Approval and Promulgation of Air Quality Implementation Plans; Texas; Approval of the Section 110(a)(1) Maintenance Plan for the 1997 8-Hour Ozone Standard for El Paso County, 2387-2392 [E9-708]
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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations
[FR Doc. E9–618 Filed 1–14–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2006–0357; FRL–8761–4]
Approval and Promulgation of Air
Quality Implementation Plans; Texas;
Approval of the Section 110(a)(1)
Maintenance Plan for the 1997 8-Hour
Ozone Standard for El Paso County
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
SUMMARY: EPA is taking direct final
action approving a revision to the Texas
State Implementation Plan (SIP). The
revision consists of a maintenance plan
for El Paso County developed to ensure
continued attainment of the 1997 8-hour
ozone National Ambient Air Quality
Standard (NAAQS) through the year
2014. The Maintenance Plan meets the
statutory and regulatory requirements,
and is consistent with EPA’s guidance.
EPA is approving the revision pursuant
to section 110 of the Federal Clean Air
Act (CAA).
DATES: This rule is effective on March
16, 2009 without further notice, unless
EPA receives relevant adverse comment
by February 17, 2009. If EPA receives
such comment, EPA will publish a
timely withdrawal in the Federal
Register informing the public that this
rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2006–0357, by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• EPA Region 6 ‘‘Contact Us’’ Web
site: https://epa.gov/region6/
r6coment.htm. Please click on ‘‘6PD’’
(Multimedia) and select ‘‘Air’’ before
submitting comments.
• E-mail: Mr. Guy Donaldson at
donaldson.guy@epa.gov. Please also
send a copy by e-mail to the person
listed in the FOR FURTHER INFORMATION
CONTACT section below.
• Fax: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD–L), at fax
number 214–665–7263.
• Mail: Mr. Guy Donaldson, Chief,
Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 1200, Dallas, Texas
75202–2733.
• Hand or Courier Delivery: Mr. Guy
Donaldson, Chief, Air Planning Section
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(6PD–L), Environmental Protection
Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202–2733. Such
deliveries are accepted only between the
hours of 8 a.m. and 4 p.m. weekdays
except for legal holidays. Special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2006–
0357. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or e-mail. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an e-mail
comment directly to EPA without going
through www.regulations.gov your email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
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.
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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.
The State submittal is also available
for public inspection at the State Air
Agency listed below during official
business hours by appointment:
Texas Commission on Environmental
Quality, Office of Air Quality, 12124
Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Riley, Air Planning Section
(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone 214–665–8542; fax number
214–665–7263; e-mail address
riley.jeffrey@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, whenever
‘‘we’’ ‘‘us’’ or ‘‘our’’ is used, we mean
the EPA.
Outline
I. What Is the Action EPA Is Taking?
II. What Is the Background for This Action?
III. What Is EPA’s Analysis of the State’s
Submittal?
IV. What Preconstruction Permitting Program
Applies in the Area?
V. Final Action
VI. Statutory and Executive Order Reviews
I. What Is the Action EPA Is Taking?
EPA is approving a revision to the
Texas SIP. The revision is a 1997 8-hour
ozone NAAQS maintenance plan for El
Paso County. The State of Texas,
through the Texas Commission on
Environmental Quality (TCEQ),
submitted the 1997 8-hour ozone
NAAQS maintenance plan for El Paso
County to EPA on January 20, 2006.
EPA is approving the maintenance plan
SIP revision for El Paso County as
meeting the requirements of CAA
Section 110(a)(1) and EPA’s regulations
under 40 CFR 51.905(c) and (d) and
being consistent with EPA guidance.
The maintenance plan is designed to
help keep the El Paso area in attainment
for the 8-hour ozone NAAQS through
the year 2014.
II. What Is the Background for This
Action?
Under the 1990 CAA Amendments, El
Paso County continued to be designated
nonattainment for the 1-hour ozone
NAAQS by operation of law and was
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classified as a serious nonattainment
area (see 56 FR 56694). El Paso County
has unique considerations for ozone
attainment planning due to airshed
contributions from Ciudad Juarez,
Mexico. Under Section 179B of the Act,
the EPA approved the 1-hour ozone
standard attainment demonstration SIP
for El Paso County on June 10, 2004 (see
69 FR 32450). TCEQ established to the
EPA’s satisfaction that implementation
of the plan would achieve timely
attainment of the 1-hour ozone NAAQS
but for emissions emanating from
Ciudad Juarez.
EPA also found the El Paso area
would attain by November 15, 1996,
earlier than the attainment deadline of
November 15, 1999. Due to this finding,
and the State’s enforceable commitment
to perform basin-wide modeling
whenever the necessary Juarez
information became available, the
requirement for a post-1996 plan with
an additional 9 percent of reductions
from November 1996 through November
1999 was deferred. This approval of the
section 179B attainment demonstration
SIP and deferral of the post-1996 plan
was contingent; valid only as long as the
area’s modeling data continued to show
that the El Paso 1-hour ozone area
would be in attainment of the 1-hour
NAAQS, but for emissions from outside
the United States.
TCEQ submitted all the other
requirements for a 1-hour ozone
nonattainment area classified as serious
and EPA approved them as follows:
Federal
Register
Notice
Description
Date of approval
15% Rate of Progress (ROP) Plan ...........................................
1990 base year Emissions Inventory ........................................
Periodic Inventory ......................................................................
Emissions Statements ...............................................................
Enhanced I/M .............................................................................
November 10, 1998 .................................................................
November 8, 1994 ...................................................................
Most Recent: December 2, 2004 (letter from TCEQ).
August 26, 1994 .......................................................................
August 22, 1994, revised .........................................................
November 14, 2001 .................................................................
March 7, 1995, revised ............................................................
October 1996 ...........................................................................
January 26, 1999 .....................................................................
March 15, 1999 ........................................................................
December 22, 1999 .................................................................
September 5, 2000 ..................................................................
December 20, 2000 .................................................................
July 16, 2001 ............................................................................
September 27, 1995 ................................................................
October 30, 1996 .....................................................................
March 7, 1995 ..........................................................................
April 15, 1994, revised .............................................................
March 29, 2005 ........................................................................
February 7, 2001 ......................................................................
November 10, 1998 .................................................................
October 4, 1994 .......................................................................
May 22, 1997 ...........................................................................
November 28, 1994 .................................................................
VOC Reasonably Available Control Technology (RACT) .........
New Source Review (NSR) .......................................................
Offset requirement .....................................................................
Reid Vapor Pressure .................................................................
Stage II Vapor Control ...............................................................
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Clean Fuel Vehicle Program .....................................................
Transportation Control Measures ..............................................
Enhanced Monitoring .................................................................
Failure-to-meet ROP and attainment contingency measures ...
NOX Waiver ...............................................................................
On April 30, 2004, EPA designated
and classified areas for the 1997 8-hour
ozone NAAQS (69 FR 23858), and
published the final Phase 1 rule for
implementation of the 1997 ozone
NAAQS (69 FR 23951). El Paso County
was designated as unclassifiable/
attainment for the 1997 ozone standard,
effective June 15, 2004 (see 69 FR
23858). Consequently, this attainment
area is required to submit a 10-year
maintenance plan under section
110(a)(1) of the CAA and the Phase 1
rule. On May 20, 2005, EPA issued
guidance providing information
regarding how a state might fulfill the
maintenance plan obligation established
by the Act and the Phase 1 rule
(Memorandum from Lydia N. Wegman
to Air Division Directors, Maintenance
Plan Guidance Document for Certain 8hour Ozone Areas Under Section
110(a)(1) of Clean Air Act, May 20,
2005). On January 20, 2006, Texas
submitted a 1997 8-hour ozone standard
maintenance plan for El Paso County to
EPA. This SIP revision satisfies the
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section 110(a)(1) CAA requirements for
a plan that provides for implementation,
maintenance, and enforcement of the
1997 8-hour ozone NAAQS in the El
Paso County unclassifiable/attainment
area.
On December 22, 2006, the United
States Court of Appeals for the District
of Columbia Circuit issued an opinion
that vacated EPA’s Phase 1
Implementation Rule for the 1997 8Hour Ozone Standard. (South Coast Air
Quality Management District. v. EPA,
472 F.3d 882 (DCCir. 2006). Petitions for
rehearing were filed with the Court, and
on June 8, 2007, the Court modified the
scope of the vacatur of the Phase 1 rule.
See 489 F.3d 1245 (DC Cir. 2007), cert.
denied, 128 S.Ct. 1065 (2008). The Court
vacated those portions of the Rule that
provide for regulation of the 1997 8hour ozone NAAQS nonattainment
areas under Subpart 1 in lieu of Subpart
2 and that allowed areas to revise their
SIPs to no longer require certain
programs as they applied for purposes
of the 1-hour NAAQS; new source
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63 FR 62943.
59 FR 55589.
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44036.
43046.
57261.
12438.
55897.
3841.
12759.
71666.
53595.
79745.
36913.
49781.
55894.
12438.
17940.
15769.
9203.
62943.
50504.
27964.
60714.
review, section 185 penalties, and
contingency plans for failure to meet
RFP and attainment milestones.
Consequently, the Court’s modified
ruling does not alter any requirements
under the Phase 1 implementation rule
for the 1997 8-hour ozone NAAQS for
maintenance plans.
The Phase 1 Rule also provided that
for an area like El Paso, any outstanding
obligations to provide SIP revisions
concerning attainment demonstration
and Rate of Progress (ROP) Plan for the
1-hour ozone NAAQS would no longer
be required as long as the area continues
to maintain the 8-hour standard. If the
8-hour standard is violated prior to the
area having an approved 8-hour
maintenance plan under section
110(a)(1), the area would be required to
submit a SIP revision to address the
deferred post-1996 ROP plan. The area
is not violating either the 1-hour or 8hour standard, and upon the effective
date of our approval of the 8-hour ozone
maintenance plan, there no longer will
be a potential outstanding requirement
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to submit a 1-hour ozone post-1996 ROP
Plan for the El Paso 1-hour ozone
nonattainment area.1
III. What Is EPA’s Analysis of the
State’s Submittal?
On January 20, 2006, the State of
Texas submitted a SIP revision
containing a maintenance plan for the
1997 ozone NAAQS for El Paso County.
The January revision provides a 1997
ozone NAAQS maintenance plan, as
required by section 110(a)(1) of the CAA
and the provisions of EPA’s Phase 1
Implementation Rule (see 40 CFR
51.905(a)(4)). The purpose of the plan is
to ensure continued attainment and
maintenance of the 1997 ozone NAAQS
in El Paso County.
In this action, EPA is approving the
State’s maintenance plan for the 1997
ozone NAAQS for the area of El Paso
County because EPA finds that the
TCEQ submittal meets the requirements
of section 110(a)(1) of the CAA, EPA’s
rule, and is consistent with EPA’s
guidance. As required, the plan
provides for continued attainment and
maintenance of the 1997 ozone NAAQS
in the area for 10 years from the
effective date of the area’s designation
as unclassifiable/attainment for the 1997
ozone NAAQS, and includes
components illustrating how the area
will continue in attainment of the 1997
ozone NAAQS and contingency
measures. Each of the section 110(a)(1)
plan components is discussed below.
(a) Attainment Inventory—The TCEQ
developed comprehensive inventories of
VOC and NOX emissions from area,
stationary, and mobile sources using
2002 as the base year to demonstrate
maintenance of the 1997 ozone NAAQS
for El Paso County. The year 2002 is an
appropriate year for the TCEQ to base
attainment level emissions because
States may select any one of the three
years on which the 8-hour attainment
designation for the 1997 ozone NAAQS
was based (2001, 2002, and 2003). The
State’s submittal contains the detailed
inventory data and summaries by source
category. The 2002 base year inventory
is a good choice. Using the 2002
inventory as a base year reflects one of
the years used for calculating the air
quality design values on which the 8hour ozone designation decisions were
based. It also is one of the years in the
2002–2004 period used to establish
baseline visibility levels for the regional
haze program.
A practical reason for selecting 2002
as the base year emission inventory is
that Section 110(a)(2)(B) of the CAA and
the Consolidated Emissions Reporting
Rule (67 FR 39602, June 10, 2002)
require States to submit emissions
inventories for all criteria pollutants and
their precursors every three years, on a
schedule that includes the emissions
year 2002. The due date for the 2002
emissions inventory is established in
the rule as June 2004. In accordance
with these requirements, the State of
Texas compiles a statewide EI for point
sources on an annual basis. For
stationary point sources, for El Paso
County, the TCEQ provided estimates
for each commercial or industrial
operation that emits 50 tons or more per
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year of VOC or NOX in Appendix B of
the maintenance plan. This data is
quality assured and entered into the
State of Texas Air Reporting System
(STARS). Projections for 2008 and 2014
were developed using the August 2005
Texas Industrial Production Index (TIPI)
derived growth factors, supplemented
with Economic Growth Analysis System
version 4.0 (EGAS 4.0). Stationary nonpoint source data was grown by using
EGAS 4.0, and On-road mobile
emissions of VOC and NOX were
estimated using EPA’s MOBILE6.2
motor vehicle emissions factor
computer model. Non-road mobile
projections were developed with EPA’s
NONROAD model, with the exception
of aircraft, airport ground support
equipment, and locomotives. For these
categories, the 2002 Periodic Emissions
Inventory was grown to 2008 and 2014
using EGAS 4.0 growth factors, and the
Federal Aviation Administration’s
Dispersion Modeling System (EDMS)
model was used to develop aircraft
emissions projections. EPA finds that
the TCEQ prepared the 2002 base year
emissions inventories and projected
data to the years 2008 and 2014, for the
area consistent with EPA’s longestablished guidance memoranda.
The following table provides VOC and
NOX emissions data for the 2002 base
attainment year inventory, as well as
projected VOC and NOX emission
inventory data for the years 2008 and
2014. Please see the Technical Support
Document (TSD) for additional
emissions inventory data including
projections by source category.
VOC AND NOX EMISSIONS INVENTORY BASELINE (2002) AND PROJECTIONS (2008 AND 2014)
2002
tons per day
Emissions
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Total VOC ....................................................................................................................................
Total NOX ....................................................................................................................................
52.44
60.87
2008
tons per day
47.53
49.01
2014
tons per day
44.61
36.89
As shown in the Table above, total
VOC and total NOX emissions for El
Paso County are expected to decrease
over the 10-year period of the
maintenance plan. Please see the TSD
for more information on EPA’s analysis
and review of the State’s methodologies,
modeling data and performance, etc. for
developing the base and attainment year
inventories. The State has demonstrated
that the future year 1997 8-hour ozone
emissions will be less than the 2002
base attainment year’s emissions. The
attainment inventories submitted by the
TCEQ for this area are consistent with
the criteria as discussed in the EPA
Maintenance Plan Guidance memo
dated May 20, 2005 and in other
guidance documents (please see the
docket for additional information). EPA
finds that the future emissions levels in
2008 and 2014 are expected to be less
than emissions levels in 2002.
(b) Maintenance Demonstration—The
primary purpose of a maintenance plan
is to demonstrate how an area will
continue to remain in compliance with
the 1997 ozone standard for the 10 year
period following the effective date of
designation as unclassifiable/
attainment. The end projection year is
10 years from the effective date of the
attainment designation for the 1997
ozone NAAQS, which for El Paso
County was June 15, 2004. Therefore,
the plan must demonstrate attainment
through 2014. As discussed in section
(a) Attainment Inventory above, Texas
has identified the level of ozone-forming
1 Monitors in El Paso County currently reflect
attainment of the 1-hour ozone NAAQS (2002–2004
data). The State, however, did not submit a request
for redesignation of the area to attainment for the
1-hour ozone standard and a section 175A
maintenance plan. Because the area was never
redesignated to attainment, the area must continue
to meet the 1-hour ozone serious area applicable
requirements (see 40 CFR 51.905(a)(3) and Section
IV).
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emissions in El Paso County that was
consistent with attainment of the
NAAQS for ozone in 2002. Texas has
projected VOC and NOX emissions for
the years 2008 and 2014 in El Paso
County and EPA finds that the future
emissions levels in those years are
expected to be below the emissions
levels in 2002. Please see the TSD for
more information on EPA’s review and
evaluation of the State’s methodologies,
modeling, inputs, etc., for developing
the 2008 and 2014 projected emissions
inventories.
This demonstration shows
compliance and maintenance of the
1997 8-hour ozone standard by assuring
that current and future emissions of
VOC and NOX remain at or below
attainment or baseline EI of 2002. The
year 2002 was chosen as the baseline
year because it is one of the most recent
three years (i.e., 2002, 2003, and 2004)
for which the El Paso area has clean air
quality data for the 8-hour ozone
standard. It includes future inventory
projected years for 2008 and 2014. The
plan identifies an ‘‘out year,’’ at least 10
years after the effective date of
classification. EPA finds that the future
emissions levels in 2008 and 2014 are
expected not to exceed the emissions
levels in 2002.
(c) Monitoring Network—The State of
Texas has committed in its maintenance
plan to continue operation of an
appropriate ozone monitoring network
and to work with EPA in compliance
with 40 CFR part 58 with regard to the
continued adequacy of such a network,
if additional monitoring is needed, and
when monitoring can be discontinued.
In El Paso County, there are six
monitoring sites, each of which has
monitored attainment with the 1997
ozone standard from 2002 through 2007.
The 1997 ozone NAAQS is 0.08 parts
per million based on the three-year
average of the fourth-highest daily
maximum 8-hour average ozone
concentration measured at each monitor
within an area. The 1997 ozone
standard is considered to be attained at
84 parts per billion (ppb). The three
most recent 8-hour ozone design values
for El Paso County are 76 ppb for 2005,
78 ppb for 2006, and 79 ppb for 2007.
(d) Contingency Plan—The section
110(a)(1) maintenance plan includes
contingency provisions to correct
promptly any violation of the 1997
ozone NAAQS that occurs. The
contingency indicator is based upon
monitoring data. The triggering
mechanism for activation of
contingency measures is a monitoring
violation of the 1997 8-hour ozone
standard. In the maintenance plan, if
contingency measures are triggered,
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TCEQ is committing to implement the
measures as expeditiously as practicable
but no longer than 24 months following
the trigger. Because the area can be
influenced by transport from outside the
area (e.g., emissions from Mexico), the
State will notify the EPA if the violation
was caused by actions outside TCEQ’s
jurisdiction.
The following contingency measures
are identified for implementation:
• Vent gas control.
• Control of emissions from degassing
or cleaning of stationary, marine, and
transport vehicles.
• Control of emissions from
petroleum dry cleaning systems.
• Other measures deemed appropriate
at the time because of advances in
control technologies.
These contingency measures and
schedules for implementation satisfy
EPA’s long-standing guidance on the
requirements of section 110(a)(1) of
Continued Attainment. Based on the
above, we find that the contingency
measures provided in the State’s El Paso
8-hour Ozone maintenance plan are
sufficient and meet the requirements of
section 110(a)(1) of the CAA.
(e) Verification of Continued
Attainment—Texas commits to track the
progress of the maintenance plan by
continuing to periodically update the EI.
It will compare the updated EIs against
the projected 2008 and 2014 EIs. In
addition, Texas commits to verify the 8hour ozone status through appropriate
ambient air quality monitoring, and to
quality assure air quality monitoring
data according to federal requirements.
IV. What Preconstruction Permitting
Program Applies in the Area?
As discussed previously in Section II,
although the monitoring data shows that
the area is meeting both the 1-hour and
8-hour ozone standards, the State did
not submit a request for redesignation of
the area to attainment for the
1-hour ozone standard before EPA
revoked this standard. Because the area
was never redesignated to attainment for
the 1-hour standard, the area must
continue to meet the applicable 1-hour
ozone serious area measures. These
mandatory measures include the serious
nonattainment area NSR permitting
program.
40 CFR 51.905(a)(3) 8-Hour NAAQS
Attainment/1-Hour NAAQS
Nonattainment of EPA’s Phase 1
implementation rule, however, provides
that the State may request that the
Nonattainment New Source Review
program no longer apply in an area such
as El Paso. If the State submits to EPA
a request to remove the NNSR program
from the El Paso Ozone SIP and replace
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it with the State’s prevention of
significant deterioration (PSD) SIP, a
section 110(l) demonstration would
need to be included with the request.
If Texas chooses to submit such a
request, the request must include all
necessary supporting elements, e.g., a
section 110(l) demonstration, any
necessary regulatory revisions. Please
note that the Texas PSD SIP
requirements would apply in the El
Paso ozone area only upon the effective
date of an EPA action approving the
removal from the El Paso ozone SIP of
the NNSR SIP program.
V. Final Action
Pursuant to section 110 of the Act,
EPA is approving the 1997 8-hour ozone
maintenance plan for El Paso County.
We have evaluated the State’s submittal
and have determined that it meets the
applicable requirements of the Clean Air
Act and EPA regulations, and is
consistent with EPA policy.
EPA is publishing this rule without
prior proposal because we view this as
a non-controversial amendment and
anticipate no adverse comments.
However, in the proposed rules section
of this Federal Register publication, we
are publishing a separate document that
will serve as the proposal to approve the
SIP revision if relevant adverse
comments are received. This rule will
be effective on March 16, 2009 without
further notice unless we receive adverse
comment by February 17, 2009. If we
receive adverse comments, we will
publish a timely withdrawal in the
Federal Register informing the public
that the rule will not take effect. We will
address all public comments in a
subsequent final rule based on the
proposed rule. We will not institute a
second comment period on this action.
Any parties interested in commenting
must do so now. Please note that if we
receive adverse comment on an
amendment, paragraph, or section of
this rule and if that provision may be
severed from the remainder of the rule,
we may adopt as final those provisions
of the rule that are not the subject of an
adverse comment.
VI. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is
not a ‘‘significant regulatory action’’ and
therefore is not subject to review by the
Office of Management and Budget. For
this reason and because this action will
not have a significant, adverse effect on
the supply, distribution, or use of
energy, this action is also not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355,
May 22, 2001). This action merely
approves state law as meeting Federal
requirements and imposes no additional
requirements beyond those imposed by
state law. Accordingly, the
Administrator certifies that this rule
will not have a significant economic
impact on a substantial number of small
entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this
rule approves pre-existing requirements
under state law and does not impose
any additional enforceable duty beyond
that required by state law, it does not
contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4).
This rule also does not have tribal
implications because it will not have a
substantial direct effect on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes,
as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). This
action also does not have Federalism
implications because it does 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 (64 FR 43255,
August 10, 1999). This action merely
approves a state rule implementing a
Federal standard, and does not alter the
relationship or the distribution of power
and responsibilities established in the
CAA. This rule also is not subject to
Executive Order 13045 ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it is not
economically significant. Executive
Order 12898 (59 FR 7629, February 16,
1994) establishes federal executive
policy on environmental justice.
Because this rule merely approves a
state rule implementing a Federal
standard, EPA lacks the discretionary
authority to modify today’s regulatory
decision on the basis of environmental
justice considerations.
In reviewing SIP submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the CAA. In this context, in the absence
of a prior existing requirement for the
State to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the CAA. Thus, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply. This rule does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5
U.S.C. section 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. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. section 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by March 16, 2009. 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 may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Ozone, Nitrogen dioxides, Reporting
and recordkeeping requirements,
Volatile organic compounds.
Dated: December 31, 2008.
Richard E. Greene,
Regional Administrator, Region 6.
■
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart SS—Texas
2. In § 52.2270, the second table in
paragraph (e) entitled ‘‘EPA Approved
Nonregulatory Provisions and QuasiRegulatory Measures in the Texas SIP,’’
is amended by adding an entry at the
end of the table to read as follows:
■
§ 52.2270
*
Identification of plan.
*
*
(e) * * *
*
*
EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP
Name of SIP provision
Applicable
geographic or
nonattainment area
*
*
El Paso County 1997 8-Hour Ozone Maintenance Plan.
*
El Paso, TX .............
3. Section 52.2275 is amended by
adding a new paragraph (g) to read as
follows:
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■
§ 52.2275 Control strategy and
regulations: Ozone.
*
*
*
VerDate Nov<24>2008
*
*
16:54 Jan 14, 2009
Jkt 217001
State
submittal/
effective date
EPA approval date
*
1/11/06
*
*
1/15/09 [Insert FR page number where
document begins].
(g) Approval. The Texas Commission
on Environmental Quality (TCEQ)
submitted a 1997 8-hour ozone NAAQS
maintenance plan for the area of El Paso
County on January 20, 2006. The area is
designated unclassifiable/attainment for
PO 00000
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Fmt 4700
Sfmt 4700
Comments
*
the 1997 8-hour ozone standard. EPA
determined this request for El Paso
County was complete on June 13, 2006.
The maintenance plan meets the
requirements of section 110(a)(1) of the
Clean Air Act and is consistent with
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EPA’s maintenance plan guidance
document dated May 20, 2005. The EPA
therefore approved the 1997 8-hour
ozone NAAQS maintenance plan for the
area of El Paso County on January 15,
2009.
[FR Doc. E9–708 Filed 1–14–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[FRL–8762–7]
Finding of Failure To Submit State
Implementation Plans Required by the
1999 Regional Haze Rule
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The EPA is taking a final
action finding that 37 states, the District
of Columbia, and the U.S. Virgin Islands
have failed to submit for EPA review
and approval State Implementation
Plans (SIPs) for improving visibility in
the nation’s national parks and
wilderness areas. Under the Clean Air
Act (CAA) and EPA’s implementing
regulations, states were required to
submit these SIPs to EPA by December
17, 2007. These SIPs must contain a
number of elements, including
importantly: For each mandatory Class
I federal area in a state, reasonable
progress goals providing for an
improvement in visibility for the most
impaired days and ensuring no
degradation in visibility for the least
impaired days; a long-term strategy for
improving visibility, including
enforceable emissions limitations, for
meeting the reasonable progress goals;
and Best Available Retrofit Technology
(BART) determinations for certain older
existing stationary sources. By this
action, the EPA is making a finding of
failure to submit for those states that
have not submitted a SIP or have
submitted a SIP that addresses only part
of the requirements.
DATES: Effective Date: This action is
effective on January 15, 2009.
FOR FURTHER INFORMATION CONTACT:
General questions concerning this
notice should be addressed to Mr. Todd
Hawes, Office of Air Quality Planning
and Standards, Air Quality Policy
Division, Mail Code: C539–04, 109 TW
Alexander Drive, Research Triangle
Park, NC 27709; telephone (919) 541–
5591.
For
questions related to a specific state
please contact the appropriate regional
office:
SUPPLEMENTARY INFORMATION:
Regional offices
States
Anne Arnold, Manager, Air Quality Planning Unit, EPA New England, I
Congress Street, Suite 1100 (CAQ), Boston, MA 02114–2023.
Raymond Werner, Chief, Air Programs Branch, EPA Region II, 290
Broadway, 25th Floor, New York, NY 10007–1866.
Christina Fernandez, Chief, Air Quality Planning Branch, EPA Region
III, 1650 Arch Street, Philadelphia, PA 19103–2187.
Dick A. Schutt, Chief, Air Planning Branch, EPA Region IV, Sam Nunn
Atlanta Federal Center, 61 Forsyth, Street, SW., 12th Floor, Atlanta,
GA 30303.
Jay Bortzer, Chief, Air Programs Branch, EPA Region V, 77 West
Jackson Street, Chicago, IL 60604.
Tom Diggs, Associate Director Air Programs, EPA Region VI, 1445
Ross Avenue, Dallas, TX 75202–2733.
Joshua A. Tapp, Chief, Air Programs Branch, EPA Region VII, 901
North 5th Street, Kansas City, Kansas 66101–2907.
Monica S. Morales, Unit Chief, Air Quality Planning Unit, EPA Region
VIII Air Program, 1595 Wynkoop St. (8P–AR), Denver, CO 80202–
1129.
Lisa Hanf, Chief, Air Planning Office, EPA Region IX, 75 Hawthorne
Street, San Francisco, CA 94105.
Mahbubul Islam, Manager, State and Tribal Air Programs, EPA Region
X, Office of Air, Waste, and Toxics, Mail Code OAQ–107, 1200 Sixth
Avenue, Seattle, WA 98101.
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island,
Vermont.
New Jersey, New York, Virgin Islands.
mstockstill on PROD1PC66 with RULES
Table of Contents
I. Background
A. Statutory and Regulatory Requirements
B. Consequences of Findings of Failure To
Submit
II. This Action
III. Statutory and Executive Order Reviews
A. Notice and Comment Under the
Administrative Procedure Act
B. Effective Date Under the Administrative
Procedure Act
C. Executive Order 12866: Regulatory
Planning and Review
D. Paperwork Reduction Act
E. Regulatory Flexibility Act (RFA)
F. Unfunded Mandates Reform Act
G. Executive Order 13132: Federalism
H. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
VerDate Nov<24>2008
16:54 Jan 14, 2009
Jkt 217001
District of Columbia, Maryland, Pennsylvania, Virginia.
Florida, Georgia.
Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin.
Oklahoma, New Mexico, Texas.
Kansas, Nebraska.
Colorado, Montana, North Dakota, South Dakota, Wyoming.
Arizona, California, Hawaii, Nevada.
Alaska, Idaho, Oregon, Washington.
I. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
J. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
K. National Technology Transfer
Advancement Act
L. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
M. Congressional Review Act
N. Judicial Review
I. Background
In CAA section 169A, Congress
declared as a national goal the
prevention of any future, and the
remedying of any existing, impairment
PO 00000
Frm 00100
Fmt 4700
Sfmt 4700
of visibility in mandatory class I Federal
areas (Class I areas) 1 which impairment
results from manmade air pollution.
EPA’s visibility regulations, codified at
40 CFR 51.300–51.309, require states to
develop regional haze SIPs with
measures necessary to make reasonable
progress towards remedying visibility
impairment in Class I areas. The
required SIP elements include: (1) For
states with one or more Class I areas, the
1 Areas designated as mandatory Class I Federal
areas are those national parks exceeding 6,000
acres, wilderness areas and national memorial parks
exceeding 5,000 acres, and all international parks
which were in existence on August 7, 1977.
Visibility has been identified as an important value
in 156 of these areas. See 40 CFR part 81, subpart
D.
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]]>Agencies
[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2387-2392]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-708]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2006-0357; FRL-8761-4]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Approval of the Section 110(a)(1) Maintenance Plan for the 1997
8-Hour Ozone Standard for El Paso County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action approving a revision to the
Texas State Implementation Plan (SIP). The revision consists of a
maintenance plan for El Paso County developed to ensure continued
attainment of the 1997 8-hour ozone National Ambient Air Quality
Standard (NAAQS) through the year 2014. The Maintenance Plan meets the
statutory and regulatory requirements, and is consistent with EPA's
guidance. EPA is approving the revision pursuant to section 110 of the
Federal Clean Air Act (CAA).
DATES: This rule is effective on March 16, 2009 without further notice,
unless EPA receives relevant adverse comment by February 17, 2009. If
EPA receives such comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2006-0357, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the on-line instructions for submitting comments.
EPA Region 6 ``Contact Us'' Web site: https://epa.gov/
region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please
also send a copy by e-mail to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2006-0357. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in 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.
The State submittal is also available for public inspection at the
State Air Agency listed below during official business hours by
appointment:
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Jeffrey Riley, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-8542; fax number
214-665-7263; e-mail address riley.jeffrey@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we''
``us'' or ``our'' is used, we mean the EPA.
Outline
I. What Is the Action EPA Is Taking?
II. What Is the Background for This Action?
III. What Is EPA's Analysis of the State's Submittal?
IV. What Preconstruction Permitting Program Applies in the Area?
V. Final Action
VI. Statutory and Executive Order Reviews
I. What Is the Action EPA Is Taking?
EPA is approving a revision to the Texas SIP. The revision is a
1997 8-hour ozone NAAQS maintenance plan for El Paso County. The State
of Texas, through the Texas Commission on Environmental Quality (TCEQ),
submitted the 1997 8-hour ozone NAAQS maintenance plan for El Paso
County to EPA on January 20, 2006. EPA is approving the maintenance
plan SIP revision for El Paso County as meeting the requirements of CAA
Section 110(a)(1) and EPA's regulations under 40 CFR 51.905(c) and (d)
and being consistent with EPA guidance. The maintenance plan is
designed to help keep the El Paso area in attainment for the 8-hour
ozone NAAQS through the year 2014.
II. What Is the Background for This Action?
Under the 1990 CAA Amendments, El Paso County continued to be
designated nonattainment for the 1-hour ozone NAAQS by operation of law
and was
[[Page 2388]]
classified as a serious nonattainment area (see 56 FR 56694). El Paso
County has unique considerations for ozone attainment planning due to
airshed contributions from Ciudad Juarez, Mexico. Under Section 179B of
the Act, the EPA approved the 1-hour ozone standard attainment
demonstration SIP for El Paso County on June 10, 2004 (see 69 FR
32450). TCEQ established to the EPA's satisfaction that implementation
of the plan would achieve timely attainment of the 1-hour ozone NAAQS
but for emissions emanating from Ciudad Juarez.
EPA also found the El Paso area would attain by November 15, 1996,
earlier than the attainment deadline of November 15, 1999. Due to this
finding, and the State's enforceable commitment to perform basin-wide
modeling whenever the necessary Juarez information became available,
the requirement for a post-1996 plan with an additional 9 percent of
reductions from November 1996 through November 1999 was deferred. This
approval of the section 179B attainment demonstration SIP and deferral
of the post-1996 plan was contingent; valid only as long as the area's
modeling data continued to show that the El Paso 1-hour ozone area
would be in attainment of the 1-hour NAAQS, but for emissions from
outside the United States.
TCEQ submitted all the other requirements for a 1-hour ozone
nonattainment area classified as serious and EPA approved them as
follows:
------------------------------------------------------------------------
Federal Register
Description Date of approval Notice
------------------------------------------------------------------------
15% Rate of Progress (ROP) November 10, 1998... 63 FR 62943.
Plan.
1990 base year Emissions November 8, 1994.... 59 FR 55589.
Inventory.
Periodic Inventory.......... Most Recent:
December 2, 2004
(letter from TCEQ).
Emissions Statements........ August 26, 1994..... 59 FR 44036.
Enhanced I/M................ August 22, 1994, 59 FR 43046.
revised.
November 14, 2001... 66 FR 57261.
VOC Reasonably Available March 7, 1995, 60 FR 12438.
Control Technology (RACT). revised.
October 1996........ 61 FR 55897.
January 26, 1999.... 64 FR 3841.
March 15, 1999...... 64 FR 12759.
December 22, 1999... 64 FR 71666.
September 5, 2000... 65 FR 53595.
December 20, 2000... 65 FR 79745.
July 16, 2001....... 66 FR 36913.
New Source Review (NSR)..... September 27, 1995.. 60 FR 49781.
Offset requirement.......... October 30, 1996.... 61 FR 55894.
Reid Vapor Pressure......... March 7, 1995....... 60 FR 12438.
Stage II Vapor Control...... April 15, 1994, 59 FR 17940.
revised.
March 29, 2005...... 70 FR 15769.
Clean Fuel Vehicle Program.. February 7, 2001.... 66 FR 9203.
Transportation Control November 10, 1998... 63 FR 62943.
Measures.
Enhanced Monitoring......... October 4, 1994..... 59 FR 50504.
Failure-to-meet ROP and May 22, 1997........ 62 FR 27964.
attainment contingency
measures.
NOX Waiver.................. November 28, 1994... 59 FR 60714.
------------------------------------------------------------------------
On April 30, 2004, EPA designated and classified areas for the 1997
8-hour ozone NAAQS (69 FR 23858), and published the final Phase 1 rule
for implementation of the 1997 ozone NAAQS (69 FR 23951). El Paso
County was designated as unclassifiable/attainment for the 1997 ozone
standard, effective June 15, 2004 (see 69 FR 23858). Consequently, this
attainment area is required to submit a 10-year maintenance plan under
section 110(a)(1) of the CAA and the Phase 1 rule. On May 20, 2005, EPA
issued guidance providing information regarding how a state might
fulfill the maintenance plan obligation established by the Act and the
Phase 1 rule (Memorandum from Lydia N. Wegman to Air Division
Directors, Maintenance Plan Guidance Document for Certain 8-hour Ozone
Areas Under Section 110(a)(1) of Clean Air Act, May 20, 2005). On
January 20, 2006, Texas submitted a 1997 8-hour ozone standard
maintenance plan for El Paso County to EPA. This SIP revision satisfies
the section 110(a)(1) CAA requirements for a plan that provides for
implementation, maintenance, and enforcement of the 1997 8-hour ozone
NAAQS in the El Paso County unclassifiable/attainment area.
On December 22, 2006, the United States Court of Appeals for the
District of Columbia Circuit issued an opinion that vacated EPA's Phase
1 Implementation Rule for the 1997 8-Hour Ozone Standard. (South Coast
Air Quality Management District. v. EPA, 472 F.3d 882 (DCCir. 2006).
Petitions for rehearing were filed with the Court, and on June 8, 2007,
the Court modified the scope of the vacatur of the Phase 1 rule. See
489 F.3d 1245 (DC Cir. 2007), cert. denied, 128 S.Ct. 1065 (2008). The
Court vacated those portions of the Rule that provide for regulation of
the 1997 8-hour ozone NAAQS nonattainment areas under Subpart 1 in lieu
of Subpart 2 and that allowed areas to revise their SIPs to no longer
require certain programs as they applied for purposes of the 1-hour
NAAQS; new source review, section 185 penalties, and contingency plans
for failure to meet RFP and attainment milestones. Consequently, the
Court's modified ruling does not alter any requirements under the Phase
1 implementation rule for the 1997 8-hour ozone NAAQS for maintenance
plans.
The Phase 1 Rule also provided that for an area like El Paso, any
outstanding obligations to provide SIP revisions concerning attainment
demonstration and Rate of Progress (ROP) Plan for the 1-hour ozone
NAAQS would no longer be required as long as the area continues to
maintain the 8-hour standard. If the 8-hour standard is violated prior
to the area having an approved 8-hour maintenance plan under section
110(a)(1), the area would be required to submit a SIP revision to
address the deferred post-1996 ROP plan. The area is not violating
either the 1-hour or 8-hour standard, and upon the effective date of
our approval of the 8-hour ozone maintenance plan, there no longer will
be a potential outstanding requirement
[[Page 2389]]
to submit a 1-hour ozone post-1996 ROP Plan for the El Paso 1-hour
ozone nonattainment area.\1\
---------------------------------------------------------------------------
\1\ Monitors in El Paso County currently reflect attainment of
the 1-hour ozone NAAQS (2002-2004 data). The State, however, did not
submit a request for redesignation of the area to attainment for the
1-hour ozone standard and a section 175A maintenance plan. Because
the area was never redesignated to attainment, the area must
continue to meet the 1-hour ozone serious area applicable
requirements (see 40 CFR 51.905(a)(3) and Section IV).
---------------------------------------------------------------------------
III. What Is EPA's Analysis of the State's Submittal?
On January 20, 2006, the State of Texas submitted a SIP revision
containing a maintenance plan for the 1997 ozone NAAQS for El Paso
County. The January revision provides a 1997 ozone NAAQS maintenance
plan, as required by section 110(a)(1) of the CAA and the provisions of
EPA's Phase 1 Implementation Rule (see 40 CFR 51.905(a)(4)). The
purpose of the plan is to ensure continued attainment and maintenance
of the 1997 ozone NAAQS in El Paso County.
In this action, EPA is approving the State's maintenance plan for
the 1997 ozone NAAQS for the area of El Paso County because EPA finds
that the TCEQ submittal meets the requirements of section 110(a)(1) of
the CAA, EPA's rule, and is consistent with EPA's guidance. As
required, the plan provides for continued attainment and maintenance of
the 1997 ozone NAAQS in the area for 10 years from the effective date
of the area's designation as unclassifiable/attainment for the 1997
ozone NAAQS, and includes components illustrating how the area will
continue in attainment of the 1997 ozone NAAQS and contingency
measures. Each of the section 110(a)(1) plan components is discussed
below.
(a) Attainment Inventory--The TCEQ developed comprehensive
inventories of VOC and NOX emissions from area, stationary,
and mobile sources using 2002 as the base year to demonstrate
maintenance of the 1997 ozone NAAQS for El Paso County. The year 2002
is an appropriate year for the TCEQ to base attainment level emissions
because States may select any one of the three years on which the 8-
hour attainment designation for the 1997 ozone NAAQS was based (2001,
2002, and 2003). The State's submittal contains the detailed inventory
data and summaries by source category. The 2002 base year inventory is
a good choice. Using the 2002 inventory as a base year reflects one of
the years used for calculating the air quality design values on which
the 8-hour ozone designation decisions were based. It also is one of
the years in the 2002-2004 period used to establish baseline visibility
levels for the regional haze program.
A practical reason for selecting 2002 as the base year emission
inventory is that Section 110(a)(2)(B) of the CAA and the Consolidated
Emissions Reporting Rule (67 FR 39602, June 10, 2002) require States to
submit emissions inventories for all criteria pollutants and their
precursors every three years, on a schedule that includes the emissions
year 2002. The due date for the 2002 emissions inventory is established
in the rule as June 2004. In accordance with these requirements, the
State of Texas compiles a statewide EI for point sources on an annual
basis. For stationary point sources, for El Paso County, the TCEQ
provided estimates for each commercial or industrial operation that
emits 50 tons or more per year of VOC or NOX in Appendix B
of the maintenance plan. This data is quality assured and entered into
the State of Texas Air Reporting System (STARS). Projections for 2008
and 2014 were developed using the August 2005 Texas Industrial
Production Index (TIPI) derived growth factors, supplemented with
Economic Growth Analysis System version 4.0 (EGAS 4.0). Stationary non-
point source data was grown by using EGAS 4.0, and On-road mobile
emissions of VOC and NOX were estimated using EPA's
MOBILE6.2 motor vehicle emissions factor computer model. Non-road
mobile projections were developed with EPA's NONROAD model, with the
exception of aircraft, airport ground support equipment, and
locomotives. For these categories, the 2002 Periodic Emissions
Inventory was grown to 2008 and 2014 using EGAS 4.0 growth factors, and
the Federal Aviation Administration's Dispersion Modeling System (EDMS)
model was used to develop aircraft emissions projections. EPA finds
that the TCEQ prepared the 2002 base year emissions inventories and
projected data to the years 2008 and 2014, for the area consistent with
EPA's long-established guidance memoranda.
The following table provides VOC and NOX emissions data
for the 2002 base attainment year inventory, as well as projected VOC
and NOX emission inventory data for the years 2008 and 2014.
Please see the Technical Support Document (TSD) for additional
emissions inventory data including projections by source category.
VOC and NOX Emissions Inventory Baseline (2002) and Projections (2008 and 2014)
----------------------------------------------------------------------------------------------------------------
2002 tons per 2008 tons per 2014 tons per
Emissions day day day
----------------------------------------------------------------------------------------------------------------
Total VOC....................................................... 52.44 47.53 44.61
Total NOX....................................................... 60.87 49.01 36.89
----------------------------------------------------------------------------------------------------------------
As shown in the Table above, total VOC and total NOX
emissions for El Paso County are expected to decrease over the 10-year
period of the maintenance plan. Please see the TSD for more information
on EPA's analysis and review of the State's methodologies, modeling
data and performance, etc. for developing the base and attainment year
inventories. The State has demonstrated that the future year 1997 8-
hour ozone emissions will be less than the 2002 base attainment year's
emissions. The attainment inventories submitted by the TCEQ for this
area are consistent with the criteria as discussed in the EPA
Maintenance Plan Guidance memo dated May 20, 2005 and in other guidance
documents (please see the docket for additional information). EPA finds
that the future emissions levels in 2008 and 2014 are expected to be
less than emissions levels in 2002.
(b) Maintenance Demonstration--The primary purpose of a maintenance
plan is to demonstrate how an area will continue to remain in
compliance with the 1997 ozone standard for the 10 year period
following the effective date of designation as unclassifiable/
attainment. The end projection year is 10 years from the effective date
of the attainment designation for the 1997 ozone NAAQS, which for El
Paso County was June 15, 2004. Therefore, the plan must demonstrate
attainment through 2014. As discussed in section (a) Attainment
Inventory above, Texas has identified the level of ozone-forming
[[Page 2390]]
emissions in El Paso County that was consistent with attainment of the
NAAQS for ozone in 2002. Texas has projected VOC and NOX
emissions for the years 2008 and 2014 in El Paso County and EPA finds
that the future emissions levels in those years are expected to be
below the emissions levels in 2002. Please see the TSD for more
information on EPA's review and evaluation of the State's
methodologies, modeling, inputs, etc., for developing the 2008 and 2014
projected emissions inventories.
This demonstration shows compliance and maintenance of the 1997 8-
hour ozone standard by assuring that current and future emissions of
VOC and NOX remain at or below attainment or baseline EI of
2002. The year 2002 was chosen as the baseline year because it is one
of the most recent three years (i.e., 2002, 2003, and 2004) for which
the El Paso area has clean air quality data for the 8-hour ozone
standard. It includes future inventory projected years for 2008 and
2014. The plan identifies an ``out year,'' at least 10 years after the
effective date of classification. EPA finds that the future emissions
levels in 2008 and 2014 are expected not to exceed the emissions levels
in 2002.
(c) Monitoring Network--The State of Texas has committed in its
maintenance plan to continue operation of an appropriate ozone
monitoring network and to work with EPA in compliance with 40 CFR part
58 with regard to the continued adequacy of such a network, if
additional monitoring is needed, and when monitoring can be
discontinued.
In El Paso County, there are six monitoring sites, each of which
has monitored attainment with the 1997 ozone standard from 2002 through
2007. The 1997 ozone NAAQS is 0.08 parts per million based on the
three-year average of the fourth-highest daily maximum 8-hour average
ozone concentration measured at each monitor within an area. The 1997
ozone standard is considered to be attained at 84 parts per billion
(ppb). The three most recent 8-hour ozone design values for El Paso
County are 76 ppb for 2005, 78 ppb for 2006, and 79 ppb for 2007.
(d) Contingency Plan--The section 110(a)(1) maintenance plan
includes contingency provisions to correct promptly any violation of
the 1997 ozone NAAQS that occurs. The contingency indicator is based
upon monitoring data. The triggering mechanism for activation of
contingency measures is a monitoring violation of the 1997 8-hour ozone
standard. In the maintenance plan, if contingency measures are
triggered, TCEQ is committing to implement the measures as
expeditiously as practicable but no longer than 24 months following the
trigger. Because the area can be influenced by transport from outside
the area (e.g., emissions from Mexico), the State will notify the EPA
if the violation was caused by actions outside TCEQ's jurisdiction.
The following contingency measures are identified for
implementation:
Vent gas control.
Control of emissions from degassing or cleaning of
stationary, marine, and transport vehicles.
Control of emissions from petroleum dry cleaning systems.
Other measures deemed appropriate at the time because of
advances in control technologies.
These contingency measures and schedules for implementation satisfy
EPA's long-standing guidance on the requirements of section 110(a)(1)
of Continued Attainment. Based on the above, we find that the
contingency measures provided in the State's El Paso 8-hour Ozone
maintenance plan are sufficient and meet the requirements of section
110(a)(1) of the CAA.
(e) Verification of Continued Attainment--Texas commits to track
the progress of the maintenance plan by continuing to periodically
update the EI. It will compare the updated EIs against the projected
2008 and 2014 EIs. In addition, Texas commits to verify the 8-hour
ozone status through appropriate ambient air quality monitoring, and to
quality assure air quality monitoring data according to federal
requirements.
IV. What Preconstruction Permitting Program Applies in the Area?
As discussed previously in Section II, although the monitoring data
shows that the area is meeting both the 1-hour and 8-hour ozone
standards, the State did not submit a request for redesignation of the
area to attainment for the 1-hour ozone standard before EPA revoked
this standard. Because the area was never redesignated to attainment
for the 1-hour standard, the area must continue to meet the applicable
1-hour ozone serious area measures. These mandatory measures include
the serious nonattainment area NSR permitting program.
40 CFR 51.905(a)(3) 8-Hour NAAQS Attainment/1-Hour NAAQS
Nonattainment of EPA's Phase 1 implementation rule, however, provides
that the State may request that the Nonattainment New Source Review
program no longer apply in an area such as El Paso. If the State
submits to EPA a request to remove the NNSR program from the El Paso
Ozone SIP and replace it with the State's prevention of significant
deterioration (PSD) SIP, a section 110(l) demonstration would need to
be included with the request.
If Texas chooses to submit such a request, the request must include
all necessary supporting elements, e.g., a section 110(l)
demonstration, any necessary regulatory revisions. Please note that the
Texas PSD SIP requirements would apply in the El Paso ozone area only
upon the effective date of an EPA action approving the removal from the
El Paso ozone SIP of the NNSR SIP program.
V. Final Action
Pursuant to section 110 of the Act, EPA is approving the 1997 8-
hour ozone maintenance plan for El Paso County. We have evaluated the
State's submittal and have determined that it meets the applicable
requirements of the Clean Air Act and EPA regulations, and is
consistent with EPA policy.
EPA is publishing this rule without prior proposal because we view
this as a non-controversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if relevant adverse
comments are received. This rule will be effective on March 16, 2009
without further notice unless we receive adverse comment by February
17, 2009. If we receive adverse comments, we will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. We will address all public comments in a
subsequent final rule based on the proposed rule. We will not institute
a second comment period on this action. Any parties interested in
commenting must do so now. Please note that if we receive adverse
comment on an amendment, paragraph, or section of this rule and if that
provision may be severed from the remainder of the rule, we may adopt
as final those provisions of the rule that are not the subject of an
adverse comment.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason and because this action will not have a significant, adverse
effect on the supply, distribution, or use of energy, this action is
also not subject to Executive Order 13211, ``Actions Concerning
Regulations That
[[Page 2391]]
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001). This action merely approves state law as meeting
Federal requirements and imposes no additional requirements beyond
those imposed by state law. Accordingly, the Administrator certifies
that this rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it does not contain
any unfunded mandate or significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does 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 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Because this rule
merely approves a state rule implementing a Federal standard, EPA lacks
the discretionary authority to modify today's regulatory decision on
the basis of environmental justice considerations.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. section 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. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 16, 2009. 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 may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Nitrogen dioxides,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: December 31, 2008.
Richard E. Greene,
Regional Administrator, Region 6.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Texas
0
2. In Sec. 52.2270, the second table in paragraph (e) entitled ``EPA
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the
Texas SIP,'' is amended by adding an entry at the end of the table to
read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(e) * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
Applicable State
Name of SIP provision geographic or submittal/ EPA approval date Comments
nonattainment area effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
El Paso County 1997 8-Hour El Paso, TX....... 1/11/06 1/15/09 [Insert FR page
Ozone Maintenance Plan. number where document
begins].
----------------------------------------------------------------------------------------------------------------
0
3. Section 52.2275 is amended by adding a new paragraph (g) to read as
follows:
Sec. 52.2275 Control strategy and regulations: Ozone.
* * * * *
(g) Approval. The Texas Commission on Environmental Quality (TCEQ)
submitted a 1997 8-hour ozone NAAQS maintenance plan for the area of El
Paso County on January 20, 2006. The area is designated unclassifiable/
attainment for the 1997 8-hour ozone standard. EPA determined this
request for El Paso County was complete on June 13, 2006. The
maintenance plan meets the requirements of section 110(a)(1) of the
Clean Air Act and is consistent with
[[Page 2392]]
EPA's maintenance plan guidance document dated May 20, 2005. The EPA
therefore approved the 1997 8-hour ozone NAAQS maintenance plan for the
area of El Paso County on January 15, 2009.
[FR Doc. E9-708 Filed 1-14-09; 8:45 am]
BILLING CODE 6560-50-P
