Air Plan Approval; Texas; Houston-Galveston-Brazoria Area Redesignation and Maintenance Plan for Revoked Ozone National Ambient Air Quality Standards; Section 185 Fee Program, 22093-22101 [2019-09943]
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: April 30, 2019.
Cheryl L Newton,
Acting Regional Administrator, Region 5.
[FR Doc. 2019–09921 Filed 5–15–19; 8:45 am]
BILLING CODE 6560–50–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R06–OAR–2018–0715; FRL–9993–56–
Region 6]
Air Plan Approval; Texas; HoustonGalveston-Brazoria Area
Redesignation and Maintenance Plan
for Revoked Ozone National Ambient
Air Quality Standards; Section 185 Fee
Program
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Pursuant to the Federal Clean
Air Act (CAA or the Act), the
Environmental Protection Agency (EPA
or Agency) is proposing to approve a
revision to the Texas State
Implementation Plan (SIP). The EPA is
proposing to determine that the
Houston-Galveston-Brazoria (HGB) area
is continuing to attain the 1979 1-hour
and 1997 8-hour ozone National
Ambient Air Quality Standards
(NAAQS or standard) and has met the
CAA criteria for redesignation.
Therefore, the EPA is proposing to
terminate all anti-backsliding
obligations for the HGB area for the 1hour and 1997 ozone NAAQS. The EPA
is also proposing to approve the plan for
maintaining the 1-hour and 1997 ozone
NAAQS through 2032 in the HGB area.
The EPA is also proposing to approve
the Severe Ozone Nonattainment Area
Failure to Attain Fee SIP revision to
address section 185 of the CAA for the
1-hour ozone NAAQS.
DATES: Written comments must be
received on or before June 17, 2019.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2018–0715, at https://
www.regulations.gov/ or via email to
paige.carrie@epa.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
SUMMARY:
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22093
other file sharing system). For
additional submission methods, please
contact Carrie Paige, 214–665–6521,
paige.carrie@epa.gov. For the full EPA
public comment policy, information
about CBI or multimedia submissions,
and general guidance on making
effective comments, please visit https://
www.epa.gov/dockets/commenting-epadockets.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov/ and in hard copy
at the EPA Region 6 office. While all
documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available at
either location (e.g., CBI).
FOR FURTHER INFORMATION CONTACT:
Carrie Paige, EPA Regional Office 6,
1445 Ross Avenue, Suite 700, Dallas, TX
75202, 214–665–6521, paige.carrie@
epa.gov. To inspect the hard copy
materials, please schedule an
appointment with Ms. Paige or Mr. Bill
Deese at 214–665–7253.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means the EPA.
I. Background
In 1979, under section 109 of the
CAA, the EPA established the primary
and secondary NAAQS for ozone at 0.12
parts per million (ppm) averaged over a
1-hour period (44 FR 8202, February 8,
1979).1 In 1997, we revised the primary
and secondary NAAQS for ozone to set
the acceptable level of ozone in the
ambient air at 0.08 ppm, averaged over
an 8-hour period (62 FR 38856, July 18,
1997).2 In 2008, we further revised the
primary and secondary ozone NAAQS
to 0.075 ppm, averaged over an 8-hour
period (73 FR 16436, March 27, 2008).3
For additional information on ozone,
please see the Technical Support
Document (TSD) in the docket for this
action and visit https://www.epa.gov/
ozone-pollution.
1 Primary standards are set to protect human
health while secondary standards are set to protect
public welfare. In addition, many reports of ozone
concentrations are given in parts per billion (ppb);
ppb = ppm × 1000. Thus, 0.12 ppm becomes 120
ppb or 124 ppb when rounding is considered.
2 The standard of 0.08 ppm becomes 0.084 ppm
or 84 ppb when rounding, based on the truncating
conventions in 40 CFR part 50, Appendix P.
3 In 2015, we again revised the primary and
secondary ozone NAAQS to 0.070 ppm, averaged
over an 8-hour period (73 FR 16436, March 27,
2008). This action does not address the HGB area
under the 2008 or 2015 ozone standards.
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Implementation of the 1-Hour and the
1997 8-Hour Ozone NAAQS
In 2004, we published a rule
governing implementation of the 1997
ozone NAAQS (Phase 1 Rule) (69 FR
23951, April 30, 2004). The Phase 1
Rule revoked the 1-hour ozone NAAQS
along with designations and
classifications for that standard and set
anti-backsliding provisions for the
transition from the 1-hour to the 1997 8hour standard. Anti-backsliding
provisions provide for controls that are
not less stringent than the controls
applicable to areas that were listed as
nonattainment for the revoked ozone
standards when the standards and
designations were revoked. EPA did not
include the section 185 fee requirement
for areas classified as Severe and
Extreme as an anti-backsliding
provision in the Phase 1 Rule.4 The
United States Court of Appeals for the
District of Columbia Circuit (D.C.
Circuit Court) ruled that the section 185
fee requirement needed to be retained as
an anti-backsliding provision under
EPA’s approach. South Coast Air
Quality Management District v. EPA,
472 F.3d 882 (DC Cir. 2006) (‘‘South
Coast I’’).
In 2015, EPA revoked the 1997 ozone
NAAQS and established antibacksliding requirements for the
revoked 1997 ozone NAAQS, as well as
some revisions to the anti-backsliding
requirements for the revoked 1-hour
standard, in our final rule for
implementing the 2008 ozone NAAQS
(known as the ‘‘SIP Requirements Rule,’’
40 CFR 51.1100, and 80 FR 12264). EPA
considered the South Coast I decision
on the Phase 1 Rule in developing the
SIP Requirements Rule for the 2008 8hour ozone standard.
The SIP Requirements Rule provided
that an area will be subject to the antibacksliding obligations for a revoked
NAAQS until we approve (1) a
redesignation to attainment for the area
for the 2008 ozone NAAQS or (2) a
‘‘redesignation substitute’’ for a revoked
NAAQS, which required an area to
demonstrate that it had attained the
revoked NAAQS due to permanent and
enforceable measures and would
maintain that standard for ten years (40
CFR 51.1105(b)(1)). In the SIP
Requirements Rule, EPA had created the
redesignation substitute procedure
because it believed it did not have the
4 The CAA section 185 fee program requirements
apply to ozone nonattainment areas classified as
Severe or Extreme that fail to attain by the required
attainment date. It requires each major stationary
source of VOC located in an area that fails to attain
by its attainment date to pay a fee to the state for
each ton of VOC the source emits in excess of 80
percent of a baseline amount.
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authority under the CAA to change the
designations of areas under a revoked
NAAQS, but wanted a means to
terminate anti-backsliding requirements
for an area that would otherwise be
eligible for a redesignation had the
standard not been revoked. 80 FR
12264, March 6, 2015 at 12304–05.
Though EPA created the redesignation
substitute based on the CAA
107(d)(3)(E) redesignation criteria, the
procedure did not require states to
demonstrate satisfaction of all five
criteria. Texas submitted and EPA
approved redesignation substitute
demonstrations for the HGB area for the
1-hour ozone NAAQS (80 FR 63429,
October 20, 2015) and the 1997 8-hour
ozone NAAQS (81 FR 78691, November
8, 2016), on the basis that the area was
attaining both standards based on
permanent and enforceable emission
reductions and had demonstrated that
the area would maintain each standard
for 10 years.
On February 16, 2018, the D.C. Circuit
Court vacated certain parts of the 2015
final rule for implementing the 2008
ozone NAAQS, including the
redesignation substitute provision,
based on the court’s conclusion that
those provisions were not consistent
with CAA requirements. South Coast
Air Quality Management District v. EPA,
882 F.3d 1138 (DC Cir. 2018) (‘‘South
Coast II’’). In that decision, the Court
held that the redesignation substitute
tool was not consistent with Clean Air
Act requirements because it failed to
satisfy all five of the statutory
requirements set forth in CAA section
107(d)(3)(E), which governs
redesignations from nonattainment to
attainment. Id. at 1152.
The HGB Area’s Designations and
Classifications Under the 1-Hour Ozone
NAAQS and the 1997 8-Hour Ozone
NAAQS
Under the 1-hour ozone NAAQS, the
HGB area, consisting of Brazoria,
Chambers, Fort Bend, Galveston, Harris,
Liberty, Montgomery and Waller
Counties, was designated as
nonattainment and classified as Severe17 with an attainment deadline of
November 15, 2007 (56 FR 56694,
November 6, 1991).5 The area did not
attain the 1-hour ozone standard by its
applicable attainment date of November
15, 2007 (June 19, 2012, 77 FR 36400).
This determination of failure to attain
by the HGB area’s attainment date
triggered the anti-backsliding
5 Under CAA section 181(a)(2) certain Severe 1hour ozone nonattainment areas like the HGB area
were given an attainment deadline of 17 years
rather than 15 years, thus the ‘‘Severe-17’’
classification.
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requirements for CAA section 185 and
contingency measures. The HGB area
subsequently attained the 1-hour ozone
NAAQS at the end of 2013 (80 FR
63429, October 20, 2015).
Under the 1997 ozone NAAQS, the
HGB area (the same eight counties
designated as nonattainment under the
1-hour ozone NAAQS) was designated
as nonattainment and classified as
Moderate with an attainment deadline
of no later than June 15, 2010. (69 FR
23858 and 69 FR 23951 April 30, 2004).
At the request of the Texas Governor we
reclassified the area to Severe and set an
attainment deadline of June 15, 2019 (73
FR 56983, October 1, 2008). The HGB
area attained the 1997 8-hour ozone
NAAQS at the end of 2014 (81 FR
78691, November 8, 2016).
The Texas Redesignation and
Maintenance Plan Submittal
On December 12, 2018, the Texas
Commission on Environmental Quality
(TCEQ or State) adopted the HGB
Redesignation Request and Maintenance
Plan SIP Revision for the 1-hour and
1997 ozone NAAQS and submitted this
package to EPA on December 14, 2018.
The SIP revision includes a request that
the EPA redesignate the HGB area to
attainment for the 1-hour and 1997
ozone NAAQS and provides a
maintenance plan that will ensure the
area remains in attainment of these
NAAQS through 2032. This submittal
addresses all five criteria of CAA section
107(d)(3)(E). As stated in their
submittal, the TCEQ developed this
redesignation request and maintenance
plan SIP revision to address the
uncertainty created by the court’s South
Coast II ruling.
We note that the Agency has
previously taken the position that when
it revokes a NAAQS in full, all the
associated designations and
classifications under that NAAQS are
also revoked, see 69 FR 23951, 23969–
70 (April 30, 2004), and the Agency no
longer has the authority to change those
designations, 80 FR 12296–97, 12304–
05 (March 6, 2015). However, in the SIP
Requirements Rule, EPA stated that it
was retaining the listing of the
designated areas in 40 CFR part 81
under the revoked 1997 NAAQS ‘‘for
the sole purpose of identifying the antibacksliding requirements that may
apply to the areas at the time of
revocation.’’ 80 FR 12296–97 (emphasis
added). The South Coast II court did not
address the Agency’s interpretation that
it lacks authority to alter an area’s
designation post-revocation of a
NAAQS. The South Coast II court
decision did hold that areas that were
nonattainment for a revoked standard at
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the time of revocation could only
terminate their obligations under that
standard by demonstrating that they
have met all five of the statutory
redesignation criteria, and thus could
not rely on the redesignation substitute
mechanism included in the ozone
implementation rule at issue. 882 F.3d
at 1152 (‘‘The Clean Air Act
unambiguously requires nonattainment
areas to satisfy all five of the conditions
under § 7407(d)(3)(E) before they may
shed controls associated with their
nonattainment designation.’’).
While the Court did not address the
issue of EPA’s authority to alter
designations after a standard has been
revoked, it did speak to EPA’s
interpretation that we lacked authority
to change a nonattainment area’s
classification under a revoked ozone
NAAQS. The Court held that the EPA is
required to continue to reclassify to a
higher classification, or bump up, areas
under the revoked 1997 NAAQS that
fail to attain on time, because, in the
court’s view, such reclassification is an
anti-backsliding control. South Coast II,
882 F.3d at 1147–48. The Court’s
holding on this point could be
interpreted to call into question EPA’s
interpretation that when a NAAQS and
its associated designations and
classifications are revoked in full, it no
longer retains the authority to alter
those designations and classifications.
EPA is proposing to find that Texas’
submittal meets all five criteria in
section 107(d)(3)(E), as required by the
court, for the 1-hour and 1997 ozone
NAAQS. EPA is therefore proposing to
terminate the anti-backsliding
obligations for the HGB area associated
with those NAAQS. We also take
comment on whether EPA has the
authority to alter an area’s
nonattainment area designation postrevocation, if only to fully clarify that
such area has satisfied all requirements
with respect to that revoked NAAQS.
We therefore propose in the alternative
that if EPA has such authority, the HGB
area be redesignated to attainment for
the revoked 1-hour and 1997 ozone
NAAQS. Regardless of whether
designations can be altered after
revocation, it is clear under South Coast
II that EPA has the authority to
terminate an area’s anti-backsliding
obligations under a revoked NAAQS if
that area meets the section 107(d)(3)(E)
criteria.
If finalized, this action will replace
our previous approvals of HGB
redesignation substitutes for the 1-hour
and 1997 8-hour ozone NAAQS. It
should be noted that we are not
proposing to alter our previous
conclusions that the HGB area has
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attained the 1-hour and 1997 8-hour
ozone NAAQS due to permanent and
enforceable emission reductions. Along
with taking comment on whether EPA
can alter an area’s nonattainment
designation, we are specifically taking
comment on whether as part of this
action, EPA has the authority to and
should revise the listings in Part 81 for
the HGB area for the 1-hour and 1997
ozone standards from nonattainment to
attainment in recognition that the area
meets the 107(d)(3)(E) criteria and it is
no longer necessary to identify the area
as one where anti-backsliding
obligations apply under these standards.
The Texas Severe Ozone Nonattainment
Area Failure To Attain Fee Submittal
TCEQ adopted the HGB Severe Ozone
Nonattainment Area Failure to Attain
Fee program for the 1-hour ozone
NAAQS (referred herein after as the
HGB alternative section 185 fee
equivalent program) on May 22, 2013. It
was submitted to EPA as a SIP revision
on November 27, 2018. The SIP revision
provided a new Subchapter B (Failure to
Attain Fee) in Chapter 101 (General Air
Quality Rule) of Title 30 of the Texas
Administrative Code (30 TAC).
II. Redesignation Criteria for Ozone
Nonattainment Areas
As explained earlier in this action, we
are proposing to terminate the antibacksliding requirements for the
revoked standards or redesignate to
attainment of the revoked standards,
which would also have the effect of
terminating the anti-backsliding
requirements, based on our conclusion
that the five criteria in CAA section
107(d)(3)(E) are met. These criteria are
the following: (1) We determine that the
area has attained the NAAQS; (2) we
fully approve the applicable
implementation plan for the area under
CAA section 110(k); (3) we determine
that the improvement in air quality is
due to permanent and enforceable
reductions in emissions resulting from
implementation of the applicable
implementation plan and Federal air
pollutant control regulations and other
permanent and enforceable reductions;
(4) we fully approve a maintenance plan
for the area as meeting the requirements
of CAA section 175A; and (5) we
determine the State containing such
area has met all requirements applicable
to the area under CAA section 110
(Implementation plans) and part D (Plan
Requirements for Nonattainment Areas).
EPA’s Evaluation of the Redesignation
and Maintenance Plan Submittal
Below is the summary of our
evaluation. Detailed information on our
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evaluation can be found in the TSD.
EPA normally evaluates these criteria as
the basis to redesignate an area to
attainment, therefore, EPA has here
conducted this analysis for purposes of
terminating the 1-hour and 1997 ozone
NAAQS anti-backsliding requirements
or in the alternative, for redesignation.
Has the area attained the 1-hour and
1997 8-hour ozone NAAQS and are the
improvements in air quality due to
permanent and enforceable reductions
in emissions? (Criteria 1 and 3)
In prior actions we determined that
the HGB area attained the 1-hour ozone
NAAQS (80 FR 63429, October 20,
2015) and 1997 8-hour ozone NAAQS
(80 FR 81466, December 30, 2015 and
81 FR 78691, November 8, 2016).
Quality-assured ambient air quality data
found in the Air Quality System (AQS)
database shows that the HGB area
attained the 1-hour ozone NAAQS in
2013 and attained the 1997 ozone
NAAQS in 2014. Quality-assured data
collected through 2017 and preliminary
data for 2018 indicate that the area has
continued to maintain both of these
standards (Table 1).6 We are proposing
to determine that the HGB area is
attaining the 1-hour and 1997 8-hour
ozone NAAQS.
TABLE 1—1-HOUR AND 1997 OZONE
DESIGN VALUES FOR THE HGB AREA
Years
2011–2013
2012–2014
2013–2015
2014–2016
2015–2017
Preliminary
.....................
.....................
.....................
.....................
.....................
2016–2018 ..
1-hour
ozone
design
value
121
111
120
120
120
110
ppb
ppb
ppb
ppb
ppb
ppb
1997
ozone
design
value
87
80
80
79
81
78
ppb.
ppb.
ppb.
ppb.
ppb.
ppb.
In prior actions, we determined that
the improvement in air quality in the
HGB area is due to permanent and
enforceable reductions in emissions (80
FR 63429, October 20, 2015, regarding
the 1-hour ozone NAAQS; 81 FR 78691,
November 8, 2016, regarding the 1997
ozone NAAQS). Texas identified State
and Federal control measures that were
approved in both the 1-hour and 1997
8-hour ozone attainment demonstration
6 At the time of this writing, the preliminary
ozone data for 2018 are posted on the TCEQ
website, but are not yet posted in AQS. See https://
www.tceq.texas.gov/cgi-bin/compliance/monops/
8hr_attainment.pl. For more information on AQS,
please visit https://www.epa.gov/aqs. Tables listing
the HGB monitoring sites with the fourth high 8hour ozone average concentrations and design
values and expected exceedances of the 1-hour
ozone NAAQS are provided in the TSD for this
rulemaking.
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(AD) SIPs that led to permanent and
enforceable emission reductions. The 1hour ozone AD SIP was approved on
September 6, 2006 (71 FR 52670). The
1997 ozone AD SIP was approved on
January 2, 2014 (79 FR 57).
Additionally, we have approved
Reasonable Further Progress SIPs for the
HGB area that document continuous
emission reductions due to permanent
and enforceable measures for the 1-hour
and 1997 8-hour ozone standards (70 FR
7407, February 14, 2005; 74 FR 18298,
April 22, 2009; and 79 FR 51, January
2, 2014). We propose that the HGB area
has attained the 1-hour and 1997 ozone
NAAQS due to permanent and
enforceable emission reductions.
Is the applicable implementation plan
for the area fully approved and has the
area met all applicable requirements
under CAA section 110 and part D?
(Criteria 2 and 5)
We are proposing to find that the HGB
area has met all requirements under
CAA section 110 (Implementation Plans
and part D Plan Requirements for
Nonattainment Areas) that are
applicable for purposes of redesignation
(CAA section 107(d)(3)(E)(v)), and that
those requirements have been fully
approved into the Texas SIP (CAA
section 107(d)(3)(E)(ii)).
110(a)(2) of the CAA contains the
general requirements for a SIP. Section
110(a)(2) provides that the SIP must
have been adopted by the state after
reasonable public notice and hearing,
and that, among other things, it must:
(1) Include enforceable emission
limitations and other control measures,
means or techniques necessary to meet
the requirements of the CAA; (2)
provide for establishment and operation
of appropriate devices, methods,
systems and procedures necessary to
monitor ambient air quality; (3) provide
for implementation of a source permit
program to regulate the modification
and construction of stationary sources
within the areas covered by the plan; (4)
include provisions for the
implementation of part C prevention of
significant deterioration (PSD) and part
D new source review (NSR) permit
programs; (5) include provisions for
stationary source emission control
measures, monitoring, and reporting; (6)
include provisions for air quality
modeling; and, (7) provide for public
planning and emission control rule
development.
Part D of the Clean Air Act establishes
the plan requirements for nonattainment
areas. Section 172(c) sets forth the basic
requirements of air quality plans for
states with nonattainment areas that are
required to submit plans on a schedule
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pursuant to section 172(b). Subpart 2 of
part D, which includes section 182 of
the CAA, establishes specific
requirements for ozone nonattainment
areas depending on the areas’
nonattainment classifications. The HGB
area was classified as Severe under both
the 1-hour and the 1997 ozone NAAQS
with identical area boundaries. As such,
the area is subject to the subpart 1
requirements contained in section
172(c) and section 176. The area is also
subject to the subpart 2 requirements
contained in section 182(d) (Severe
nonattainment area requirements). A
thorough discussion of the requirements
contained in section 172(c) and 182 can
be found in the General Preamble for
Implementation of Title I (57 FR 13498,
April 16, 1992).
Since Congress passed the CAA
Amendments in 1990, EPA has
consistently held the position that not
every requirement that an area is subject
to is applicable for purposes of
redesignation. See, e.g., September 4,
1992, Memorandum from John Calcagni
(‘‘Calcagni Memo’’) at 6.7 For example,
some of the Part D requirements, such
as demonstrations of reasonable further
progress, are designed to ensure that
nonattainment areas continue to make
progress toward attainment. EPA has
interpreted these requirements as not
‘‘applicable’’ for purposes of
redesignation under CAA section
107(d)(3)(E)(ii) and (v) because areas
that are applying for redesignation to
attainment are by definition already
attaining the standard. Id. Similarly,
EPA has long held that only those CAA
provisions that are relevant to an area’s
designation and classification as a
nonattainment area are ‘‘applicable’’ for
purposes of redesignation under CAA
section 107(d)(3)(E)(ii) and (v). For this
reason, SIP revisions that apply
regardless of whether an area is
designated nonattainment or attainment,
such as good neighbor plans required
under CAA section 110(a)(2)(D)(i)(I),
have not been considered ‘‘applicable’’
for purposes of redesignation. Finally,
some requirements may not be
applicable in this action given that both
of the NAAQS at issue in this notice
were revoked for all purposes, and,
post-revocation, the HGB area remained
subject only to the anti-backsliding
requirements identified by EPA in
7 ‘‘Procedures for Processing Requests to
Redesignate Areas to Attainment,’’ Memorandum
from John Calcagni, Director, Air Quality
Management Division, September 4, 1992. To view
the memo, please visit https://www.epa.gov/sites/
production/files/2016-03/documents/calcagni_
memo_-_procedures_for_processing_requests_to_
redesignate_areas_to_attainment_090492.pdf.
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regulation. See 40 CFR 51.1105(a);
51.1100(o).
However, for the revoked ozone
standards at issue here, over the past
three decades the State has submitted
numerous SIPs for the HGB area to
implement those standards, improve air
quality with respect to those standards,
and to address anti-backsliding
requirements for those standards.
Therefore, even though some of the HGB
area’s SIP-approved measures address
measures that are not requirements
‘‘applicable’’ for purposes of
redesignation under CAA section
107(d)(3)(E)(ii) and (v), such as CAA
section 182(b) reasonable further
progress, or address requirements that
were not retained for anti-backsliding,
such as section 182(a) emissions
inventories, we provide in the
accompanying TSD the list of SIPapproved measures the State has
adopted and EPA has approved for the
HGB area with respect to the revoked 1hour and 1997 ozone NAAQS. These
include: (1) Emissions inventories, (2)
emissions statements, (3) nonattainment
new source review programs, (4)
reasonably available control technology
for sources of both VOC and NOX, (5)
gasoline vapor recovery, (6) both basic
and enhanced vehicle inspection and
maintenance programs, (7) enhanced
ambient monitoring, (8) attainment and
reasonable further progress
demonstrations, (9) contingency
measures for failure to attain or make
reasonable further progress, (10) clean
fuel vehicle programs, and (11)
transportation control measures to offset
emissions from growth in vehicle miles
traveled.8 Texas also submitted SIPs to
address CAA section 110(a)(2) for the
1997 ozone NAAQS, which we
approved in prior actions.9 Similarly, as
part of this action, EPA is proposing
approval of an alternative 185 fee
equivalent program submitted by Texas
on November 27, 2018 to meet the
requirement in CAA section 182(d)(3).
Does Texas have a fully approved ozone
maintenance plan for the HGB area?
(Criterion 4)
Section 107(d)(3)(E)(iv) of the CAA
requires EPA to determine that the area
has a fully approved maintenance plan
pursuant to CAA section 175A. Under
CAA section 175A, the maintenance
plan must demonstrate continued
attainment of the NAAQS for at least 10
years after the Administrator approves a
redesignation to attainment. Eight years
8 The requirements can be found in CAA sections
182(a) through 182(d).
9 Approval of the section 110(a)(2) Infrastructure
SIP for the 1997 ozone standard for Texas is not
required for purposes of redesignation.
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after the redesignation, the state must
submit a revised maintenance plan
which demonstrates that attainment of
the NAAQS will continue for an
additional 10 years beyond the initial
10-year maintenance period. To address
the possibility of future NAAQS
violations, the maintenance plan must
contain contingency measures, as EPA
deems necessary, to assure prompt
correction of any future NAAQS
violation.
EPA’s interpretation of the elements
under CAA section 175A is contained in
the Calcagni Memo. Section
107(d)(3)(E)(iv) requires the
maintenance plan to be ‘‘fully
approved,’’ and the Calcagni Memo
provides that a state may submit the
redesignation request and maintenance
plan at the same time and rulemaking
on both may proceed on a parallel track.
The Calcagni Memo further provides
guidance on the content of a
maintenance plan, explaining that it
should address five requirements: (1)
An attainment emissions inventory; (2)
a maintenance demonstration; (3) an air
quality monitoring commitment; (4)
verification of continued attainment;
and (5) a contingency plan.
In conjunction with the redesignation
request submitted to EPA on December
14, 2018, TCEQ submitted a
maintenance plan to provide for the
ongoing attainment of the 1-hour and
1997 8-hour ozone NAAQS for at least
ten years following the effective date of
approval of the SIP revision. Our
evaluation of the five requirements
follows:
1. Attainment Inventory
The Texas submittal includes a 2014
base year emission inventory (EI) for
NOx and VOC. The TCEQ chose 2014 as
the base year because it is the first year
in which the HGB area is attaining both
the 1-hour and 1997 ozone NAAQS and
was the most recent periodic inventory
available to develop the attainment EI.
For reference, the previously approved
2011 EI (84 FR 3708, February 13, 2019)
and the proposed 2014 base year EI are
summarized (in tons per day or tpd) in
Table 2. The 2014 base year EI was
developed from the 2014 periodic EI, in
accordance with the Air Emissions
Reporting Requirements (see 80 FR
8787, February 19, 2015). We propose to
approve the 2014 base year EI. For more
information, see the TSD and the Texas
submittal.
TABLE 2—PREVIOUS EMISSION INVENTORIES AND SUBMITTED EMISSION INVENTORIES FOR THE HGB AREA (tpd)
NOX
Source type
2011 EI
approved at
84 FR 3708
VOC
2011 EI
approved at
84 FR 3708
2014 EI
submitted
2014 EI
submitted
Point .................................................................................................................
Area .................................................................................................................
Non-road Mobile ..............................................................................................
On-road Mobile ................................................................................................
108.33
21.15
142.44
188.02
95.11
30.99
100.61
131.15
95.99
304.90
49.78
80.73
77.56
301.97
37.51
65.04
Totals ........................................................................................................
459.94
357.86
531.40
482.08
The State’s submittal shows the
historical trends of NOX and VOC
emissions reduced from 2002 through
2014, the date by which the HGB area
reached attainment of both the 1-hour
and 1997 ozone NAAQS. The
attainment level emissions (provided in
tpd) are identified by source category
and summarized in Tables 3 and 4. The
attainment emissions inventory is
consistent with the Calcagni Memo.
2. Maintenance Demonstration
Texas has demonstrated maintenance
of the 1-hour and 1997 ozone NAAQS
through 2032 by providing EI
projections from 2014 through 2032 that
show emissions of NOX and VOC for the
HGB area remain at or below the
attainment year (2014) emission levels.
A maintenance demonstration need not
be based on modeling.10 The future year
Texas EIs presented are 2020, 2026, and
2032: 2032 is more than 10 years after
the expected effective date of this action
and 2020 and 2026 show emissions
between the attainment year and final
maintenance year. To generate the
future year EIs, Texas estimated the
amount of growth that will occur
between 2014 and the end of 2020,
2026, and 2032. Generally, the State
followed our guidelines in estimating
the growth in emissions.
TABLE 3—CHANGE IN NOX EMISSIONS FROM 2014 THROUGH 2032 FOR THE HGB AREA (tpd)
Year
Source Category
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2014
2020
2026
2032
Point .................................................................................................................
Area .................................................................................................................
On-road ............................................................................................................
Non-road ..........................................................................................................
95.11
30.99
131.15
100.61
128.77
32.52
75.63
75.77
128.94
33.84
49.47
63.65
129.12
34.64
38.22
61.60
Annual Totals: ...........................................................................................
357.86
312.69
275.90
263.58
10 See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001),
Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004).
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See also 66 FR 53094, 53099–53100 (October 19,
2001), 68 FR 25413, 25430–25432 (May 12, 2003).
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TABLE 4—CHANGE IN VOC EMISSIONS FROM 2014 THROUGH 2032 FOR THE HGB AREA (tpd)
Year
Source Category
2014
2020
2026
2032
Point .................................................................................................................
Area .................................................................................................................
On-road ............................................................................................................
Non-road ..........................................................................................................
77.56
301.97
65.04
37.51
77.56
319.18
49.16
29.84
77.56
327.46
37.82
28.79
77.56
351.20
28.59
29.71
Annual Totals: ...........................................................................................
482.08
475.74
471.63
487.06
Table 3 shows a net decrease in
emissions of NOX from 2014 to 2032 of
98.28 tpd. Table 4 shows a net increase
in emissions of VOC from 2014 to 2032
of 4.98 tpd, due to growth in area source
emissions. The projected increase in
VOC emissions is offset by the much
larger projected decrease in NOX
emissions. In the most recent attainment
demonstration submittal for the HGB
area, the TCEQ included in their
analysis that, excepting industrial
HRVOC, which are not expected to
increase, NOX emissions are responsible
for more ozone creation than VOC
emissions from area and mobile source
groups.11 In its submittal, Texas notes
that photochemical modeling and data
analysis for the HGB area consistently
show that reducing NOX emissions is
expected to be at least as effective as
reducing VOC emissions in lowering the
ozone design value. This is further
supported by the emission inventories
showing consistent decreases in NOX
emissions in the HGB area with
concurrent reductions in Ozone levels.
Therefore, Texas has offset the growth
in VOC emissions with far greater NOX
emissions reductions. The projected
reduction in NOX emissions and
projected growth in VOC emissions,
expressed in tpd and as a percentage,
are shown in Table 5.
TABLE 5—MAINTENANCE DEMONSTRATION 12
NOX
(tpd)
Description
a. 2014 Emissions Inventories (from Tables 2 and 3) ............................................................................................
b. 2032 Emissions Inventories (from Tables 2 and 3) ............................................................................................
c. Change in EI from 2014 to 2032 (line b minus line a) ........................................................................................
d. Percent change in EI from 2014 to 2032 ............................................................................................................
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NOX emissions are projected to
decrease by approximately 94 tpd by
2032, which is about 26 percent less
than the 2014 NOX emission levels.
VOC emissions are projected to increase
by approximately 5 tpd by 2032, which
is about 1 percent higher than the 2014
VOC emission levels. Because the
projected reduction in NOX emission
(26%) is far greater than the projected
increase in VOC emissions (1%), we
propose that the TCEQ has offset the
growth in VOC emissions with NOX
emissions reductions and demonstrated
maintenance of the 1-hour and 1997
ozone NAAQS through 2032. We note
that the projections for the on-road
mobile source inventory for 2032, which
TCEQ submitted as motor vehicle
emissions budgets, are consistent with
maintenance of the 1-hour and 1997
NAAQS.
3. Monitoring Network
The TCEQ has committed to continue
to maintain an air monitoring network
to meet regulatory requirements in the
11 The mobile source groups described by the
TCEQ are on-road and non-road, including elevated
ships. See the Texas Attainment Demonstration for
the HGB Ozone Nonattainment Area (Docket ID:
EPA–R06–OAR–2017–0053): HGB attainment SIP
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HGB area to ensure maintenance of the
1-hour and 1997 ozone standards. Texas
has committed to meet monitoring
requirements and continue to quality
assure monitoring data in accordance
with 40 CFR part 58, and to enter all
data into AQS in accordance with
Federal guidelines through the end of
the maintenance period in 2032.
4. Verification of Continued Attainment
The TCEQ has the legal authority to
enforce and implement the
requirements of the maintenance plan
for the HGB area. This includes the
authority to adopt, implement, and
enforce any subsequent emission
control measures determined as
necessary to correct any future failure to
maintain the 1-hour and 1997 ozone
NAAQS.
Verification of continued attainment
is accomplished through operation of
the ambient ozone monitoring network
and the periodic update of the area’s EI.
The TCEQ has committed to continue
monitoring ozone levels according to an
Appendix C pgs. 37–39 and 62 (Docket ID: EPA–
R06–OAR–2017–0053–0004); Manvel Croix Source
Apportionment spreadsheet (Docket ID: EPA–R06–
OAR–2017–0053–0008), and numerous other source
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357.86
263.58
¥94.28
¥26.34%
VOC
(tpd)
482.08
487.06
+ 4.98
+ 1.03%
EPA-approved monitoring plan. Should
changes in the location of an ozone
monitor become necessary, TCEQ will
work with EPA to ensure the adequacy
of the monitoring network. The TCEQ
has further committed to continue to
quality assure the monitoring data to
meet the requirements of 40 CFR part 58
and enter all data into AQS in
accordance with Federal guidelines.
In addition, to track future levels of
emissions, TCEQ will continue to
develop and submit to EPA updated EIs
for all source categories at least once
every three years, consistent with the
requirements of 40 CFR part 51, subpart
A, and in 40 CFR 51.122. The most
recent triennial inventory for Texas was
compiled for 2014. Point source
facilities covered by the Texas emission
statement rule will continue to submit
VOC and NOX emissions on an annual
basis as required by 30 TAC Chapter
101.10(d).
apportionment spreadsheets in the same Docket. 83
FR 24446, May 29, 2018.
12 See our TSD for more detail on the State’s
submitted maintenance demonstration.
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5. Contingency Plan
Section 175A of the CAA requires that
the state must adopt a maintenance
plan, as a SIP revision, that includes
such contingency measures as EPA
deems necessary to assure that the state
will promptly correct a violation of the
NAAQS that occurs after redesignation
of the area to attainment of the NAAQS.
The maintenance plan must identify:
The contingency measures to be
considered and, if needed for
maintenance, adopted and
implemented; a schedule and procedure
for adoption and implementation; and a
time limit for action by the state. The
state should also identify specific
indicators to be used to determine when
the contingency measures need to be
considered, adopted, and implemented.
The maintenance plan must include a
commitment that the state will
implement all measures with respect to
the control of the pollutant that were
contained in the SIP before
redesignation of the area to attainment
in accordance with section 175A(d) of
the CAA.
As required by CAA section 175A,
Texas has proposed a contingency plan
for the HGB area to address future
violations of the 1-hour and/or 1997
ozone NAAQS. The contingency
measures proposed by the TCEQ
include, but are not limited to, the
following:
• Limit VOC emissions from dryers,
filtration systems, and fugitive
emissions from petroleum dry cleaning
facilities.
• Decrease in the rule threshold
triggering applicability to requirements,
such as control and inspection
requirements, for controlling flash
emissions from fixed roof crude oil and
condensate storage tanks.
• Require the application of low
solar-absorptance paint to VOC storage
tanks.
• Implement enhanced leak detection
and repair program measures.
• Decrease the rule threshold
triggering applicability to requirements
for storage tanks, transport vessels, and
marine vessels.
• Regulate pneumatic controllers
used in oil and natural gas production,
transmission of oil and natural gas, and
natural gas processing.
The maintenance plan provides that a
monitored and certified violation of the
NAAQS triggers the requirement to
consider, adopt, and implement the
plan’s contingency measures. The
schedule and procedure for adoption
and implementation by the State is no
longer than 18 months following a
monitored and certified violation of the
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NAAQS. Given the estimated emissions
in the Houston nonattainment area, we
believe the proposed contingency
measures are sufficient to address any
potential future violations.
EPA is proposing that the TCEQ’s
maintenance plan adequately addresses
the five basic components of a
maintenance plan: Attainment
inventory, maintenance demonstration,
monitoring network, verification of
continued attainment, and a
contingency plan. Thus, the
maintenance plan SIP revision proposed
by the TCEQ meets the requirements of
CAA section 175A and EPA proposes to
approve it as a revision to the Texas SIP.
III. Motor Vehicle Emissions Budgets
The HGB maintenance plan
submission includes motor vehicle
emissions budgets (MVEBs) for the last
year of the maintenance plan (in this
case 2032). MVEBs are used to conduct
regional emissions analyses for
transportation conformity purposes. See
40 CFR 93.118. The MVEB is the portion
of the total allowable emissions in the
maintenance demonstration that is
allocated to highway and transit vehicle
use and emissions. See 40 CFR 93.101.
As part of the interagency consultation
process on setting MVEBs, TCEQ held
discussions to determine what years to
set MVEBs for the HGB area
maintenance plan.
We note the HGB area already has
adequate NOX and VOC MVEBs for the
2008 ozone NAAQS. Therefore, the HGB
area can continue to make conformity
determinations for transportation plans,
transportation improvement programs,
and projects based on budgets for the
2008 ozone NAAQS as it has been
doing, according to the requirements of
the transportation conformity
regulations at 40 CFR part 93.13 The
Houston area currently demonstrates
conformity to the more stringent 2008
and 2015 ozone NAAQS using MVEBs
contained in the area’s 2008 ozone
NAAQS Reasonable Further Progress
SIP revision (82 FR 26091, June 6,
2017). Therefore, EPA is not approving
the submitted 2032 NOX and VOC
MVEBs for transportation conformity
purposes. As noted previously, EPA is
proposing to find that the projected
emissions inventory which reflects
these budgets are consistent with
maintenance of the 1-hour and 8-hour
standard.
13 Transportation Conformity Guidance for the
South Coast II Court Decision, EPA–420–B–18–050.
November 2018, available on EPA’s web page at
https://www.epa.gov/state-and-localtransportation/policy-and-technical-guidance-stateand-local-transportation.
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22099
IV. Evaluation of the HGB Alternative
Section 185 Fee Equivalent Program
The CAA section 185 fee program
requirements apply to ozone
nonattainment areas classified as Severe
or Extreme that fail to attain by the
required attainment date. It requires
each major stationary source of VOC
located in an area that fails to attain by
its attainment date to pay a fee to the
state for each ton of VOC the source
emits in excess of 80 percent of a
baseline amount. CAA section 182(f)
extends the application of this provision
to major stationary sources of NOX. In
1990, the CAA set the fee as $5,000 per
ton of VOC and NOX emitted, which is
adjusted for inflation, based on the
Consumer Price Index, on an annual
basis. For areas subject to section 185,
fee collection is for each calendar year
beginning after the attainment date,
until the area is redesignated to
attainment.14 More information on CAA
section 185 is provided in our TSD.
Because the HGB area failed to attain
the 1-hour ozone NAAQS by the
applicable attainment deadline of
November 15, 2007, the area became
subject to section 185 for that
standard.15
On January 5, 2010 EPA issued the
memo ‘‘Guidance on Developing Fee
Programs Required by Clean Air Act
Section 185 for the 1-hour Ozone
NAAQS.’’ 16 The guidance discussed
options for the EPA approval of SIPs
that included an equivalent alternative
program to the section 185 fee program
specified in the CAA when addressing
anti-backsliding for a revoked ozone
NAAQS under the principles of section
172(e). Section 172(e) requires EPA to
develop regulations to ensure that
controls in a nonattainment area are
‘‘not less stringent’’ than those that
applied to the area before EPA revised
a NAAQS to make it less stringent.
Although section 172(e) does not
directly apply where EPA has
strengthened the NAAQS, as it did in
1997, 2008, and 2015, EPA has applied
the principles in section 172(e) when
revoking less stringent ozone standards.
EPA allows a state to adopt an
14 Section 185 is an anti-backsliding requirement
which would be terminated upon a showing that
the five criteria of 107(d)(3)(E) are met. This action,
if finalized, will terminate the requirement for a
section 185 fee program.
15 Although the HGB area is also designated and
classified as Severe for the 1997 8-hour ozone
NAAQS, the section 185 fee program was not
triggered for that standard, because the area attained
the 1997 ozone NAAQS well before the Severe area
attainment deadline of June 15, 2019. See 80 FR
81466, December 30, 2015.
16 See https://www.epa.gov/sites/production/files/
2015-09/documents/1hour_ozone_nonattainment_
guidance.pdf.
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alternative to CAA section 185 if the
state demonstrates that the proposed
alternative program is ‘‘not less
stringent’’ than the direct application of
CAA section 185. EPA has previously
stated that one way to demonstrate this
is to show that the alternative program
provides equivalent or greater fees and/
or emissions reductions directly
attributable to the application of CAA
section 185. Although the 2010
guidance was vacated and remanded by
the D.C. Circuit on procedural grounds,
the court did not prohibit alternative
programs, stating ‘‘neither the statute
nor our case law obviously precludes
that alternative’’ (NRDC v. EPA, 643
F.3d 311 (D.C. Cir. 2011)). EPA
approved alternative 185 fee equivalent
programs in California for the San
Joaquin Valley (77 FR, 50021, August
20, 2012) and the South Coast Air
Quality Management District covering
two 1-hour ozone nonattainment areas:
(1) Los Angeles-South Coast Air Basin
Area and (2) Southeast Desert Modified
Air Quality Management Area (77 FR
74372, December 14, 2012) (upheld in
Natural Res. Def. Council v. EPA, 779
F.3d 1119 (9th Cir. 2015)). More
recently we approved an alternative 185
fee equivalent program for the New
York portion of the New York-Northern
New Jersey-Long Island 1-hour ozone
nonattainment area (84 FR 12511, April
2, 2019).
The Texas program: (1) Calculates the
amount of fees that major sources would
pay each year; (2) offsets the major
source fees with fees collected in the
HGB area for programs designed to
reduce emissions from mobile sources;
and (3) allows for major sources to
request to fulfill all or part of their fee
obligations with emission credits,
emission allowances or a supplemental
emission reduction project (if there are
still major source fee obligations after
offsetting with mobile source fees). The
fees collected from mobile sources in
the HGB area fund emission reductions
through the (1) Texas Emissions
Reduction Plan, (2) Low-Income Vehicle
Repair Assistance, Retrofit, and
Accelerated Vehicle Repair Program
(LIRAP) and (3) Local Initiative Project
program. The Texas Emission Reduction
Plan provides money to help replace,
repower or retrofit diesel equipment to
accelerate the introduction of cleaner
diesel equipment. LIRAP provides
money to assist owners with the repair
or replacement of automobiles that fail
the Inspection and Maintenance (I/M)
program and that otherwise would
receive a waiver and not be repaired.
The Local Initiative Project program
provides money for projects such as
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improved enforcement of the I/M
program. These programs all provide for
emission reductions in the HGB area in
the hard to reach mobile source sector.
In a letter dated December 4, 2018,
TCEQ provided a reconciliation report
summarizing the section 185 fee
equivalency demonstration. The TCEQ
report found that the fees collected for
emission reduction projects in the HGB
area more than fully offset the fees that
would have been collected under a
direct application of section 185 during
the years 2012 to 2016.17
A detailed evaluation of the Texas
section 185 alternative fee program is
included in the TSD for this action.
Based on our evaluation we are
proposing to find that the Texas
program proposed for approval is an
equivalent section 185 fee program as it
provides greater or equivalent fees and
emission reductions than those that
would be provided by major stationary
sources alone. Thus, we are also
proposing to approve 30 TAC Chapter
101, Subchapter B (Failure to Attain
Fee) sections 101.100–101.102, 101.104,
101.106–101.110, 101.113, 101.116,
101.117, 101.118(a)(1), 101.118(a)(3)
and 101.120–101.122. At this time, we
are not taking action on 30 TAC sections
101.118(a)(2) and 101.118(b).18
V. Proposed Action
We are proposing to determine that
the HGB area is continuing to attain the
1-hour and 1997 8-hour ozone NAAQS,
and that Texas has met the CAA criteria
for redesignation of this area. Therefore,
the EPA is proposing to terminate all
anti-backsliding obligations for the HGB
area for the 1-hour and 1997 ozone
NAAQS. The EPA is also proposing to
approve 30 TAC sections 101.100–
101.102, 101.104, 101.106–101.110,
101.113, 101.116, 101.117,
101.118(a)(1), 101.118(a)(3) and
101.120–101.122 as an alternative 185
fee equivalent program. We are also
proposing to approve the plan for
maintaining the 1-hour and 1997 ozone
NAAQS through 2032 in the HGB area.
VI. Incorporation by Reference
In this action, we are proposing to
include in a final rule regulatory text
17 Before the South Coast II decision our approval
of the HGB 1-hour redesignation substitute ended
the obligation for a section 185 fee program in late
2015 (80 FR 63429, October 20, 2015).
18 Section 30 TAC 101.118(a)(2) allows for ending
the failure to attain fee program through a finding
of attainment by EPA. Section 30 TAC 101.118(b)
allows for placing fee payment into abeyance if
three consecutive years of quality-assured data
resulting in a design value that did not exceed the
1-hour ozone standard, or a demonstration
indicating that the area would have attained by the
attainment date but for emissions emanating from
outside the United States, are submitted to the EPA.
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that includes incorporation by
reference. In accordance with the
requirements of 1 CFR 51.5, we are
proposing to incorporate by reference
revisions to the Texas regulations as
described in the Proposed Action
section. We have made, and will
continue to make, these documents
generally available electronically
through www.regulations.gov and in
hard copy at the EPA Region 6 office
(please contact the person identified in
the FOR FURTHER INFORMATION CONTACT
section of this preamble for more
information).
VII. Statutory and Executive Order
Reviews
The actions in this proposal terminate
statutory and regulatory requirements
associated with prior federal revoked
ozone standards and do not impose any
additional regulatory requirements on
sources beyond those imposed by state
law. Therefore, this action does not in
and of itself create any new
requirements. Moreover, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the CAA. For that reason,
these actions:
• Are not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Are not an Executive Order 13771
(82 FR 9339, February 2, 2017)
regulatory action because they are not
‘‘significant regulatory actions’’ under
Executive Order 12866;
• Do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Do 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);
• Do not have federalism implications
as specified in Executive Order 13132
(64 FR 43255, August 10, 1999);
• Are not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
E:\FR\FM\16MYP1.SGM
16MYP1
Federal Register / Vol. 84, No. 95 / Thursday, May 16, 2019 / Proposed Rules
• Are not a significant regulatory
action subject to Executive Order 13211
(66 FR 28355, May 22, 2001);
• Are not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Do not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the proposed rule does
not have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects
40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Ozone.
40 CFR Part 81
Environmental protection, Air
pollution control.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 9, 2019.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2019–09943 Filed 5–15–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 81
[EPA–R07–OAR–2019–0190; FRL–9993–27–
Region 7]
khammond on DSKBBV9HB2PROD with PROPOSALS
Approval of Missouri Air Quality
Implementation Plans; Redesignation
of the Missouri Portion of the St.
Louis-St. Charles-Farmington, MO-IL
2012 PM2.5 Unclassifiable Area
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
request from the Missouri Department of
Natural Resources (MoDNR) to
redesignate the Missouri portion of the
SUMMARY:
VerDate Sep<11>2014
16:42 May 15, 2019
Jkt 247001
St. Louis-St. Charles-Farmington, MO-IL
fine particulate matter (PM2.5)
unclassifiable area (‘‘St. Louis area’’ or
‘‘area’’) to unclassifiable/attainment for
the 2012 annual fine particulate matter
(PM2.5) National Ambient Air Quality
Standard (NAAQS). The Missouri
portion of the St. Louis area comprises
of the City of St. Louis and the counties
of Franklin, Jefferson, St. Charles, and
St. Louis. The EPA now has sufficient
data to determine that the St. Louis area
is in attainment of the 2012 PM2.5
NAAQS. Therefore, EPA is proposing to
approve the state’s December 11, 2018
request, and redesignate the area to
unclassifiable/attainment for the 2012
PM2.5 NAAQS based upon valid,
quality-assured, and certified ambient
air monitoring data showing that the
PM2.5 monitors in the area are in
compliance with the 2012 PM2.5
NAAQS. The EPA will address the
Illinois portion of the St. Louis area in
a separate rulemaking action.
Comments must be received on
or before June 17, 2019.
DATES:
22101
I. Written Comments
Submit your comments, identified by
Docket ID No. EPA–R07–OAR–2019–
0190, at https://www.regulations.gov.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets.
Submit your comments,
identified by Docket ID No. EPA–R07–
OAR–2019–0190, to https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Instructions: All submissions received
must include the Docket ID No. for this
rulemaking. Comments received will be
posted without change to https://
www.regulations.gov/, including any
personal information provided. For
detailed instructions on sending
comments and additional information
on the rulemaking process, see the
‘‘Written Comments’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
The EPA is proposing to approve
MoDNR’s request to change the
designation of the Missouri portion of
the St. Louis area from unclassifiable to
unclassifiable/attainment for the 2012
PM2.5 NAAQS, based on quality-assured
and certified monitoring data for 2015–
2017, and proposing to approve that the
Missouri portion of the St. Louis area
has met the requirements for
redesignation under section 107(d)(3)(E)
of the CAA.
FOR FURTHER INFORMATION CONTACT:
III. Background Information
Lachala Kemp, Environmental
Protection Agency, Air Planning and
Development Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at
(913) 551–7214, or by email at
kemp.lachala@epa.gov.
The Clean Air Act (CAA) establishes
a process for air quality management
through the establishment and
implementation of the NAAQS. Upon
promulgation of a new or revised
NAAQS, section 107(d)(1)of the CAA
requires EPA to designate areas as
attainment, nonattainment, or
unclassifiable. On December 14, 2012,
the EPA promulgated a revised primary
annual PM2.5 NAAQS to provide
increased protection of public health
and welfare from fine particle pollution
(78 FR 3086, January 15, 2013). In that
action, the EPA revised the primary
annual PM2.5 standard, strengthening it
from 15.0 micrograms per cubic meter
(mg/m3) to 12.0 (mg/m3), which is
attained when the three-year average of
the annual arithmetic means does not
exceed 12.0 (mg/m3). The EPA
ADDRESSES:
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. Written Comments
II. What is being addressed in this document?
III. Background Information
IV. What are the criteria for redesignating an
area from unclassifiable to
unclassifiable/attainment?
V. What is the EPA’s rationale for proposing
to redesignate the area?
VI. Proposed Action
VII. Statutory and Executive Order Reviews
PO 00000
Frm 00027
Fmt 4702
Sfmt 4702
II. What is being addressed in this
document?
E:\FR\FM\16MYP1.SGM
16MYP1
]]>Agencies
[Federal Register Volume 84, Number 95 (Thursday, May 16, 2019)]
[Proposed Rules]
[Pages 22093-22101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09943]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R06-OAR-2018-0715; FRL-9993-56-Region 6]
Air Plan Approval; Texas; Houston-Galveston-Brazoria Area
Redesignation and Maintenance Plan for Revoked Ozone National Ambient
Air Quality Standards; Section 185 Fee Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA or Agency) is proposing to approve
a revision to the Texas State Implementation Plan (SIP). The EPA is
proposing to determine that the Houston-Galveston-Brazoria (HGB) area
is continuing to attain the 1979 1-hour and 1997 8-hour ozone National
Ambient Air Quality Standards (NAAQS or standard) and has met the CAA
criteria for redesignation. Therefore, the EPA is proposing to
terminate all anti-backsliding obligations for the HGB area for the 1-
hour and 1997 ozone NAAQS. The EPA is also proposing to approve the
plan for maintaining the 1-hour and 1997 ozone NAAQS through 2032 in
the HGB area. The EPA is also proposing to approve the Severe Ozone
Nonattainment Area Failure to Attain Fee SIP revision to address
section 185 of the CAA for the 1-hour ozone NAAQS.
DATES: Written comments must be received on or before June 17, 2019.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2018-0715, at https://www.regulations.gov/ or via email to
[email protected]. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact Carrie Paige, 214-665-
6521, [email protected]. For the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov/ and in hard copy at the EPA
Region 6 office. While all documents in the docket are listed in the
index, some information may be publicly available only at the hard copy
location (e.g., copyrighted material), and some may not be publicly
available at either location (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Carrie Paige, EPA Regional Office 6,
1445 Ross Avenue, Suite 700, Dallas, TX 75202, 214-665-6521,
[email protected]. To inspect the hard copy materials, please
schedule an appointment with Ms. Paige or Mr. Bill Deese at 214-665-
7253.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
In 1979, under section 109 of the CAA, the EPA established the
primary and secondary NAAQS for ozone at 0.12 parts per million (ppm)
averaged over a 1-hour period (44 FR 8202, February 8, 1979).\1\ In
1997, we revised the primary and secondary NAAQS for ozone to set the
acceptable level of ozone in the ambient air at 0.08 ppm, averaged over
an 8-hour period (62 FR 38856, July 18, 1997).\2\ In 2008, we further
revised the primary and secondary ozone NAAQS to 0.075 ppm, averaged
over an 8-hour period (73 FR 16436, March 27, 2008).\3\ For additional
information on ozone, please see the Technical Support Document (TSD)
in the docket for this action and visit https://www.epa.gov/ozone-pollution.
---------------------------------------------------------------------------
\1\ Primary standards are set to protect human health while
secondary standards are set to protect public welfare. In addition,
many reports of ozone concentrations are given in parts per billion
(ppb); ppb = ppm x 1000. Thus, 0.12 ppm becomes 120 ppb or 124 ppb
when rounding is considered.
\2\ The standard of 0.08 ppm becomes 0.084 ppm or 84 ppb when
rounding, based on the truncating conventions in 40 CFR part 50,
Appendix P.
\3\ In 2015, we again revised the primary and secondary ozone
NAAQS to 0.070 ppm, averaged over an 8-hour period (73 FR 16436,
March 27, 2008). This action does not address the HGB area under the
2008 or 2015 ozone standards.
---------------------------------------------------------------------------
[[Page 22094]]
Implementation of the 1-Hour and the 1997 8-Hour Ozone NAAQS
In 2004, we published a rule governing implementation of the 1997
ozone NAAQS (Phase 1 Rule) (69 FR 23951, April 30, 2004). The Phase 1
Rule revoked the 1-hour ozone NAAQS along with designations and
classifications for that standard and set anti-backsliding provisions
for the transition from the 1-hour to the 1997 8-hour standard. Anti-
backsliding provisions provide for controls that are not less stringent
than the controls applicable to areas that were listed as nonattainment
for the revoked ozone standards when the standards and designations
were revoked. EPA did not include the section 185 fee requirement for
areas classified as Severe and Extreme as an anti-backsliding provision
in the Phase 1 Rule.\4\ The United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit Court) ruled that the
section 185 fee requirement needed to be retained as an anti-
backsliding provision under EPA's approach. South Coast Air Quality
Management District v. EPA, 472 F.3d 882 (DC Cir. 2006) (``South Coast
I'').
---------------------------------------------------------------------------
\4\ The CAA section 185 fee program requirements apply to ozone
nonattainment areas classified as Severe or Extreme that fail to
attain by the required attainment date. It requires each major
stationary source of VOC located in an area that fails to attain by
its attainment date to pay a fee to the state for each ton of VOC
the source emits in excess of 80 percent of a baseline amount.
---------------------------------------------------------------------------
In 2015, EPA revoked the 1997 ozone NAAQS and established anti-
backsliding requirements for the revoked 1997 ozone NAAQS, as well as
some revisions to the anti-backsliding requirements for the revoked 1-
hour standard, in our final rule for implementing the 2008 ozone NAAQS
(known as the ``SIP Requirements Rule,'' 40 CFR 51.1100, and 80 FR
12264). EPA considered the South Coast I decision on the Phase 1 Rule
in developing the SIP Requirements Rule for the 2008 8-hour ozone
standard.
The SIP Requirements Rule provided that an area will be subject to
the anti-backsliding obligations for a revoked NAAQS until we approve
(1) a redesignation to attainment for the area for the 2008 ozone NAAQS
or (2) a ``redesignation substitute'' for a revoked NAAQS, which
required an area to demonstrate that it had attained the revoked NAAQS
due to permanent and enforceable measures and would maintain that
standard for ten years (40 CFR 51.1105(b)(1)). In the SIP Requirements
Rule, EPA had created the redesignation substitute procedure because it
believed it did not have the authority under the CAA to change the
designations of areas under a revoked NAAQS, but wanted a means to
terminate anti-backsliding requirements for an area that would
otherwise be eligible for a redesignation had the standard not been
revoked. 80 FR 12264, March 6, 2015 at 12304-05. Though EPA created the
redesignation substitute based on the CAA 107(d)(3)(E) redesignation
criteria, the procedure did not require states to demonstrate
satisfaction of all five criteria. Texas submitted and EPA approved
redesignation substitute demonstrations for the HGB area for the 1-hour
ozone NAAQS (80 FR 63429, October 20, 2015) and the 1997 8-hour ozone
NAAQS (81 FR 78691, November 8, 2016), on the basis that the area was
attaining both standards based on permanent and enforceable emission
reductions and had demonstrated that the area would maintain each
standard for 10 years.
On February 16, 2018, the D.C. Circuit Court vacated certain parts
of the 2015 final rule for implementing the 2008 ozone NAAQS, including
the redesignation substitute provision, based on the court's conclusion
that those provisions were not consistent with CAA requirements. South
Coast Air Quality Management District v. EPA, 882 F.3d 1138 (DC Cir.
2018) (``South Coast II''). In that decision, the Court held that the
redesignation substitute tool was not consistent with Clean Air Act
requirements because it failed to satisfy all five of the statutory
requirements set forth in CAA section 107(d)(3)(E), which governs
redesignations from nonattainment to attainment. Id. at 1152.
The HGB Area's Designations and Classifications Under the 1-Hour Ozone
NAAQS and the 1997 8-Hour Ozone NAAQS
Under the 1-hour ozone NAAQS, the HGB area, consisting of Brazoria,
Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller
Counties, was designated as nonattainment and classified as Severe-17
with an attainment deadline of November 15, 2007 (56 FR 56694, November
6, 1991).\5\ The area did not attain the 1-hour ozone standard by its
applicable attainment date of November 15, 2007 (June 19, 2012, 77 FR
36400). This determination of failure to attain by the HGB area's
attainment date triggered the anti-backsliding requirements for CAA
section 185 and contingency measures. The HGB area subsequently
attained the 1-hour ozone NAAQS at the end of 2013 (80 FR 63429,
October 20, 2015).
---------------------------------------------------------------------------
\5\ Under CAA section 181(a)(2) certain Severe 1-hour ozone
nonattainment areas like the HGB area were given an attainment
deadline of 17 years rather than 15 years, thus the ``Severe-17''
classification.
---------------------------------------------------------------------------
Under the 1997 ozone NAAQS, the HGB area (the same eight counties
designated as nonattainment under the 1-hour ozone NAAQS) was
designated as nonattainment and classified as Moderate with an
attainment deadline of no later than June 15, 2010. (69 FR 23858 and 69
FR 23951 April 30, 2004). At the request of the Texas Governor we
reclassified the area to Severe and set an attainment deadline of June
15, 2019 (73 FR 56983, October 1, 2008). The HGB area attained the 1997
8-hour ozone NAAQS at the end of 2014 (81 FR 78691, November 8, 2016).
The Texas Redesignation and Maintenance Plan Submittal
On December 12, 2018, the Texas Commission on Environmental Quality
(TCEQ or State) adopted the HGB Redesignation Request and Maintenance
Plan SIP Revision for the 1-hour and 1997 ozone NAAQS and submitted
this package to EPA on December 14, 2018. The SIP revision includes a
request that the EPA redesignate the HGB area to attainment for the 1-
hour and 1997 ozone NAAQS and provides a maintenance plan that will
ensure the area remains in attainment of these NAAQS through 2032. This
submittal addresses all five criteria of CAA section 107(d)(3)(E). As
stated in their submittal, the TCEQ developed this redesignation
request and maintenance plan SIP revision to address the uncertainty
created by the court's South Coast II ruling.
We note that the Agency has previously taken the position that when
it revokes a NAAQS in full, all the associated designations and
classifications under that NAAQS are also revoked, see 69 FR 23951,
23969-70 (April 30, 2004), and the Agency no longer has the authority
to change those designations, 80 FR 12296-97, 12304-05 (March 6, 2015).
However, in the SIP Requirements Rule, EPA stated that it was retaining
the listing of the designated areas in 40 CFR part 81 under the revoked
1997 NAAQS ``for the sole purpose of identifying the anti-backsliding
requirements that may apply to the areas at the time of revocation.''
80 FR 12296-97 (emphasis added). The South Coast II court did not
address the Agency's interpretation that it lacks authority to alter an
area's designation post-revocation of a NAAQS. The South Coast II court
decision did hold that areas that were nonattainment for a revoked
standard at
[[Page 22095]]
the time of revocation could only terminate their obligations under
that standard by demonstrating that they have met all five of the
statutory redesignation criteria, and thus could not rely on the
redesignation substitute mechanism included in the ozone implementation
rule at issue. 882 F.3d at 1152 (``The Clean Air Act unambiguously
requires nonattainment areas to satisfy all five of the conditions
under Sec. 7407(d)(3)(E) before they may shed controls associated with
their nonattainment designation.'').
While the Court did not address the issue of EPA's authority to
alter designations after a standard has been revoked, it did speak to
EPA's interpretation that we lacked authority to change a nonattainment
area's classification under a revoked ozone NAAQS. The Court held that
the EPA is required to continue to reclassify to a higher
classification, or bump up, areas under the revoked 1997 NAAQS that
fail to attain on time, because, in the court's view, such
reclassification is an anti-backsliding control. South Coast II, 882
F.3d at 1147-48. The Court's holding on this point could be interpreted
to call into question EPA's interpretation that when a NAAQS and its
associated designations and classifications are revoked in full, it no
longer retains the authority to alter those designations and
classifications.
EPA is proposing to find that Texas' submittal meets all five
criteria in section 107(d)(3)(E), as required by the court, for the 1-
hour and 1997 ozone NAAQS. EPA is therefore proposing to terminate the
anti-backsliding obligations for the HGB area associated with those
NAAQS. We also take comment on whether EPA has the authority to alter
an area's nonattainment area designation post-revocation, if only to
fully clarify that such area has satisfied all requirements with
respect to that revoked NAAQS. We therefore propose in the alternative
that if EPA has such authority, the HGB area be redesignated to
attainment for the revoked 1-hour and 1997 ozone NAAQS. Regardless of
whether designations can be altered after revocation, it is clear under
South Coast II that EPA has the authority to terminate an area's anti-
backsliding obligations under a revoked NAAQS if that area meets the
section 107(d)(3)(E) criteria.
If finalized, this action will replace our previous approvals of
HGB redesignation substitutes for the 1-hour and 1997 8-hour ozone
NAAQS. It should be noted that we are not proposing to alter our
previous conclusions that the HGB area has attained the 1-hour and 1997
8-hour ozone NAAQS due to permanent and enforceable emission
reductions. Along with taking comment on whether EPA can alter an
area's nonattainment designation, we are specifically taking comment on
whether as part of this action, EPA has the authority to and should
revise the listings in Part 81 for the HGB area for the 1-hour and 1997
ozone standards from nonattainment to attainment in recognition that
the area meets the 107(d)(3)(E) criteria and it is no longer necessary
to identify the area as one where anti-backsliding obligations apply
under these standards.
The Texas Severe Ozone Nonattainment Area Failure To Attain Fee
Submittal
TCEQ adopted the HGB Severe Ozone Nonattainment Area Failure to
Attain Fee program for the 1-hour ozone NAAQS (referred herein after as
the HGB alternative section 185 fee equivalent program) on May 22,
2013. It was submitted to EPA as a SIP revision on November 27, 2018.
The SIP revision provided a new Subchapter B (Failure to Attain Fee) in
Chapter 101 (General Air Quality Rule) of Title 30 of the Texas
Administrative Code (30 TAC).
II. Redesignation Criteria for Ozone Nonattainment Areas
As explained earlier in this action, we are proposing to terminate
the anti-backsliding requirements for the revoked standards or
redesignate to attainment of the revoked standards, which would also
have the effect of terminating the anti-backsliding requirements, based
on our conclusion that the five criteria in CAA section 107(d)(3)(E)
are met. These criteria are the following: (1) We determine that the
area has attained the NAAQS; (2) we fully approve the applicable
implementation plan for the area under CAA section 110(k); (3) we
determine that the improvement in air quality is due to permanent and
enforceable reductions in emissions resulting from implementation of
the applicable implementation plan and Federal air pollutant control
regulations and other permanent and enforceable reductions; (4) we
fully approve a maintenance plan for the area as meeting the
requirements of CAA section 175A; and (5) we determine the State
containing such area has met all requirements applicable to the area
under CAA section 110 (Implementation plans) and part D (Plan
Requirements for Nonattainment Areas).
EPA's Evaluation of the Redesignation and Maintenance Plan Submittal
Below is the summary of our evaluation. Detailed information on our
evaluation can be found in the TSD. EPA normally evaluates these
criteria as the basis to redesignate an area to attainment, therefore,
EPA has here conducted this analysis for purposes of terminating the 1-
hour and 1997 ozone NAAQS anti-backsliding requirements or in the
alternative, for redesignation.
Has the area attained the 1-hour and 1997 8-hour ozone NAAQS and are
the improvements in air quality due to permanent and enforceable
reductions in emissions? (Criteria 1 and 3)
In prior actions we determined that the HGB area attained the 1-
hour ozone NAAQS (80 FR 63429, October 20, 2015) and 1997 8-hour ozone
NAAQS (80 FR 81466, December 30, 2015 and 81 FR 78691, November 8,
2016). Quality-assured ambient air quality data found in the Air
Quality System (AQS) database shows that the HGB area attained the 1-
hour ozone NAAQS in 2013 and attained the 1997 ozone NAAQS in 2014.
Quality-assured data collected through 2017 and preliminary data for
2018 indicate that the area has continued to maintain both of these
standards (Table 1).\6\ We are proposing to determine that the HGB area
is attaining the 1-hour and 1997 8-hour ozone NAAQS.
---------------------------------------------------------------------------
\6\ At the time of this writing, the preliminary ozone data for
2018 are posted on the TCEQ website, but are not yet posted in AQS.
See https://www.tceq.texas.gov/cgi-bin/compliance/monops/8hr_attainment.pl. For more information on AQS, please visit https://www.epa.gov/aqs. Tables listing the HGB monitoring sites with the
fourth high 8-hour ozone average concentrations and design values
and expected exceedances of the 1-hour ozone NAAQS are provided in
the TSD for this rulemaking.
Table 1--1-Hour and 1997 Ozone Design Values for the HGB Area
------------------------------------------------------------------------
1-hour ozone 1997 ozone design
Years design value value
------------------------------------------------------------------------
2011-2013....................... 121 ppb........... 87 ppb.
2012-2014....................... 111 ppb........... 80 ppb.
2013-2015....................... 120 ppb........... 80 ppb.
2014-2016....................... 120 ppb........... 79 ppb.
2015-2017....................... 120 ppb........... 81 ppb.
Preliminary 2016-2018........... 110 ppb........... 78 ppb.
------------------------------------------------------------------------
In prior actions, we determined that the improvement in air quality
in the HGB area is due to permanent and enforceable reductions in
emissions (80 FR 63429, October 20, 2015, regarding the 1-hour ozone
NAAQS; 81 FR 78691, November 8, 2016, regarding the 1997 ozone NAAQS).
Texas identified State and Federal control measures that were approved
in both the 1-hour and 1997 8-hour ozone attainment demonstration
[[Page 22096]]
(AD) SIPs that led to permanent and enforceable emission reductions.
The 1-hour ozone AD SIP was approved on September 6, 2006 (71 FR
52670). The 1997 ozone AD SIP was approved on January 2, 2014 (79 FR
57). Additionally, we have approved Reasonable Further Progress SIPs
for the HGB area that document continuous emission reductions due to
permanent and enforceable measures for the 1-hour and 1997 8-hour ozone
standards (70 FR 7407, February 14, 2005; 74 FR 18298, April 22, 2009;
and 79 FR 51, January 2, 2014). We propose that the HGB area has
attained the 1-hour and 1997 ozone NAAQS due to permanent and
enforceable emission reductions.
Is the applicable implementation plan for the area fully approved and
has the area met all applicable requirements under CAA section 110 and
part D? (Criteria 2 and 5)
We are proposing to find that the HGB area has met all requirements
under CAA section 110 (Implementation Plans and part D Plan
Requirements for Nonattainment Areas) that are applicable for purposes
of redesignation (CAA section 107(d)(3)(E)(v)), and that those
requirements have been fully approved into the Texas SIP (CAA section
107(d)(3)(E)(ii)).
110(a)(2) of the CAA contains the general requirements for a SIP.
Section 110(a)(2) provides that the SIP must have been adopted by the
state after reasonable public notice and hearing, and that, among other
things, it must: (1) Include enforceable emission limitations and other
control measures, means or techniques necessary to meet the
requirements of the CAA; (2) provide for establishment and operation of
appropriate devices, methods, systems and procedures necessary to
monitor ambient air quality; (3) provide for implementation of a source
permit program to regulate the modification and construction of
stationary sources within the areas covered by the plan; (4) include
provisions for the implementation of part C prevention of significant
deterioration (PSD) and part D new source review (NSR) permit programs;
(5) include provisions for stationary source emission control measures,
monitoring, and reporting; (6) include provisions for air quality
modeling; and, (7) provide for public planning and emission control
rule development.
Part D of the Clean Air Act establishes the plan requirements for
nonattainment areas. Section 172(c) sets forth the basic requirements
of air quality plans for states with nonattainment areas that are
required to submit plans on a schedule pursuant to section 172(b).
Subpart 2 of part D, which includes section 182 of the CAA, establishes
specific requirements for ozone nonattainment areas depending on the
areas' nonattainment classifications. The HGB area was classified as
Severe under both the 1-hour and the 1997 ozone NAAQS with identical
area boundaries. As such, the area is subject to the subpart 1
requirements contained in section 172(c) and section 176. The area is
also subject to the subpart 2 requirements contained in section 182(d)
(Severe nonattainment area requirements). A thorough discussion of the
requirements contained in section 172(c) and 182 can be found in the
General Preamble for Implementation of Title I (57 FR 13498, April 16,
1992).
Since Congress passed the CAA Amendments in 1990, EPA has
consistently held the position that not every requirement that an area
is subject to is applicable for purposes of redesignation. See, e.g.,
September 4, 1992, Memorandum from John Calcagni (``Calcagni Memo'') at
6.\7\ For example, some of the Part D requirements, such as
demonstrations of reasonable further progress, are designed to ensure
that nonattainment areas continue to make progress toward attainment.
EPA has interpreted these requirements as not ``applicable'' for
purposes of redesignation under CAA section 107(d)(3)(E)(ii) and (v)
because areas that are applying for redesignation to attainment are by
definition already attaining the standard. Id. Similarly, EPA has long
held that only those CAA provisions that are relevant to an area's
designation and classification as a nonattainment area are
``applicable'' for purposes of redesignation under CAA section
107(d)(3)(E)(ii) and (v). For this reason, SIP revisions that apply
regardless of whether an area is designated nonattainment or
attainment, such as good neighbor plans required under CAA section
110(a)(2)(D)(i)(I), have not been considered ``applicable'' for
purposes of redesignation. Finally, some requirements may not be
applicable in this action given that both of the NAAQS at issue in this
notice were revoked for all purposes, and, post-revocation, the HGB
area remained subject only to the anti-backsliding requirements
identified by EPA in regulation. See 40 CFR 51.1105(a); 51.1100(o).
---------------------------------------------------------------------------
\7\ ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992. To view the memo, please
visit https://www.epa.gov/sites/production/files/2016-03/documents/calcagni_memo_-_procedures_for_processing_requests_to_redesignate_areas_to_attainment_090492.pdf.
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However, for the revoked ozone standards at issue here, over the
past three decades the State has submitted numerous SIPs for the HGB
area to implement those standards, improve air quality with respect to
those standards, and to address anti-backsliding requirements for those
standards. Therefore, even though some of the HGB area's SIP-approved
measures address measures that are not requirements ``applicable'' for
purposes of redesignation under CAA section 107(d)(3)(E)(ii) and (v),
such as CAA section 182(b) reasonable further progress, or address
requirements that were not retained for anti-backsliding, such as
section 182(a) emissions inventories, we provide in the accompanying
TSD the list of SIP-approved measures the State has adopted and EPA has
approved for the HGB area with respect to the revoked 1-hour and 1997
ozone NAAQS. These include: (1) Emissions inventories, (2) emissions
statements, (3) nonattainment new source review programs, (4)
reasonably available control technology for sources of both VOC and
NOX, (5) gasoline vapor recovery, (6) both basic and
enhanced vehicle inspection and maintenance programs, (7) enhanced
ambient monitoring, (8) attainment and reasonable further progress
demonstrations, (9) contingency measures for failure to attain or make
reasonable further progress, (10) clean fuel vehicle programs, and (11)
transportation control measures to offset emissions from growth in
vehicle miles traveled.\8\ Texas also submitted SIPs to address CAA
section 110(a)(2) for the 1997 ozone NAAQS, which we approved in prior
actions.\9\ Similarly, as part of this action, EPA is proposing
approval of an alternative 185 fee equivalent program submitted by
Texas on November 27, 2018 to meet the requirement in CAA section
182(d)(3).
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\8\ The requirements can be found in CAA sections 182(a) through
182(d).
\9\ Approval of the section 110(a)(2) Infrastructure SIP for the
1997 ozone standard for Texas is not required for purposes of
redesignation.
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Does Texas have a fully approved ozone maintenance plan for the HGB
area? (Criterion 4)
Section 107(d)(3)(E)(iv) of the CAA requires EPA to determine that
the area has a fully approved maintenance plan pursuant to CAA section
175A. Under CAA section 175A, the maintenance plan must demonstrate
continued attainment of the NAAQS for at least 10 years after the
Administrator approves a redesignation to attainment. Eight years
[[Page 22097]]
after the redesignation, the state must submit a revised maintenance
plan which demonstrates that attainment of the NAAQS will continue for
an additional 10 years beyond the initial 10-year maintenance period.
To address the possibility of future NAAQS violations, the maintenance
plan must contain contingency measures, as EPA deems necessary, to
assure prompt correction of any future NAAQS violation.
EPA's interpretation of the elements under CAA section 175A is
contained in the Calcagni Memo. Section 107(d)(3)(E)(iv) requires the
maintenance plan to be ``fully approved,'' and the Calcagni Memo
provides that a state may submit the redesignation request and
maintenance plan at the same time and rulemaking on both may proceed on
a parallel track. The Calcagni Memo further provides guidance on the
content of a maintenance plan, explaining that it should address five
requirements: (1) An attainment emissions inventory; (2) a maintenance
demonstration; (3) an air quality monitoring commitment; (4)
verification of continued attainment; and (5) a contingency plan.
In conjunction with the redesignation request submitted to EPA on
December 14, 2018, TCEQ submitted a maintenance plan to provide for the
ongoing attainment of the 1-hour and 1997 8-hour ozone NAAQS for at
least ten years following the effective date of approval of the SIP
revision. Our evaluation of the five requirements follows:
1. Attainment Inventory
The Texas submittal includes a 2014 base year emission inventory
(EI) for NOx and VOC. The TCEQ chose 2014 as the base year because it
is the first year in which the HGB area is attaining both the 1-hour
and 1997 ozone NAAQS and was the most recent periodic inventory
available to develop the attainment EI. For reference, the previously
approved 2011 EI (84 FR 3708, February 13, 2019) and the proposed 2014
base year EI are summarized (in tons per day or tpd) in Table 2. The
2014 base year EI was developed from the 2014 periodic EI, in
accordance with the Air Emissions Reporting Requirements (see 80 FR
8787, February 19, 2015). We propose to approve the 2014 base year EI.
For more information, see the TSD and the Texas submittal.
Table 2--Previous Emission Inventories and Submitted Emission Inventories for the HGB Area (tpd)
----------------------------------------------------------------------------------------------------------------
NOX VOC
---------------------------------------------------------------
Source type 2011 EI 2011 EI
approved at 84 2014 EI approved at 84 2014 EI
FR 3708 submitted FR 3708 submitted
----------------------------------------------------------------------------------------------------------------
Point........................................... 108.33 95.11 95.99 77.56
Area............................................ 21.15 30.99 304.90 301.97
Non-road Mobile................................. 142.44 100.61 49.78 37.51
On-road Mobile.................................. 188.02 131.15 80.73 65.04
---------------------------------------------------------------
Totals...................................... 459.94 357.86 531.40 482.08
----------------------------------------------------------------------------------------------------------------
The State's submittal shows the historical trends of NOX
and VOC emissions reduced from 2002 through 2014, the date by which the
HGB area reached attainment of both the 1-hour and 1997 ozone NAAQS.
The attainment level emissions (provided in tpd) are identified by
source category and summarized in Tables 3 and 4. The attainment
emissions inventory is consistent with the Calcagni Memo.
2. Maintenance Demonstration
Texas has demonstrated maintenance of the 1-hour and 1997 ozone
NAAQS through 2032 by providing EI projections from 2014 through 2032
that show emissions of NOX and VOC for the HGB area remain
at or below the attainment year (2014) emission levels. A maintenance
demonstration need not be based on modeling.\10\ The future year Texas
EIs presented are 2020, 2026, and 2032: 2032 is more than 10 years
after the expected effective date of this action and 2020 and 2026 show
emissions between the attainment year and final maintenance year. To
generate the future year EIs, Texas estimated the amount of growth that
will occur between 2014 and the end of 2020, 2026, and 2032. Generally,
the State followed our guidelines in estimating the growth in
emissions.
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\10\ See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club
v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-
53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003).
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Table 3--Change in NOX Emissions From 2014 Through 2032 for the HGB Area (tpd)
----------------------------------------------------------------------------------------------------------------
Year
Source Category ---------------------------------------------------------------
2014 2020 2026 2032
----------------------------------------------------------------------------------------------------------------
Point........................................... 95.11 128.77 128.94 129.12
Area............................................ 30.99 32.52 33.84 34.64
On-road......................................... 131.15 75.63 49.47 38.22
Non-road........................................ 100.61 75.77 63.65 61.60
---------------------------------------------------------------
Annual Totals:.............................. 357.86 312.69 275.90 263.58
----------------------------------------------------------------------------------------------------------------
[[Page 22098]]
Table 4--Change in VOC Emissions From 2014 Through 2032 for the HGB Area (tpd)
----------------------------------------------------------------------------------------------------------------
Year
Source Category ---------------------------------------------------------------
2014 2020 2026 2032
----------------------------------------------------------------------------------------------------------------
Point........................................... 77.56 77.56 77.56 77.56
Area............................................ 301.97 319.18 327.46 351.20
On-road......................................... 65.04 49.16 37.82 28.59
Non-road........................................ 37.51 29.84 28.79 29.71
---------------------------------------------------------------
Annual Totals:.............................. 482.08 475.74 471.63 487.06
----------------------------------------------------------------------------------------------------------------
Table 3 shows a net decrease in emissions of NOX from
2014 to 2032 of 98.28 tpd. Table 4 shows a net increase in emissions of
VOC from 2014 to 2032 of 4.98 tpd, due to growth in area source
emissions. The projected increase in VOC emissions is offset by the
much larger projected decrease in NOX emissions. In the most
recent attainment demonstration submittal for the HGB area, the TCEQ
included in their analysis that, excepting industrial HRVOC, which are
not expected to increase, NOX emissions are responsible for
more ozone creation than VOC emissions from area and mobile source
groups.\11\ In its submittal, Texas notes that photochemical modeling
and data analysis for the HGB area consistently show that reducing
NOX emissions is expected to be at least as effective as
reducing VOC emissions in lowering the ozone design value. This is
further supported by the emission inventories showing consistent
decreases in NOX emissions in the HGB area with concurrent
reductions in Ozone levels. Therefore, Texas has offset the growth in
VOC emissions with far greater NOX emissions reductions. The
projected reduction in NOX emissions and projected growth in
VOC emissions, expressed in tpd and as a percentage, are shown in Table
5.
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\11\ The mobile source groups described by the TCEQ are on-road
and non-road, including elevated ships. See the Texas Attainment
Demonstration for the HGB Ozone Nonattainment Area (Docket ID: EPA-
R06-OAR-2017-0053): HGB attainment SIP Appendix C pgs. 37-39 and 62
(Docket ID: EPA-R06-OAR-2017-0053-0004); Manvel Croix Source
Apportionment spreadsheet (Docket ID: EPA-R06-OAR-2017-0053-0008),
and numerous other source apportionment spreadsheets in the same
Docket. 83 FR 24446, May 29, 2018.
Table 5--Maintenance Demonstration \12\
------------------------------------------------------------------------
Description NOX (tpd) VOC (tpd)
------------------------------------------------------------------------
a. 2014 Emissions Inventories (from 357.86 482.08
Tables 2 and 3)........................
b. 2032 Emissions Inventories (from 263.58 487.06
Tables 2 and 3)........................
c. Change in EI from 2014 to 2032 (line -94.28 + 4.98
b minus line a)........................
d. Percent change in EI from 2014 to -26.34% + 1.03%
2032...................................
------------------------------------------------------------------------
NOX emissions are projected to decrease by approximately
94 tpd by 2032, which is about 26 percent less than the 2014
NOX emission levels. VOC emissions are projected to increase
by approximately 5 tpd by 2032, which is about 1 percent higher than
the 2014 VOC emission levels. Because the projected reduction in
NOX emission (26%) is far greater than the projected
increase in VOC emissions (1%), we propose that the TCEQ has offset the
growth in VOC emissions with NOX emissions reductions and
demonstrated maintenance of the 1-hour and 1997 ozone NAAQS through
2032. We note that the projections for the on-road mobile source
inventory for 2032, which TCEQ submitted as motor vehicle emissions
budgets, are consistent with maintenance of the 1-hour and 1997 NAAQS.
---------------------------------------------------------------------------
\12\ See our TSD for more detail on the State's submitted
maintenance demonstration.
---------------------------------------------------------------------------
3. Monitoring Network
The TCEQ has committed to continue to maintain an air monitoring
network to meet regulatory requirements in the HGB area to ensure
maintenance of the 1-hour and 1997 ozone standards. Texas has committed
to meet monitoring requirements and continue to quality assure
monitoring data in accordance with 40 CFR part 58, and to enter all
data into AQS in accordance with Federal guidelines through the end of
the maintenance period in 2032.
4. Verification of Continued Attainment
The TCEQ has the legal authority to enforce and implement the
requirements of the maintenance plan for the HGB area. This includes
the authority to adopt, implement, and enforce any subsequent emission
control measures determined as necessary to correct any future failure
to maintain the 1-hour and 1997 ozone NAAQS.
Verification of continued attainment is accomplished through
operation of the ambient ozone monitoring network and the periodic
update of the area's EI. The TCEQ has committed to continue monitoring
ozone levels according to an EPA-approved monitoring plan. Should
changes in the location of an ozone monitor become necessary, TCEQ will
work with EPA to ensure the adequacy of the monitoring network. The
TCEQ has further committed to continue to quality assure the monitoring
data to meet the requirements of 40 CFR part 58 and enter all data into
AQS in accordance with Federal guidelines.
In addition, to track future levels of emissions, TCEQ will
continue to develop and submit to EPA updated EIs for all source
categories at least once every three years, consistent with the
requirements of 40 CFR part 51, subpart A, and in 40 CFR 51.122. The
most recent triennial inventory for Texas was compiled for 2014. Point
source facilities covered by the Texas emission statement rule will
continue to submit VOC and NOX emissions on an annual basis
as required by 30 TAC Chapter 101.10(d).
[[Page 22099]]
5. Contingency Plan
Section 175A of the CAA requires that the state must adopt a
maintenance plan, as a SIP revision, that includes such contingency
measures as EPA deems necessary to assure that the state will promptly
correct a violation of the NAAQS that occurs after redesignation of the
area to attainment of the NAAQS. The maintenance plan must identify:
The contingency measures to be considered and, if needed for
maintenance, adopted and implemented; a schedule and procedure for
adoption and implementation; and a time limit for action by the state.
The state should also identify specific indicators to be used to
determine when the contingency measures need to be considered, adopted,
and implemented. The maintenance plan must include a commitment that
the state will implement all measures with respect to the control of
the pollutant that were contained in the SIP before redesignation of
the area to attainment in accordance with section 175A(d) of the CAA.
As required by CAA section 175A, Texas has proposed a contingency
plan for the HGB area to address future violations of the 1-hour and/or
1997 ozone NAAQS. The contingency measures proposed by the TCEQ
include, but are not limited to, the following:
Limit VOC emissions from dryers, filtration systems, and
fugitive emissions from petroleum dry cleaning facilities.
Decrease in the rule threshold triggering applicability to
requirements, such as control and inspection requirements, for
controlling flash emissions from fixed roof crude oil and condensate
storage tanks.
Require the application of low solar-absorptance paint to
VOC storage tanks.
Implement enhanced leak detection and repair program
measures.
Decrease the rule threshold triggering applicability to
requirements for storage tanks, transport vessels, and marine vessels.
Regulate pneumatic controllers used in oil and natural gas
production, transmission of oil and natural gas, and natural gas
processing.
The maintenance plan provides that a monitored and certified
violation of the NAAQS triggers the requirement to consider, adopt, and
implement the plan's contingency measures. The schedule and procedure
for adoption and implementation by the State is no longer than 18
months following a monitored and certified violation of the NAAQS.
Given the estimated emissions in the Houston nonattainment area, we
believe the proposed contingency measures are sufficient to address any
potential future violations.
EPA is proposing that the TCEQ's maintenance plan adequately
addresses the five basic components of a maintenance plan: Attainment
inventory, maintenance demonstration, monitoring network, verification
of continued attainment, and a contingency plan. Thus, the maintenance
plan SIP revision proposed by the TCEQ meets the requirements of CAA
section 175A and EPA proposes to approve it as a revision to the Texas
SIP.
III. Motor Vehicle Emissions Budgets
The HGB maintenance plan submission includes motor vehicle
emissions budgets (MVEBs) for the last year of the maintenance plan (in
this case 2032). MVEBs are used to conduct regional emissions analyses
for transportation conformity purposes. See 40 CFR 93.118. The MVEB is
the portion of the total allowable emissions in the maintenance
demonstration that is allocated to highway and transit vehicle use and
emissions. See 40 CFR 93.101. As part of the interagency consultation
process on setting MVEBs, TCEQ held discussions to determine what years
to set MVEBs for the HGB area maintenance plan.
We note the HGB area already has adequate NOX and VOC
MVEBs for the 2008 ozone NAAQS. Therefore, the HGB area can continue to
make conformity determinations for transportation plans, transportation
improvement programs, and projects based on budgets for the 2008 ozone
NAAQS as it has been doing, according to the requirements of the
transportation conformity regulations at 40 CFR part 93.\13\ The
Houston area currently demonstrates conformity to the more stringent
2008 and 2015 ozone NAAQS using MVEBs contained in the area's 2008
ozone NAAQS Reasonable Further Progress SIP revision (82 FR 26091, June
6, 2017). Therefore, EPA is not approving the submitted 2032
NOX and VOC MVEBs for transportation conformity purposes. As
noted previously, EPA is proposing to find that the projected emissions
inventory which reflects these budgets are consistent with maintenance
of the 1-hour and 8-hour standard.
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\13\ Transportation Conformity Guidance for the South Coast II
Court Decision, EPA-420-B-18-050. November 2018, available on EPA's
web page at https://www.epa.gov/state-and-local-transportation/policy-and-technical-guidance-state-and-local-transportation.
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IV. Evaluation of the HGB Alternative Section 185 Fee Equivalent
Program
The CAA section 185 fee program requirements apply to ozone
nonattainment areas classified as Severe or Extreme that fail to attain
by the required attainment date. It requires each major stationary
source of VOC located in an area that fails to attain by its attainment
date to pay a fee to the state for each ton of VOC the source emits in
excess of 80 percent of a baseline amount. CAA section 182(f) extends
the application of this provision to major stationary sources of
NOX. In 1990, the CAA set the fee as $5,000 per ton of VOC
and NOX emitted, which is adjusted for inflation, based on
the Consumer Price Index, on an annual basis. For areas subject to
section 185, fee collection is for each calendar year beginning after
the attainment date, until the area is redesignated to attainment.\14\
More information on CAA section 185 is provided in our TSD. Because the
HGB area failed to attain the 1-hour ozone NAAQS by the applicable
attainment deadline of November 15, 2007, the area became subject to
section 185 for that standard.\15\
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\14\ Section 185 is an anti-backsliding requirement which would
be terminated upon a showing that the five criteria of 107(d)(3)(E)
are met. This action, if finalized, will terminate the requirement
for a section 185 fee program.
\15\ Although the HGB area is also designated and classified as
Severe for the 1997 8-hour ozone NAAQS, the section 185 fee program
was not triggered for that standard, because the area attained the
1997 ozone NAAQS well before the Severe area attainment deadline of
June 15, 2019. See 80 FR 81466, December 30, 2015.
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On January 5, 2010 EPA issued the memo ``Guidance on Developing Fee
Programs Required by Clean Air Act Section 185 for the 1-hour Ozone
NAAQS.'' \16\ The guidance discussed options for the EPA approval of
SIPs that included an equivalent alternative program to the section 185
fee program specified in the CAA when addressing anti-backsliding for a
revoked ozone NAAQS under the principles of section 172(e). Section
172(e) requires EPA to develop regulations to ensure that controls in a
nonattainment area are ``not less stringent'' than those that applied
to the area before EPA revised a NAAQS to make it less stringent.
Although section 172(e) does not directly apply where EPA has
strengthened the NAAQS, as it did in 1997, 2008, and 2015, EPA has
applied the principles in section 172(e) when revoking less stringent
ozone standards. EPA allows a state to adopt an
[[Page 22100]]
alternative to CAA section 185 if the state demonstrates that the
proposed alternative program is ``not less stringent'' than the direct
application of CAA section 185. EPA has previously stated that one way
to demonstrate this is to show that the alternative program provides
equivalent or greater fees and/or emissions reductions directly
attributable to the application of CAA section 185. Although the 2010
guidance was vacated and remanded by the D.C. Circuit on procedural
grounds, the court did not prohibit alternative programs, stating
``neither the statute nor our case law obviously precludes that
alternative'' (NRDC v. EPA, 643 F.3d 311 (D.C. Cir. 2011)). EPA
approved alternative 185 fee equivalent programs in California for the
San Joaquin Valley (77 FR, 50021, August 20, 2012) and the South Coast
Air Quality Management District covering two 1-hour ozone nonattainment
areas: (1) Los Angeles-South Coast Air Basin Area and (2) Southeast
Desert Modified Air Quality Management Area (77 FR 74372, December 14,
2012) (upheld in Natural Res. Def. Council v. EPA, 779 F.3d 1119 (9th
Cir. 2015)). More recently we approved an alternative 185 fee
equivalent program for the New York portion of the New York-Northern
New Jersey-Long Island 1-hour ozone nonattainment area (84 FR 12511,
April 2, 2019).
---------------------------------------------------------------------------
\16\ See https://www.epa.gov/sites/production/files/2015-09/documents/1hour_ozone_nonattainment_guidance.pdf.
---------------------------------------------------------------------------
The Texas program: (1) Calculates the amount of fees that major
sources would pay each year; (2) offsets the major source fees with
fees collected in the HGB area for programs designed to reduce
emissions from mobile sources; and (3) allows for major sources to
request to fulfill all or part of their fee obligations with emission
credits, emission allowances or a supplemental emission reduction
project (if there are still major source fee obligations after
offsetting with mobile source fees). The fees collected from mobile
sources in the HGB area fund emission reductions through the (1) Texas
Emissions Reduction Plan, (2) Low-Income Vehicle Repair Assistance,
Retrofit, and Accelerated Vehicle Repair Program (LIRAP) and (3) Local
Initiative Project program. The Texas Emission Reduction Plan provides
money to help replace, repower or retrofit diesel equipment to
accelerate the introduction of cleaner diesel equipment. LIRAP provides
money to assist owners with the repair or replacement of automobiles
that fail the Inspection and Maintenance (I/M) program and that
otherwise would receive a waiver and not be repaired. The Local
Initiative Project program provides money for projects such as improved
enforcement of the I/M program. These programs all provide for emission
reductions in the HGB area in the hard to reach mobile source sector.
In a letter dated December 4, 2018, TCEQ provided a reconciliation
report summarizing the section 185 fee equivalency demonstration. The
TCEQ report found that the fees collected for emission reduction
projects in the HGB area more than fully offset the fees that would
have been collected under a direct application of section 185 during
the years 2012 to 2016.\17\
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\17\ Before the South Coast II decision our approval of the HGB
1-hour redesignation substitute ended the obligation for a section
185 fee program in late 2015 (80 FR 63429, October 20, 2015).
---------------------------------------------------------------------------
A detailed evaluation of the Texas section 185 alternative fee
program is included in the TSD for this action. Based on our evaluation
we are proposing to find that the Texas program proposed for approval
is an equivalent section 185 fee program as it provides greater or
equivalent fees and emission reductions than those that would be
provided by major stationary sources alone. Thus, we are also proposing
to approve 30 TAC Chapter 101, Subchapter B (Failure to Attain Fee)
sections 101.100-101.102, 101.104, 101.106-101.110, 101.113, 101.116,
101.117, 101.118(a)(1), 101.118(a)(3) and 101.120-101.122. At this
time, we are not taking action on 30 TAC sections 101.118(a)(2) and
101.118(b).\18\
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\18\ Section 30 TAC 101.118(a)(2) allows for ending the failure
to attain fee program through a finding of attainment by EPA.
Section 30 TAC 101.118(b) allows for placing fee payment into
abeyance if three consecutive years of quality-assured data
resulting in a design value that did not exceed the 1-hour ozone
standard, or a demonstration indicating that the area would have
attained by the attainment date but for emissions emanating from
outside the United States, are submitted to the EPA.
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V. Proposed Action
We are proposing to determine that the HGB area is continuing to
attain the 1-hour and 1997 8-hour ozone NAAQS, and that Texas has met
the CAA criteria for redesignation of this area. Therefore, the EPA is
proposing to terminate all anti-backsliding obligations for the HGB
area for the 1-hour and 1997 ozone NAAQS. The EPA is also proposing to
approve 30 TAC sections 101.100-101.102, 101.104, 101.106-101.110,
101.113, 101.116, 101.117, 101.118(a)(1), 101.118(a)(3) and 101.120-
101.122 as an alternative 185 fee equivalent program. We are also
proposing to approve the plan for maintaining the 1-hour and 1997 ozone
NAAQS through 2032 in the HGB area.
VI. Incorporation by Reference
In this action, we are proposing to include in a final rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, we are proposing to incorporate by
reference revisions to the Texas regulations as described in the
Proposed Action section. We have made, and will continue to make, these
documents generally available electronically through
www.regulations.gov and in hard copy at the EPA Region 6 office (please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section of this preamble for more information).
VII. Statutory and Executive Order Reviews
The actions in this proposal terminate statutory and regulatory
requirements associated with prior federal revoked ozone standards and
do not impose any additional regulatory requirements on sources beyond
those imposed by state law. Therefore, this action does not in and of
itself create any new requirements. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the CAA.
For that reason, these actions:
Are not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Are not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because they are not ``significant regulatory
actions'' under Executive Order 12866;
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Do 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);
Do not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
[[Page 22101]]
Are not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Do not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the proposed rule does not have tribal implications and will
not impose substantial direct costs on tribal governments or preempt
tribal law as specified by Executive Order 13175 (65 FR 67249, November
9, 2000).
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone.
40 CFR Part 81
Environmental protection, Air pollution control.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 9, 2019.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2019-09943 Filed 5-15-19; 8:45 am]
BILLING CODE 6560-50-P
