after EPA makes a clean data determination that results in the
suspension of the requirement to submit certain SIPs, and EPA later
determines that the area violates the 8-hour ozone NAAQS, EPA would
establish a new SIP submittal deadline for these SIP requirements after
notice and comment rulemaking. As EPA stated in its May 10, 1995
Memorandum ``Reasonable Further Progress, Attainment Demonstration, and
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard for the 1-hour NAAQS'', ``[i]f
EPA subsequently determines that an area has violated the standard * *
*. EPA would notify the State of that determination and would also
provide notice to the public in the Federal Register. Such a
determination would mean that the area would thereafter have to address
the pertinent SIP requirements within a reasonable amount of time,
which EPA would establish taking into account the individual
circumstances surrounding the particular SIP submissions at issue.''
(pp. 6-7).
A potential consequence of relying upon this avenue is that
depending on the timing of a violation and of an EPA rulemaking
determining that a violation had occurred, it is possible that the BPA
area would not be able to attain by its new moderate area attainment
date, and therefore may be subject to another determination of
nonattainment and reclassification to a higher classification than
moderate.
III. What is the Effect of This Action?
A. Determination of Nonattainment, Reclassification of the BPA Area to
Moderate and the New Attainment Date for the BPA Area
Pursuant to section 181(b)(2), we find that the BPA area failed to
attain the 8-hour ozone NAAQS by the June 15, 2007, attainment deadline
prescribed under the CAA and 69 FR 23858 (April 30, 2004) for marginal
ozone nonattainment areas. When this finding is effective, the BPA area
is reclassified by operation of law from marginal nonattainment to
moderate nonattainment. The reclassification to the next higher
classification is mandated by Section 181(b)(2)(A) of the CAA. Moderate
areas are required to attain the standard ``as expeditiously as
practicable'' but no later than 6 years after designation or June 15,
2010. The ``as expeditiously as practicable'' attainment date will be
determined as part of the action on the required SIP
[[Page 14394]]
submittal demonstrating attainment of the 8-hour ozone standard. Also
in this action, we are establishing a schedule by which Texas will
submit the SIP revision necessary for the reclassification to moderate
nonattainment of the 8-hour ozone standard.
B. What Is the Date for Submitting a Revised SIP for the BPA Area?
We must address the schedule by which Texas is required to submit
the SIP revision addressing the requirements for the BPA area. When an
area is reclassified, we have the authority under section 182(i) of the
CAA to adjust the CAA's submittal deadlines for any new SIP revisions
that are required as a result of the reclassification. Pursuant to 40
CFR 51.908(d), for each nonattainment area, a state must provide for
implementation of all control measures needed for attainment no later
than the beginning of the attainment year ozone season. The attainment
year ozone season is the ozone season immediately preceding a
nonattainment area's attainment date, in this case 2009 (40 CFR
51.900(g)). The ozone season is the ozone monitoring season as defined
in 40 CFR part 58, Appendix D, section 4.1, Table D-3 (October 17,
2006, 71 FR 61236). For the purposes of this reclassification for the
BPA area, January 1, 2009 is the beginning of the ozone monitoring
season. As a result, we are requiring that the required SIP revision be
submitted by Texas as expeditiously as practicable, but no later than
January 1, 2009.
A revised SIP must include, among other things, all the moderate
area requirements in section 182(b) of the Act: (1) An attainment
demonstration (40 CFR 51.908), (2) provisions for reasonably available
control technology and reasonably available control measures (40 CFR
51.912), (3) reasonable further progress reductions in volatile organic
compound (VOC) and nitrogen oxide (NOX) emissions (40 CFR
51.910), and (4) contingency measures to be implemented in the event of
failure to meet a milestone or attain the standard (CAA 172(c)(9)).\2\
See also the requirements for moderate ozone nonattainment areas set
forth in CAA section 182(b). Since the BPA area also is a 1-hour ozone
nonattainment area, the anti-backsliding requirements of 40 CFR 51.900
and 51.905 apply also. See also South Coast Air Quality Mgmt. Dist. v.
EPA, 472 F.3d 882 (D.C. Cir. 2006), mod. (June 8, 2007).
---------------------------------------------------------------------------
\2\ A vehicle inspection and maintenance (I/M) program would
normally be listed as a requirement for an ozone moderate or above
nonattainment area. However, the Federal I/M Flexibility Amendments
of 1995 determined that urbanized areas with populations less than
200,000 for 1990 (such as BPA) are not mandated to participate in
the I/M program (60 FR 48027, September 18, 1995).
---------------------------------------------------------------------------
IV. Final Action
Pursuant to CAA section 181(b)(2), we are making a final
determination that the Beaumont/Port Arthur ``marginal'' 8-hour ozone
nonattainment area failed to attain the 8 hour ozone NAAQS by June 15,
2007. Upon the effective date of this rule, the area is reclassified by
operation of law as a moderate 8-hour ozone nonattainment area.
Pursuant to section 182(i) of the CAA, we are establishing the schedule
for submittal of the SIP revision required for moderate areas once the
area is reclassified. The required SIP revision for the BPA area shall
be submitted by the State of Texas as expeditiously as practicable, but
no later than January 1, 2009.
V. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO. The Agency has
determined that the finding of nonattainment would result in none of
the effects identified in the Executive Order. Under section 181(b) (2)
of the CAA, determinations of nonattainment are based upon air quality
considerations and the resulting reclassifications must occur by
operation of law.
B. Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This action to reclassify the BPA area as a moderate ozone
nonattainment area and to adjust applicable deadlines does not
establish any new information collection burden. Burden means the total
time, effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information. An agency may not conduct or sponsor, and a
person is not required to respond to a collection of information unless
it displays a currently valid Office of Management and Budget (OMB)
control number. The OMB control numbers for EPA's regulations in 40 CFR
are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the agency certifies the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this action on small
entities, small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards. (See 13 CFR part 121.); (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. Determinations of nonattainment and the
resulting reclassification of nonattainment areas by operation of law
under section 181(b) (2) of the CAA do not in and of themselves create
any new requirements. Instead, this rulemaking only makes a factual
determination, and does not directly regulate any entities. After
considering the economic impacts of today's action on small entities, I
certify that this rule will not have a significant economic impact on a
substantial number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local,
[[Page 14395]]
and Tribal governments, in the aggregate, or to the private sector, of
$100 million or more in any one year. Before promulgating an EPA rule
for which a written statement is needed, section 205 of the UMRA
generally requires EPA to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, most cost-effective
or least burdensome alternative that achieves the objectives of the
rule. The provisions of section 205 do not apply when they are
inconsistent with applicable law. Moreover, section 205 allows EPA to
adopt an alternative other than the least costly, most cost-effective
or least burdensome alternative if the Administrator publishes with the
final rule an explanation as to why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including Tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
This action does not include a Federal mandate within the meaning
of UMRA that may result in expenditures of $100 million or more in any
one year by either State, local, or Tribal governments in the aggregate
or to the private sector, and therefore, is not subject to the
requirements of sections 202 and 205 of the UMRA. Also, EPA has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments and therefore,
is not subject to the requirements of section 203. EPA believes, as
discussed previously in this document, that the finding of
nonattainment is a factual determination based upon air quality
considerations and that the resulting reclassification of the area must
occur by operation of law. Thus, EPA believes that the finding does not
constitute a Federal mandate, as defined in section 101 of the UMRA,
because it does not impose an enforceable duty on any entity.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This rule 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, as
specified in Executive Order 13132. This action merely determines that
the BPA area had not attained by its applicable attainment date, and to
reclassify the BPA area as a moderate ozone nonattainment area and to
adjust applicable deadlines. Thus, Executive Order 13132 does not apply
to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This action does not have
``Tribal implications'' as specified in Executive Order 13175. This
action merely determines that the BPA area has not attained by its
applicable attainment date, and to reclassify the BPA area as a
moderate ozone nonattainment area and to adjust applicable deadlines.
The Clean Air Act and the Tribal Authority Rule establish the
relationship of the Federal government and Tribes in developing plans
to attain the NAAQS, and this rule does nothing to modify that
relationship. Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children From Environmental
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This action
is not subject to Executive Order 13045 because it is not economically
significant as defined in E.O. 12866, and because the Agency does not
have reason to believe the environmental health risks or safety risks
addressed by this rule present a disproportionate risk to children.
This action merely determines that the BPA area has not attained the
standard by the applicable attainment date, and to reclassify the BPA
area as a moderate ozone nonattainment area and to adjust applicable
deadlines.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, ``Actions That
Significantly Affect Energy Supply, Distribution, or Use,'' (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by VCS bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable VCS. This action merely determines that the BPA
nonattainment area has not attained by its applicable attainment date,
and to reclassify the BPA ``marginal'' nonattainment area as a
``moderate'' ozone nonattainment area and to adjust applicable
deadlines. It does not involve technical standards. Therefore, EPA did
not consider the use of any voluntary consensus standards.
[[Page 14396]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations because it does not affect the level of
protection provided to human health or the environment. This action
merely determines that the BPA nonattainment area has not attained by
its applicable attainment date, and to reclassify the BPA nonattainment
area as a moderate ozone nonattainment area and to adjust applicable
deadlines.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 19, 2008. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 to reclassify the BPA area as a moderate
ozone nonattainment area and to adjust applicable deadlines may not be
challenged later in proceedings to enforce its requirements. (See
section 307(b) (2).)
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 6, 2008.
Richard E. Greene,
Regional Administrator, Region 6.
0
Part 81, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 81--[AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. In Sec. 81.344 the table entitled ``Texas--Ozone (8-hour
Standard)'' is amended by revising the entries for Beaumont/Port
Arthur, TX to read as follows:
Sec. 81.344 Texas.
* * * * *
Texas--Ozone
[8-hour standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Classification
Designated area -------------------------------------------------------------------------------------------------------------------
Date\1\ Type Date\1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beaumont/Port Arthur, TX:
Hardin County................... .............. Nonattainment........................... (\3\) Subpart 2/Moderate.
Jefferson County................ .............. Nonattainment........................... (\3\) Subpart 2/Moderate.
Orange County................... .............. Nonattainment........................... (\3\) Subpart 2/Moderate.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * * * *
\3\ April 17, 2008.
[FR Doc. E8-5403 Filed 3-17-08; 8:45 am]
BILLING CODE 6560-50-P
