[Federal Register: December 31, 2007 (Volume 72, Number 249)]
[Proposed Rules]
[Page 74252-74255]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de07-22]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R06-OAR-2007-0554; FRL-8512-6]
Clean Air Act Reclassification of the Houston/Galveston/Brazoria
Ozone Nonattainment Area; Texas; Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to grant a request by the Governor of the State
of Texas to voluntarily reclassify the Houston/Galveston/Brazoria (HGB)
ozone nonattainment area from a moderate 8-hour ozone nonattainment
area to a severe 8-hour ozone nonattainment area. This request was made
in a letter from Governor Rick Perry to the EPA Administrator on June
15, 2007. In addition to the reclassification proposal, EPA is also
proposing and taking comment on a range of dates from December 15, 2008
to April 15, 2010 for the State to submit a revised State
Implementation Plan (SIP) addressing the severe ozone nonattainment
area requirements of the Clean Air Act (CAA).
EPA will accept comments on all aspects of this proposed action.
However, as discussed in Section II below, the CAA mandates the Agency
to grant a voluntary reclassification when requested by a State.
DATES: Written comments must be received on or before January 30, 2008.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2007-0554, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm.
Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov.
Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2007-0554. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.
The http://www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Planning Section
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a 15 cent per page
fee for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas.
FOR FURTHER INFORMATION CONTACT: Carl Young, Air Planning Section (6PD-
L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite
700, Dallas, Texas 75202-2733, telephone (214) 665-6645; fax number
214-665-7263; e-mail address young.carl@epa.gov.
[[Page 74253]]
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us'' or ``our'' is used, we mean the EPA.
Correspondence discussed in this proposal can be found on the
internet in the electronic docket for this action. To access the
correspondence, please go to http://www.regulations.gov and search for
Docket No. EPA-R06-OAR-2007-0554, or contact the person listed in the
FOR FURTHER INFORMATION CONTACT paragraph above.
Table of Contents
I. Background
II. Reclassification of the HGB Nonattainment Area to Severe Ozone
Nonattainment
III. Consequences of Reclassification
A. Effect on Stationary Air Pollution Sources
B. Relief From Attainment Demonstration Deadlines of Previous
Classification
C. Required Plan and Submission Date
1. Submission Date for HGB's 8-Hour Ozone Severe State
Implementation Plan
2. Severe Area Plan Requirements
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background
The HGB area consists of Brazoria, Chambers, Fort Bend, Galveston,
Harris, Liberty, Montgomery and Waller counties. Upon the date of
enactment of the 1990 CAA Amendments, the HGB area was classified as a
severe ozone nonattainment area for the 1-hour ozone National Ambient
Air Quality Standard (NAAQS).\1\
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\1\ 56 FR 56694, November 6, 1991 and CAA section 181(a)(1).
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On July 18, 1997, EPA, citing continued health concerns with the 1-
hour ozone standard, promulgated a new 8-hour ozone NAAQS aimed at
better protecting the health of those particularly susceptible to the
effects of ozone (62 FR 38856, July 18, 1997). The 8-hour standard is
more protective of public health than the older 1-hour standard. On
April 30, 2004, we established 8-hour ozone standard designations and
classifications for every area in the United States (69 FR 23858). The
HGB area was classified as a moderate nonattainment area for the 8-hour
ozone standard with an attainment date no later than June 15, 2010.
Also on April 30, 2004, we issued a final rule addressing key elements
of the program to implement the 8-hour standard (Phase 1 Rule) (69 FR
23951). The classifications and Phase 1 Rule were the subject of
litigation, but since mid-2007 it has been clear that the HGB
classification under the 8-hour rule will remain in effect.\2\
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\2\ South Coast Air Quality Management District v. EPA, 472 F.3d
882 (D.C. Cir. 2006).
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II. Reclassification of the HGB Nonattainment Area to Severe Ozone
Nonattainment
On June 15, 2007, EPA received a request from Governor Perry
seeking voluntary reclassification of the HGB area. The Governor
requested that EPA reclassify the HGB area from a moderate
nonattainment area to a severe nonattainment area under the 8-hour
ozone standard. A severe classification is two classification
categories higher than the current classification of moderate. This
request was made because the State does not believe that it can reduce
emissions enough to reach attainment by the current June 2010
attainment date.\3\ A severe classification means that the HGB area
must attain the 8-hour ozone standard as expeditiously as practicable
but no later than June 15, 2019.
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\3\ Letter from Governor Rick Perry to Mr. Stephen Johnson,
Administrator of the EPA, dated June 15, 2007.
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EPA is reviewing this request as one made pursuant to section
181(b)(3) of the CAA which provides for ``voluntary reclassification''
and states that ``* * * [t]he Administrator shall grant the request of
any State to reclassify a nonattainment area in that State * * * to a
higher classification'' and that ``* * * [t]he Administrator shall
publish a notice in the Federal Register of any such request and of
action by the Administrator granting the request.''
EPA intends to take a final action granting the State's request for
a voluntary reclassification. The plain language of section 181(b)(3)
mandates that we approve such a request and, as such, gives the Agency
no discretion to deny it.
III. Consequences of Reclassification
A. Effect on Stationary Air Pollution Sources
Upon reclassification, stationary air pollution sources in the HGB
ozone nonattainment area will be subject to severe ozone nonattainment
area New Source Review (NSR) and Title V permit requirements. The
source applicability thresholds for major sources and major source
modification emissions will be 25 tons per year for volatile organic
compounds (VOC) and nitrogen oxides (NOX). For new and
modified major stationary sources subject to review under Texas
Administrative Code Title 30, Chapter 116, Section 116.150 (30 TAC
116.150) in the EPA approved SIP, VOC and NOX emission
increases from the proposed construction of the new or modified major
stationary sources must be offset by emission reductions by a minimum
offset ratio of 1.30 to 1. (See 30 TAC 116 and 40 CFR 52.2270(c)).
B. Relief From Attainment Demonstration Deadline of Previous
Classification
EPA believes that when a nonattainment area is reclassified, the
CAA attainment demonstration requirements of the new classification
supersede those of the previous classification. In other words, once a
nonattainment area has been reclassified and as a result has a new
statutory attainment deadline, the deadline applicable to the
attainment demonstration under the previous classification no longer
has any logical, practical or legal significance. Consequently, when
HGB is reclassified to severe, any potential for EPA to find the area
has failed to submit any required documents pertinent to the attainment
demonstration under the previous classification will be moot.
EPA also believes that reclassification would not provide a basis
for extending submission deadlines for SIP elements unrelated to the
attainment demonstration, that were due for the area's moderate
classification. In June 2007 Texas submitted an 8 hour SIP to EPA that
included the requirements of (1) a moderate area reasonable further
progress demonstration (40 CFR 51.910) which includes contingency
control measures if the area fails to meet reasonable further progress
(CAA 172(c)(9)), (2) a reasonably available control technology
demonstration (40 CFR 51.912), and (3) a 2002 emissions inventory (40
CFR 51.915). Other moderate area SIP requirements are currently being
implemented. These include NSR rules (40 CFR part 165) and a vehicle
inspection and maintenance program (40 CFR 51.905(a)(1)(i)).
C. Required Plan and Submission Date
1. Submission Date for HGB's 8-Hour Ozone Severe State Implementation
Plan
In a letter dated May 21, 2007, in response to questions from the
Texas Commission on Environmental Quality (TCEQ), the EPA's Acting
Assistant Administrator for Air requested that the Chairman of TCEQ
provide to EPA a basis for setting a new deadline for submission of the
severe area SIP attainment demonstration and other required elements of
the new classification, and that based on this recommendation and
documentation, along with other relevant information, EPA would
establish a SIP submission
[[Page 74254]]
date.\4\ The Wehrum letter further stated that the submission date
should be as soon as practicable but not beyond June 15, 2010. In a
July 10, 2007 letter to Texas Governor Rick Perry we also requested
that TCEQ provide information to show the amount of time needed for the
State to submit its plan as soon as practical and stated that we would
work with TCEQ on setting a date for submission of the new SIP
obligations and ensuring interim progress in reducing emissions prior
to attainment.\5\ In a letter dated August 21, 2007, the Executive
Director of TCEQ provided a schedule of milestones leading to a SIP
adoption date of March 2010. TCEQ stated that the recommended timeline
reflects the complex technical work in developing an attainment
demonstration; updating emissions inventory data (including reasonable
further progress milestones); revising the existing 2005 photochemical
modeling; developing a new and more representative 2006 photochemical
modeling episode; and developing and adopting effective control
strategies. TCEQ also stated that its schedule would allow for a
meaningful stakeholder process for developing effective control
strategies.\6\ If we accept the timing set forth in the Texas letter it
suggests to us that April 15, 2010 could be an appropriate date for
submission of the revised SIP for the 8-hour ozone standard.
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\4\ Letter from William Wehrum, EPA Assistant Administrator, to
Ms. Kathleen Hartnett White, TCEQ Chairman, dated May 21, 2007.
\5\ Letter from Lawrence E. Starfield, Acting EPA Regional
Administrator, to Governor Rick Perry, dated July 10, 2007.
\6\ Letter from Glenn Shankle, TCEQ Executive Director to Mr.
Richard E. Greene, EPA Regional Administrator, dated August 21,
2007.
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Alternatively, December 15, 2008, (18 months from the request for
reclassification), could be considered an appropriate date for
submission of the SIP revision to EPA. This date is analogous to the 18
months allowed for SIP submissions pursuant to a SIP call under CAA
section 110(k)(5). It is also in keeping with the timeframes set forth
in the involuntary reclassifications, which in general have been
approximately 12 months from the effective date of a final
reclassification.\7\ Given these two dates, we are proposing and taking
comment on a range of dates from December 15, 2008 to April 15, 2010
for submission of the revised SIP for the 8-hour ozone standard. We
request that any comments on the date for submission of the revised SIP
be accompanied by justification for the commenter's position. We will
review the comments and make a decision on the appropriate SIP
submission date in our final action on the reclassification.
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\7\ See the reclassification notices for the Dallas/Fort Worth
area (63 FR 8128, February 18, 1998) and the Beaumont/Port Arthur
area (69 FR 16483, March 30, 2004).
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2. Severe Area Plan Requirements
A revised SIP for the HGB area must include all the requirements
for serious ozone nonattainment area plans such as: (1) Enhanced
ambient monitoring (CAA 182(c)(1)), (2) an enhanced vehicle inspection
and maintenance program (CAA 182(c)(3)), (3) a clean fuel vehicle
program or an approved substitute (CAA 182(c)(4)), and (4) gasoline
vapor recovery for motor vehicle refueling emissions (CAA 182(b)(3)
\8\). It must also meet the severe area requirements including: (1) an
attainment demonstration (40 CFR 51.908), (2) provisions for reasonably
available control technology and reasonably available control measures
(40 CFR 51.912), (3) reasonable further progress reductions in VOC and
NOX emissions (40 CFR 51.910), (4) contingency measures to
be implemented in the event of failure to meet a milestone or attain
the standard (CAA 172(c)(9) and 182(c)(9)), (5) transportation control
measures to offset emissions from growth in vehicle miles traveled (CAA
182(d)(1)(A)), (6) reformulated gasoline (CAA 211(k)(10)(D)), (7) NSR
permits (40 CFR part 165), and (7) fees on major sources if the area
fails to attain the standard (CAA 182(d)(3) and 185). See also the
requirements for serious and severe ozone nonattainment areas set forth
in CAA sections 182(c), 182(d) and 185. Because the HGB area was
classified as severe under the 1-hour ozone standard, many of these
requirements are currently being implemented.
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\8\ Under CAA section 202(a)(6) gasoline vapor recovery remains
a requirement for serious and above nonattainment areas but is no
longer a requirement for moderate nonattainment areas. Please see 59
FR 16262, April 6, 1994.
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The revised SIP for the HGB area must also contain adopted
regulations to adopt and implement control measures in regulatory form
by specified dates sufficient to make required reasonable further
progress in emission reductions and to attain the 8-hour ozone NAAQS as
expeditiously as practicable but not later than June 15, 2019. The new
attainment demonstration should be based on the best information
available.
IV. Proposed Action
Pursuant to section 181(b)(3) and based on a voluntary request by
the state of Texas, we are proposing to grant the request of the
Governor of Texas to reclassify the HGB 8-hour ozone nonattainment area
from moderate to severe. We are also proposing to set due dates for the
submission of a revised SIP addressing the severe area requirements. We
are proposing to set a date within the range from December 15, 2008 to
April 15, 2010 for the State to submit a revised SIP addressing the CAA
severe ozone nonattainment area requirements.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. EPA has
determined that the voluntary reclassification would not result in any
of the effects identified in Executive Order 12866 section 3(f).
Voluntary reclassifications under 181(b)(3) of the CAA are based solely
upon requests by the State and EPA is required under the CAA to grant
them. These actions do not, in and of themselves, impose any new
requirements on any sectors of the economy. In addition, because the
statutory requirements are clearly defined with respect to the
differently classified areas, and because those requirements are
automatically triggered by classification, reclassification cannot be
said to impose a materially adverse impact on State, local or tribal
governments or communities. For this reason, this action is also not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001).
In addition, I certify that this proposed rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). And these
actions 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), because EPA is required to
grant requests by States for voluntary reclassifications and such
reclassifications in and of themselves do not impose any federal
intergovernmental mandate. This proposed rule also does not have tribal
implications because it will not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes, as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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This action also does not have Federalism implications because it
does not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action does not alter the relationship or the
distribution of power and responsibilities established in the CAA.
This proposed rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant. As discussed above, a voluntary reclassification under
section 181(b)(3) of the CAA is based solely on the request of a State
and EPA is required to grant such a request. In this context, it would
thus be inconsistent with applicable law for EPA, when it grants a
State's request for a voluntary reclassification to, use voluntary
consensus standards. Thus the requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) also do not apply. In addition, this proposed rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Lastly, executive Order 12898 (59 FR 7629, February 16, 1994)
establishes federal executive policy on environmental justice. Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States. As stated
earlier in this Notice EPA intends to take a final action granting the
State's request for a voluntary reclassification. The plain language of
section 181(b)(3) of CAA mandates that we ``shall'' approve such a
request if it is made in accordance with the requirements of the Act,
and, as such, does not provide the Agency with the discretionary
authority to address concerns raised outside the Act, including those
contained in Executive Order 12898.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 18, 2007.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. E7-25402 Filed 12-28-07; 8:45 am]
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