[Federal Register Volume 68, Number 118 (Thursday, June 19, 2003)]
[Proposed Rules]
[Pages 36756-36763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15521]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-122-1-7612; FRL-7515-2]


Determination of Nonattainment as of November 15, 1996, and 
November 15, 1999, and Reclassification of the Beaumont/Port Arthur 
Ozone Nonattainment Area; State of Texas; Supplemental Proposed Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental proposed rule.

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SUMMARY: On December 11, 2002, the U.S. Court of Appeals for the Fifth 
Circuit (the Court) reversed EPA's extension of the attainment date for 
the Beaumont/Port Arthur moderate 1-hour ozone nonattainment area 
(BPA). The Court concluded that the Federal Clean Air Act (the Act or 
CAA) precludes such an extension as a matter of law. The Court remanded 
our final action approving the ozone attainment demonstration State 
Implementation Plan (SIP) and the motor vehicle emissions budgets 
(MVEB) and our finding that the BPA area is implementing all reasonably 
available control measures (RACM), for proceedings consistent with the 
Court's opinion and for EPA to demonstrate an examination of all 
relevant data and provide a plausible explanation for the rejection of 
proposed RACMs.
    In response to the Court's reversal, EPA is withdrawing its final 
action that extended the attainment date to November 15, 2007, and 
approved the transport demonstration. The EPA is proposing to issue a 
finding that BPA has failed to attain the 1-hour ozone national ambient 
air quality standard (NAAQS or standard) by November 15, 1996, the 
attainment date for moderate nonattainment areas set forth in the Act.
    If EPA takes final action on this finding, the BPA area would be 
reclassified as a serious 1-hour ozone nonattainment area. If EPA 
issues a final

[[Page 36757]]

notice of reclassification of the BPA area to serious, EPA is proposing 
in the alternative two options for identifying the appropriate 
attainment date for the area. Under Option 1, EPA is proposing an 
additional finding that the area failed to attain the 1-hour ozone 
standard by November 15, 1999, the attainment date for serious 
nonattainment areas. If EPA takes final action on this finding, the 
area would therefore be reclassified as a severe 1-hour ozone 
nonattainment area, with an attainment date of no later than November 
15, 2005. Alternatively, under Option 2, the EPA is proposing to 
reclassify BPA to a serious 1-hour ozone nonattainment area, and retain 
that classification with an attainment date of no later than November 
15, 2005, thereby giving the State a prospective opportunity as a 
serious area to attain the standard. Under either alternative, we are 
proposing that the State of Texas submit the required SIP revision on 
or before one year after the effective date of a final action on this 
notice. We are further proposing to adjust the dates by which the area 
must meet the rate-of-progress (ROP) requirements and adjust 
contingency measure requirements as they relate to the ROP 
requirements. Due to the revised attainment date in response to the 
remand, we are proposing to withdraw our final approval of BPA's 2007 
attainment demonstration SIP, the MVEB, the mid-course review 
commitment (MCR),and our finding that BPA implemented all RACM. We also 
propose the schedule for Texas to submit a revised SIP, a new MVEB, and 
a re-analysis of RACM.
    In particular, we are soliciting comments on the alternate proposed 
Options 1 and 2.

DATES: Written comments must be received on or before July 21, 2003.

ADDRESSES: Comments on this action can be mailed to Mr. Thomas H. 
Diggs, Chief, Air Planning Section (6PD-L), U.S. Environmental 
Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-2733 or e-
mailed to [email protected]. Copies of documents relevant to this 
action are available for public inspection during normal business hours 
at the following locations. Anyone wanting to examine these documents 
should make an appointment with the appropriate office at least two 
working days in advance.
    Environmental Protection Agency, Region 6, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT: Steven Pratt, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733. Telephone Number 
(214) 665-2140, e-mail Address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means EPA. This supplementary information section is organized 
as listed in the following Table of Contents:

I. What Is the Background for this Proposed Action?
II. What Are the National Ambient Air Quality Standards?
III. What Is the NAAQS For Ozone?
IV. What is a SIP and How Does it Relate to the NAAQS for Ozone?
V. What Is the Beaumont/Port Arthur Nonattainment Area?
VI. What Is the Additional Context for this Proposed Rulemaking?
VII. Why Are We Proposing to Reclassify the Beaumont/Port Arthur 
Area?
VIII. What Is the Proposed New Attainment Date for the Beaumont/Port 
Arthur Area?
IX. What is the Proposed Date for Submitting a Revised SIP for the 
Beaumont/Port Arthur Area?
X. Why are We Proposing to Withdraw the Attainment Demonstration, 
MCR, and MVEB approvals and the RACM Finding, and What Are the 
Potential Impacts of the Proposed Withdrawals?
XI. How does the Recent Release of MOBILE6 Interact with 
Reclassification?
    A. What is the Relationship between MOBILE6 and the Attainment 
Year Motor Vehicle Emissions Budgets?
    B. What is the Relationship Between MOBILE6 and the Post-1996 
Rate-of-Progress Requirement?
XII. What will be the Rate-of-Progress and Contingency Measure 
Schedules?
    A. Rate-of-Progress Milestones
    B. 2005 Rate-of-Progress
    C. Contingency for Failure to Achieve Rate-of-Progress by 
November 15, 1999, and November 15, 2002
XIII. What are the Impacts on the Title V Program?
XIV. Statutory and Executive Order Reviews

I. What Is the Background for This Proposed Action?

    The BPA area is classified as a moderate 1-hour ozone nonattainment 
area and, therefore, was required to attain the 1-hour ozone standard 
of 0.12 ppm by November 15, 1996. On April 16, 1999, EPA proposed in 
the alternative either to reclassify the BPA area to a serious ozone 
nonattainment area, or to extend BPA's attainment date if the State 
submitted a SIP consistent with the criteria of the Transport Policy. 
64 FR 18864. EPA proposed to find that the BPA area did not attain the 
1-hour ozone NAAQS by November 15, 1996, as required by the CAA. The 
proposed finding was based on 1994-1996 air quality data that showed 
the area's air quality violated the standard and the area did not 
qualify for an attainment date extension under the provisions of 
section 181(a)(5).\1\ EPA also proposed that the appropriate 
reclassification of the area would be from moderate to serious. 
Although the area was not eligible for an attainment date extension 
under CAA section 181(a)(5), the April 16, 1999, proposal included a 
notice of the BPA area's eligibility for an attainment date extension, 
pursuant to the Transport Policy, which was published in a March 25, 
1999, Federal Register notice (64 FR 14441). This policy addressed 
circumstances where pollution from upwind areas interferes with the 
ability of a downwind area to attain the 1-hour ozone standard by its 
attainment date. EPA proposed to finalize its action on the 
determination of nonattainment and reclassification of the BPA area 
only after the area had received an opportunity to qualify for an 
attainment date extension under the Transport Policy.
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    \1\ Section 181(a)(5) specifies that a state may request, and 
EPA may grant, up to two one-year attainment date extensions. EPA 
may grant an extension if: (1) The state has complied with the 
requirements and commitments pertaining to the applicable 
implementation plan for the area, and (2) the area has measured no 
more than one exceedance of the ozone standard at any monitoring 
site in the nonattainment area in the year in which attainment is 
required.
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    The State of Texas submitted a request for an extension of the 
attainment date for the BPA area, a transport demonstration, an 
attainment demonstration SIP and MVEB, a MCR enforceable commitment, 
and RACM analysis. We proposed on December 27, 2000, to approve the 
transport demonstration and extend the attainment date without 
reclassifying the area, approve the attainment demonstration SIP and 
MVEB, approve the MCR commitment, and find that BPA was implementing 
all RACM. (65 FR 81786)
    On May 15, 2001, EPA issued a final rule (66 FR 26914) in which EPA 
approved the transport demonstration and extended the attainment date 
for the BPA area to November 15, 2007, while retaining the area's 
classification as ``moderate.'' The rule also approved the attainment 
demonstration for the BPA area and MVEB, approved the State's 
enforceable commitment to perform a mid-course review and submit a SIP 
revision by May 1, 2004, found that the area was implementing all RACM, 
and took one other non-related action. (66 FR 26914). The attainment 
demonstration SIP is addressed in the State of Texas submittals dated 
November 12, 1999, and April 25, 2000. Thus, the area would have had 
until no later than November 15, 2007, the attainment date for the 
upwind Houston-Galveston (HG) nonattainment

[[Page 36758]]

area, to attain the 1-hour ozone standard. The final rule contains 
EPA's responses to the comments. (We also took one final action not 
relevant to today's proposed action and the Court's remand: the finding 
that BPA met the Reasonably Available Control Technology (RACT) 
requirements for major sources of Volatile Organic Compounds (VOC) 
emissions.)
    A petition for review of the May 15, 2001, rulemaking was filed in 
the U.S. Court of Appeals for the Fifth Circuit. On December 11, 2002, 
the Court issued a decision in Sierra Club v. EPA, 314 F.3d 735 (5th 
Cir. 2002), reversing the portion of EPA's approval that extended BPA's 
attainment date to 2007 under the Transport Policy without 
reclassifying the area.\2\ The Court also remanded to EPA the final 
actions related to the reversal: our approval of the attainment 
demonstration SIP and MVEB, the MCR commitment, and our finding that 
the area was implementing all RACM. The Court affirmed the portion of 
EPA's final action that requires implementation only of control 
measures that contribute to attainment as expeditiously as practicable 
and considers implementation costs in rejecting control measures, but 
remanded EPA's specific determination regarding RACM in the BPA area so 
that any conclusions about the control measures may be adequately 
explained. In response to the reversal, we must withdraw our 
determination to extend the attainment deadline for BPA and our 
approval of the transport demonstration. In light of the lapse of time 
since EPA's prior proposal regarding the determination of nonattainment 
and reclassification, EPA is issuing this supplemental proposal that 
supersedes the April 16, 1999, proposal. In response to the remand, we 
are proposing to withdraw our final action approving the attainment 
demonstration SIP and MVEB and the MCR commitment and finding that BPA 
is implementing all RACM.
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    \2\ Two other United States Circuit Courts of Appeals had 
previously issued decisions rejecting transport-based attainment 
date extensions that EPA had granted in other areas. Sierra Club v. 
EPA, 294 F.3d 155 (D.C. Cir. 2002) and Sierra Club v. EPA, 311 F.3d 
853 (7th Cir. 2002). In the wake of these decisions, EPA issued 
final rulemakings reclassifying the Washington, DC ozone 
nonattainment area, 68 FR 3410 (January 24, 2003), and the St. Louis 
ozone nonattainment area. 68 FR 4835 (January 30, 2003). (EPA 
subsequently redesignated the St. Louis area to attainment for the 
ozone standard 68 FR 25418 and 68 FR 25442 (May 12, 2003).) In 
addition, in light of the Fifth Circuit's decision on Beaumont, EPA 
recently issued a final rule withdrawing a transport-based 
attainment date extension and reclassifying the Baton Rouge ozone 
nonattainment area. 68 FR 20077 (April 24, 2003).
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II. What Are the National Ambient Air Quality Standards?

    Since the CAA's inception in 1970, EPA has set NAAQS for six common 
air pollutants: Carbon monoxide, lead, nitrogen dioxide, ozone, 
particulate matter, and sulfur dioxide. The CAA requires that these 
standards be set at levels that protect public health and welfare with 
an adequate margin of safety. These standards present state and local 
governments with the air quality levels they must meet to achieve clean 
air. Also, these standards allow the American people to assess whether 
or not the air quality in their communities is healthful.

III. What Is the NAAQS for Ozone?

    The NAAQS for ozone is expressed in two forms called the 1-hour and 
8-hour \3\ standards. Table 1 summarizes the 1-hour ozone standards.
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    \3\ The 8-hour ozone standard value is 0.08 ppm and is the 
primary and secondary standard. The standard requires that the 
average of the annual fourth highest daily maximum 8-hour average 
ozone concentration measured at each monitor over any three-year 
period, be less than or equal to 0.08 ppm. EPA intends to designate 
areas under the 8-hour standard by April 15, 2004.

                                       Table 1. Summary of Ozone Standards
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      Standard               Value                            Type                       Method of compliance
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1-hour.............  0.12 ppm.............  Primary and Secondary...................  Must not be exceeded, on
                                                                                       average, more than one
                                                                                       day per year over any
                                                                                       three-year period at any
                                                                                       monitor within an area.
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(Primary standards are designed to protect public health and secondary 
standards are designed to protect public welfare and the environment.)

    The 1-hour ozone standard of 0.12 parts per million (ppm) was 
promulgated in 1979. The 1-hour ozone standard continues to apply to 
the BPA area, and it is the classification of the BPA area with respect 
to the 1-hour ozone standard addressed in this document.

IV. What Is a SIP and How Does It Relate to the NAAQS for Ozone?

    Section 110 of the CAA requires states to develop air pollution 
regulations and control strategies to ensure that state air quality 
meet the NAAQS established by EPA. Each state must submit these 
regulations and control strategies to us for approval and incorporation 
into the Federally-enforceable SIP.
    Each Federally-approved SIP protects air quality primarily by 
addressing air pollution at its point of origin. These SIPs can be 
extensive. They may contain state regulations or other enforceable 
documents and supporting information such as emission inventories, 
monitoring networks, and modeling demonstrations.

V. What Is the Beaumont/Port Arthur Nonattainment Area?

    The Beaumont/Port Arthur moderate ozone nonattainment area is 
located in Southeast Texas, and consists of Hardin, Jefferson, and 
Orange Counties.

VI. What Is the Additional Context for This Proposed Rulemaking?

    The Transport Policy provided for an extension of an area's 
attainment date if it were adversely affected by transport, without 
reclassification of the affected area. Consequently, when we granted 
the extension of the attainment date for BPA, we did not take action to 
finalize the April 16, 1999, proposed finding that BPA had not attained 
the 1-hour ozone standard by November 15, 1996. We therefore did not 
reclassify BPA from ``moderate'' to ``serious.'' The Court's ruling 
means that BPA's attainment date extension is no longer valid. 
Currently the area is classified as ``moderate'' and the State and the 
area thus have not yet been subject to the requirements for a 
``serious'' area.
    The air quality in the BPA area has improved throughout the years. 
In the early to mid-1990's, the design value hovered around 0.160 ppm, 
to .150 ppm. Since 1998, the area's design value has fluctuated between 
0.134 ppm and 0.145 ppm, correlating to ``marginal'' and ``moderate'' 
classifications. In 2001, only two of the seven monitoring sites showed 
exceedences of the NAAQS of 0.124 ppm, while in 2002 only one site 
showed any exceedences. BPA came very close to attaining in 2002, when 
it experienced exceedances at that one monitoring site, Sabine Pass, 
the site most directly impacted by emissions from HG. In fact, the 
Sabine Pass

[[Page 36759]]

monitor has seen four of the five highest design values since 1997.
    Since 1996, the State has implemented a series of VOC and 
NOX rules in BPA and the entire eastern half of the State. 
Texas implemented VOC and NOX RACT rules in BPA for point 
and area sources, and implemented for half of the State (all of the 
attainment counties in the eastern half of Texas), NOX rules 
for electric generating facilities, a lower Reid-vapor pressure 
gasoline, and Stage I vapor recovery program for gas stations. They 
implemented state-wide NOX rules for water heaters, small 
boilers, and process heaters. They entered into enforceable documents 
reducing NOX emissions at two large point sources in East 
Texas. In 2000, Texas adopted beyond-RACT NOX rules in BPA 
for point sources with some effective this year and the rest fully 
implemented by May 2005. The majority of these state rules focus on 
emissions from point and area sources, not from on-road mobile 
emissions.
    The BPA area's NOX emissions inventory is composed of 
about 55% point sources and about 17% on-road mobile sources (area, 
biogenics, and non-road mobile make up the remaining 28%). Its VOC 
emissions inventory is composed of about 12% point sources and about 4% 
on-road mobile sources (area, biogenics, and non-road mobile make up 
the remaining 84%). This composition is unusual since generally, 1-hour 
ozone nonattainment areas have NOX and VOC emissions 
inventories composed of much greater percentages of on-road mobile 
sources, on the order of two to three times the NOX 
percentage, and on the order of two to six times the VOC percentage. 
The inventory composition makes it unlikely that additional on-road 
mobile control measures would significantly affect BPA's NOX 
and VOC emissions inventories. Thus, additional on-road mobile controls 
would be unlikely to significantly aid in reducing NOX and 
VOC emissions thereby reducing the ozone concentration level in BPA. 
This is contrasted to the likelihood that additional point and area 
control measures would significantly affect BPA's NOX and 
VOC emissions inventories, thereby more than likely significantly 
aiding in reducing NOX and VOC emissions, and having a 
greater impact on reducing the ozone concentration level in BPA.

VII. Why Are We Proposing To Reclassify the BPA Area?

    Section 181(b)(2) of the Act requires that we determine, based on 
the area's design value (as of the attainment date), whether an ozone 
nonattainment area attained the one-hour ozone standard by that date. 
If we find that the nonattainment area has failed to attain the one-
hour ozone standard by the applicable attainment date, the area is 
reclassified by operation of law to the higher of the next higher 
classification for the area, or the classification applicable to the 
area's design value as determined at the time of the required Federal 
Register notice.
    We make attainment determinations for ozone nonattainment areas 
using available quality-assured air quality data. For the BPA moderate 
ozone nonattainment area, the proposed attainment determination is 
based on 1994-1996 air quality data. The data show that for 1994-1996, 
four monitoring sites averaged more than one exceedance day per year. 
This data calculates to a design value of .157 ppm. Therefore, we 
propose to find that the BPA area did not attain the 1-hour ozone NAAQS 
by the November 15, 1996, deadline. Additional background for this 
proposed finding may be found in the April 16, 1999, proposal (64 FR 
18864), the December 27, 2000, proposal (65 FR 81786), and the May 15, 
2001, final rule (66 FR 26914). A summary and discussion of the air 
quality monitoring data for the BPA area for 1994 through 1996 can be 
found in the April 16, 1999, proposal and its TSD.
    Section 181(b)(2)(A) of the Act requires that, when we find that an 
area failed to attain by the applicable date, the area is reclassified 
by operation of law to the higher of: the next higher classification or 
the classification applicable to the area's ozone design value at the 
time the required notice is published in the Federal Register. The 
classification applicable to BPA's ozone design value at the time of 
today's notice is ``moderate'' since the area's 2002 calculated design 
value, based on quality-assured ozone monitoring data from 2000-2002, 
is 0.144 ppm. (We will not have quality-assured monitoring data to 
calculate a 2003 design value until the Spring of 2004.) By contrast, 
the next higher classification for BPA is ``serious.'' Because 
``serious'' is a higher nonattainment classification than ``moderate'' 
under the statutory scheme, BPA would be reclassified as ``serious,'' 
for failing to attain the standard by the moderate area applicable 
attainment date of November 15, 1996.
    If EPA issues a final notice of reclassification of the BPA area to 
a ``serious'' classification, EPA must then ascertain the appropriate 
attainment date for the area. EPA is proposing in the alternative two 
options.
    Section 181(a)(1) provides that the date for a ``serious'' area to 
attain is set as November 15, 1999, a date that has long since elapsed. 
Under Option 1, EPA is proposing to make an additional finding that the 
area did not attain the 1-hour ozone standard as of November 15, 1999. 
The air quality monitoring data show that for 1997-1999, four 
monitoring sites averaged more than one exceedance day per year. This 
data calculates to a design value of .134 ppm.
    Table 2 lists the number of recorded exceedances of the one-hour 
ozone standard at each SLAMS/SPM monitoring site in the BPA area for 
the period 1997 through 2002, and each monitor's design value for that 
period. A complete listing of the ozone exceedances at each monitor as 
well as EPA's calculations of the design values can be found in the 
technical support document.

                                              Table 2.--Ozone Exceedances in the Beaumont/Port Arthur Area
                                                                     [1997 to 2002]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Site Design Value (ppm)
                     Site                                  Type              1997   1998   1999   2000   2001   2002 -----------------------------------
                                                                                                                       97-99    98-00    99-01    00-02
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beaumont.....................................  SLAMS                            3      2      0      1      0      0    0.130    0.121    0.117    0.112
Port Arthur..................................  SLAMS                            0      0      0      3      0      0    0.115    0.118    0.118    0.118
West Orange..................................  SLAMS                            2      1      0      1      0      0    0.110    0.120    0.118    0.118
Hamshire.....................................  SLAMS                        .....  .....  .....      2      0      0  .......    0.131    0.121    0.119
Sabine.......................................  SPM                              2      4      3      2      1      3    0.134    0.145    0.134    0.144
Mauriceville.................................  SPM                              2      2      0      0      0      0    0.125  .......  .......  .......
Jefferson Co. Airport........................  SPM                              2      1      3      2      1      0    0.132    0.137    0.132  .......
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 36760]]

--Data unavailable; Data below the NAAQS attainment concentration of 
0.125 ppm is not reported for the industry provided SPMs.

    Therefore, under Option 1, if we issue a final rulemaking 
reclassifying the area to ``serious,'' we are proposing further to find 
that the BPA area also did not attain the ozone standard by November 
15, 1999, the attainment deadline for ``serious'' areas. If we finalize 
this further finding, the BPA area would then be reclassified as 
``severe'', with an attainment date of November 15, 2005. Section 
181(b)(2) requires the area to be reclassified to the higher of the 
next higher classification or the area's design value, except that a 
``serious'' area cannot be reclassified to any higher level than 
``severe.''
    Alternatively, under Option 2, we are proposing to find that the 
area should be reclassified to ``serious,'' but recognizing that the 
EPA did not reclassify the area as ``serious'' until almost four years 
after the time the area would have been obligated to meet the 
attainment date for a ``serious'' area. We are therefore proposing in 
the alternative that the area should retain the ``serious'' 
classification. Since the attainment date for serious areas, 1999, 
elapsed almost 4 years ago, and BPA was not reclassified in time to 
have a prospective opportunity as a serious area to implement 
prescribed measures to attain by that date, EPA is therefore proposing 
to reclassify the area as ``serious'' with an attainment date of 
November 15, 2005. We think it would be appropriate in these 
circumstances to retain the serious classification but with a 
prospective attainment date, since BPA never had an opportunity to 
attain as a serious area. EPA solicits comments upon this proposed 
alternative approach.

VIII. What Is the Proposed New Attainment Date for the Beaumont/Port 
Arthur Area?

    In our April 16, 1999, proposal to reclassify BPA, we took comment 
on whether 21 months (or a different time frame) was adequate for a 
moderate area to attain the standard where the new attainment date had 
not yet lapsed, but where there was less time remaining than the Act 
had contemplated. The attainment date proposed for the BPA area under 
either Option 1 or 2 is as expeditiously as practicable but no later 
than November 15, 2005. That date is approximately 24 months from the 
date that a final rule resulting from this proposal is expected to be 
published in the Federal Register, which would provide approximately 
the same time frame as that proposed in our April 16, 1999, proposal.

IX. What Is the Proposed Date for Submitting a Revised SIP for BPA?

    EPA must address the schedule by which Texas is required to submit 
the SIP revision if we issue a final finding of failure to attain that 
reclassifies the area. Pursuant to section 182(i), EPA can adjust any 
applicable deadline (other than the attainment date) as appropriate for 
any area reclassified under section 181(b). We propose to have Texas 
submit the SIP revision on or before one year after the effective date 
of a final action on this notice. We believe the proposed SIP revision 
submittal date is reasonable.
    Should the area be classified serious, Texas is required to submit 
SIP revisions meeting the CAA's pollution control requirements for 
serious areas. The measures required by section 182(c) of the CAA 
include, the following:
    (1) Attainment and reasonable further progress demonstrations;
    (2) Clean-fuel vehicle programs;
    (3) The major source threshold lowered from 100 to 50 tons per year 
for volatile organic compounds (VOCs) and nitrogen oxide compounds 
(NOX);
    (4) More stringent new source review requirements;
    (5) An enhanced air monitoring program; and
    (6) Contingency provisions.
    Should the area be classified severe, Texas is required to submit 
SIP revisions meeting the CAA's pollution control requirements for 
severe areas. The measures required by section 182(c) of the CAA 
include all of those listed above for a serious area, and the 
following:
    (1) Attainment and reasonable further progress demonstrations;
    (2) A reformulated gasoline (RFG) program;
    (3) The major source threshold lowered from 50 to 25 tons per year 
for volatile organic compounds (VOCs) and nitrogen oxide compounds 
(NOX);
    (4) More stringent new source review requirements (1.3 to 1);
    (5) A Vehicle Miles Traveled (VMT) offset SIP;
    (6) Major Stationary Source fee for failure to attain; and
    (7) Contingency provisions.
    In a separate action, the EPA issued a proposed rule to implement 
the 8-hour ozone NAAQS (June 2, 2003, 68 FR 32082). The proposal 
contains two discrete frameworks to implement the 8-hour ozone standard 
while ensuring a smooth transition from the 1-hour standard to the new 
8-hour standard. Option 2 for transitioning from the 1-hour to the 8-
hour NAAQS proposes to retain the 1-hour standard, designations, and 
classifications for limited purposes until the area meets the 1 hour 
standard. For all remaining purposes, EPA would revoke the 1 hour 
standard and associated designations and classifications one year after 
the effective date of designations for the 8 hour standard. The notice 
also proposes allowing areas with an outstanding obligation to submit a 
1-hour ozone attainment demonstration to submit their 8-hour ozone 
attainment demonstration in lieu of the 1-hour attainment 
demonstration. For more detailed information, please see the Proposed 
Rule to Implement the 8-Hour Ozone NAAQS. We are also encouraging 
comments on the potential impact of this option on the BPA area and its 
SIP obligations if we finalize reclassification.

X. Why Are We Proposing To Withdraw the Attainment Demonstration, MCR 
and MVEB approvals and the RACM Finding, and What Are the Potential 
Impacts of the Proposed Withdrawals?

    We are proposing to withdraw our final approval of BPA's 2007 
attainment demonstration and the accompanying Motor Vehicle Emission 
Budget (MVEB), the MCR enforceable commitment, and the Reasonably 
Available Control Measures (RACM) finding. Having an earlier attainment 
date than 2007 requires the submission of a revised attainment 
demonstration SIP, a new MVEB, and a re-analysis of the RACM 
determination.
    To be consistent with the Court's reversal of the 2007 attainment 
date extension, and to respond to the remand, we propose to withdraw 
our May 15, 2001, approval of the 2007 attainment demonstration and 
MVEB, the MCR enforceable commitment, and the finding that the area was 
implementing all RACM. They are no longer applicable as they were based 
on a 2007 attainment date. A new attainment demonstration with a new 
MVEB, and a new RACM analysis, will be required to be submitted for the 
BPA area, when we take final reclassification action. Additionally, the 
Court affirmed the portion of our May 15, 2001, final action that 
treats as potential RACMs only those measures that would advance the 
attainment date and considers implementation costs when rejecting 
certain control measures in its December 11, 2002, decision. However, 
the Court remanded to EPA the analysis and conclusions regarding RACM 
in the BPA area. According to the Court's order, the analysis must: (1) 
demonstrate an examination of all

[[Page 36761]]

relevant data; and (2) provide a plausible explanation for the 
rejection of proposed RACMs including why the measures, individually 
and in combination, would not advance the BPA area's attainment date.
    Subsequent to the State's submittal, the EPA issued a memorandum 
clarifying its position on RACM analyses (memorandum from John S. Seitz 
and Margo Oge, December 14, 2000, titled ``Additional Submission on 
RACM from States with Severe 1-hour Ozone Nonattainment Area SIPS''). 
The memorandum clarifies that it is the State's responsibility to 
perform and submit a RACM analysis for EPA use in determining SIP 
approval. Even though the State is responsible for developing the new 
analysis, EPA will only consider as adequate an RACM analysis by the 
State containing the factors outlined in the Court's December 11, 2002, 
ruling, when evaluating the use of RACM in the SIP approval process. 
The RACM analysis will be due on or before the attainment demonstration 
due date.
    Withdrawing approval of the MVEB will result in reverting to the 
previously approved MVEBs for the purposes of transportation 
conformity. This would be the 1996 budget which was for VOCs only and 
did not include a NOX budget. Therefore, there will be no 
valid NOX budget in effect until a new MVEB (for both VOC 
and NOX) is submitted and found adequate. In order for 
transportation projects to proceed in the absence of an adequate 
NOX budget, an area must: (1) Pass a ``build/no-build'' 
emissions test, meaning that projected future regional emissions from 
the transportation system after making proposed changes must be lower 
than the projected emissions from the existing transportation system; 
and (2) demonstrate that the estimated future emissions will not exceed 
1990 levels. See 40 CFR 93.119(b).

XI. How Does the Recent Release of MOBILE6 Interact With 
Reclassification?

A. What Is the Relationship Between MOBILE6 and the Attainment Year 
Motor Vehicle Emissions Budgets?

    In addition to the fact that the motor vehicle emissions budgets 
contained in the State's November 12, 1999, and April 25, 2000, 
submittals are based on the year 2007, which is no longer an allowable 
attainment date under the decision in Sierra Club v. EPA, the current 
MVEB is not based upon the most recent mobile source emission factors 
model, MOBILE6.
    The motor vehicle emissions budgets submitted to fulfill the SIP 
revision requirements, including those of the attainment demonstration, 
must be prepared using the MOBILE6 emissions factor model. The State 
should refer to applicable guidance and policy, such as ``Policy 
Guidance for the Use of MOBILE6 in SIP Development and Transportation 
Conformity'' (memorandum from John S. Seitz and Margo Tsirigotis Oge, 
January 18, 2002) in preparing the budgets. The revised SIP must 
contain budgets based on MOBILE6 modeling.

B. What Is the Relationship Between MOBILE6 and the Post-1999 Rate-of-
Progress Requirement?

    The section 182(c)(2)(B) reasonable further progress requirement 
requires volatile organic compounds (VOC) or nitrogen oxides 
(NOX) reductions of 3 percent per year, averaged over a 3-
year period, until the attainment date, for serious and above ozone 
nonattainment areas designated and classified under the 1-hour ozone 
NAAQS. The EPA refers to these reductions as the rate-of-progress (ROP) 
requirement.
    The January 18 MOBILE6 policy indicates, among other things, that 
the motor vehicle emissions budgets in the post-1999 rate-of-progress 
plans will have to be developed using MOBILE6. In this policy we said:

    In general, EPA believes that MOBILE6 should be used in SIP 
development as expeditiously as possible. The Clean Air Act requires 
that SIP inventories and control measures be based on the most 
current information and applicable models that are available when a 
SIP is developed.\4\
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    \4\ See Clean Air Act section 172(c)(3) and 40 CFR 51.112(a)(1).

    Texas has not submitted ROP plans other than the original 15% ROP 
plan required for the BPA area, since under the Transport Policy the 
BPA area was not required to meet the post-1996 ROP requirements. The 
post-1996 until the attainment date ROP plans will need to be based 
upon MOBILE6.
    The post-1996 rate-of-progress requirement flows from section 
182(c)(2)(B) which requires serious and above areas to achieve a 3 
percent per year reduction in baseline VOC emissions (or some 
combination of VOC and NOX reduction from baseline emissions 
pursuant to section 182(c)(2)(C)) averaged over each consecutive three-
year period after November 15, 1996, until the attainment date.\5\ 
Baseline emissions are the total amount of actual VOC or NOX 
emissions from all anthropogenic sources in the area during the 
calendar year 1990, excluding emissions that would be eliminated under 
certain Federal programs and Clean Air Act mandates: phase 2 of the 
Federal gasoline Reid vapor pressure regulations (Phase 2 RVP) 
promulgated on June 5, 1990 (see 55 FR 23666); the Federal motor 
vehicle control program in place as of January 1, 1990 (1990 FMVCP); 
and certain changes and corrections to motor vehicle inspection and 
maintenance (I/M) programs and corrections and reasonably available 
control technology (RACT) that were required under section 
182(a)(2).\6\ We have issued guidance that provides detailed 
information for implementing the rate-of-progress provisions of section 
182.\7\ Basically our guidance requires the calculation of a target 
level of emissions for each rate-of-progress milestone year. The target 
level for any rate-of-progress milestone year is the 1990 baseline 
emissions decreased by the amount of baseline emissions that would be 
reduced by the 1990 FMVCP, the Phase 2 RVP program, and RACT fix-ups 
\8\ by that year and reduced by the amount of the mandated minimum 
reductions (15 percent VOC by 1996, and an additional nine (9) percent 
VOC, or VOC and NOX, by 1999, an additional 9 percent VOC, 
or VOC and NOX, by 2002, and an additional VOC, or VOC and 
NOX, by 2005). Under our guidance, the first rate-of-
progress milestone year target levels, for example, the 15 percent VOC 
reduction by 1996, starts with the 1990 base year emissions and then 
subtracts the effects of the 1990 FMVCP and Phase 2 RVP through 1996 
and also subtracts the required 15 percent VOC reduction. The 1999 VOC 
target level starts with the 1996 target level and subtracts the 
effects between 1996 and 1999 of the 1990 FMVCP and Phase 2 RVP and 
subtracts the required 9

[[Page 36762]]

percent post-1996 reduction. For each target level, our guidance 
requires the preparation of a 1990 base year inventory ``adjusted'' to 
the milestone year (the ``1990 adjusted base year inventory'') to 
account for the effects of the 1990 FMVCP and Phase 2 RVP by the 
milestone year. The adjusted inventory uses 1990 motor vehicle activity 
levels but emission factors computed by MOBILE6 for the applicable 
milestone year. For example, preparation of a rate-of-progress plan for 
the ROP milestone year of 1999, with NOX substitution, 
requires a 1990 base year inventory for both VOC and NOX, a 
1990 base year VOC inventory adjusted to 1996, and 1990 base year VOC 
and NOX inventories inventory adjusted to 1999. Preparation 
of a rate-of-progress plan for 2005 with NOX substitution 
requires a 1990 base year inventory for both VOC and NOX 
plus the following seven ``adjusted'' inventories: 1996 VOC; 1999 VOC 
and NOX; 2002 VOC and NOX; and 2005 VOC and 
NOX.
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    \5\ As a moderate area, BPA was not required to submit a ROP 
plan for a nine (9) percent reduction for the 3-year period November 
15, 1996, through November 15, 1999. However, as a serious or severe 
area the BPA area is required to submit a ROP plan through November 
15, 2005, the new attainment date.
    \6\ These requirements under section 182(a)(2) are known I/M and 
RACT corrections or I/M and RACT ``fix-ups.'' For further 
explanation of these see 57 FR at 13503-13504, April 16, 1992.
    \7\ This includes: Guidance on the Post-1996 Rate-of-Progress 
Plan (RPP) and Attainment Demonstration, EPA-452/R-93-015 (Corrected 
version of February 18, 1994). An electronic copy may be found on 
EPA's Web site at http://www.epa.gov/ttn/oarpg/t1pgm.html (file 
name: ``post96--2.zip'').
    \8\ The BPA area has no I/M program and so has no I/M fix-ups to 
consider. A vehicle I/M program would normally be listed as a 
requirement for a moderate ozone nonattainment area. However, the 
Federal I/M Flexibility Amendments of 1995 determined that urbanized 
areas with populations less than 200,000 for 1990 (such as Beaumont/
Port Arthur) are not mandated to participate in the I/M program (60 
FR 48033, September 18, 1995).
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    One consequence of the need to use MOBILE6 emission factors in the 
post-1996 rate-of-progress plans is that the area must recompute the 
1990 baseline emissions using the MOBILE6 emissions factor model to 
update the 1990 on-road mobile sources portion of the 1990 base year 
emission inventory. The area must also calculate post-1996 rate-of-
progress target levels by re-iterating the target levels for rate-of-
progress requirements for the 1996 milestone year.
    In addition to vehicle emissions budgets for any applicable 
milestone year, the post-1996 rate-of-progress requirement will also 
require the development of a revision to the 1990 base year emissions 
inventories and development of up to seven 1990 adjusted inventories 
(VOC for 1996, VOC and NOX for 1999, VOC and NOX 
for 2002, plus VOC and NOX for 2005).

XII. What Will Be the Rate-of-Progress and Contingency Measure 
Schedules?

A. Rate-of-Progress Milestones

    Section 182(c)(2)(B) requires serious and above areas to achieve a 
3 percent per year reduction in baseline VOC emissions (or some 
combination of VOC and NOX reductions from baseline 
emissions pursuant to section 182(c)(2)(C)) averaged over each 
consecutive three-year period after November 15, 1996, until the 
attainment date. Under the proposed new attainment date, attainment 
must be achieved as expeditiously as practicable but no later than 
November 15, 2005.
    Under the proposed schedule for submittal of the new SIP, the rate-
of-progress plans for the 1999 and 2002 milestone years will be due 
well after the November 15, 1999, and November 15, 2002, milestone 
dates. If sufficient actual reductions occurring by the November 15, 
1999, and November 15, 2002, milestone dates do not now exist, then 
Texas can only get reductions after the two milestone dates because, at 
this point, the State does not have the ability to require additional 
reductions for a period that has already passed. The passing of the 
deadlines does not relieve Texas from the requirement to achieve the 18 
percent reduction in emissions, but simply means that the 18 percent 
reduction must be achieved as expeditiously as practicable but no later 
than November 15, 2005.
    The approved SIP for the BPA area contains measures that generate 
additional benefits after November 15, 1996. Such measures include 
beyond-RACT reduction requirements on large sources of NOX.
    As discussed elsewhere in this document in the section titled 
``What is the Relationship Between MOBILE6 and the Post-1999 Rate-of-
Progress,'' the CAA specifies the emissions ``baseline'' from which 
each emission reduction milestone is calculated. Section 182(c)(2)(B) 
states that the reductions must be achieved ``from the baseline 
emissions described in subsection (b)(1)(B).'' This baseline value is 
termed the 1990 adjusted base year inventory. Section 182(b)(1)(B) 
defines baseline emissions (for purposes of calculating each milestone 
VOC/NOX emission reduction) as ``the total amount of actual 
VOC or NOX emissions from all anthropogenic sources in the 
area during the calendar year of enactment'' and excludes from the 
baseline the emissions that would be eliminated by certain specified 
Federal programs and certain changes to state I/M and RACT rules.\9\ 
The 1990 adjusted base year inventory must be recalculated relative to 
each milestone and attainment date because the emission reductions 
associated with the FMVCP increase each year due to fleet turnover.\10\
---------------------------------------------------------------------------

    \9\ These are the 1990 FMVCP, Phase 2 RVP, and the I/M and RACT 
fix-ups.
    \10\ See U.S. EPA, (1994), Guidance on the Post-1996 Rate-of-
Progress Plan (RPP) and Attainment Demonstration, EPA-452/R-93-015 
(Corrected version of February 18, 1994). An electronic copy may be 
found on EPA's Web site at http://www.epa.gov/ttn/oarpg/t1pgm.html 
(file name: ``post96--2.zip'').
---------------------------------------------------------------------------

    Therefore, since there are federal and state rules requiring 
reductions after November 15, 1996, EPA concludes that the BPA area has 
already implemented measures creditable towards the 1999 and 2002 rate-
of-progress milestones. However, we are not able to conclude that the 
area has sufficient measures to achieve the required 9 percent 
reduction by November 15, 1999, and an additional 9 percent reduction 
by November 15, 2002, in the absence of the rate-of-progress plans for 
both the 1999 and 2002 milestone years that document the calculations 
of the 1999 and 2002 target levels of emissions and how the SIP 
accounts for expected growth in emissions related activities, and 
contain the requisite demonstration that sufficient creditable 
reductions have or were projected to occur by November 15, 1999, and 
November 15, 2002, respectively. We have insufficient data concerning 
what the levels of reductions will be in the area by 1999 and 2002, 
since we do not know what the 1990 adjusted base year inventory for 
1996, 1999, and 2002 will be or the projected emissions growth for the 
periods of November 15, 1996, through November 15, 1999, and November 
15, 1999, through November 15, 2002. Nor do we have sufficient 
information to allow us to determine what date will be as expeditiously 
as practicable for this post-1996 18 percent rate-of-progress 
requirement.
    EPA proposes that the 1999 and 2002 rate-of-progress requirements 
be that Texas submit a rate-of-progress plan that demonstrates that the 
SIP has sufficient measures to make the required 18 percent reductions 
by a date as expeditiously as practicable.\11\ Texas must identify 
sufficient data and show why they meet the ``as expeditiously as 
practicable'' requirement. Such SIP revision will have to demonstrate 
that any date after November 15, 1999, by which the 1999 9 percent ROP 
reduction is achieved, as well as any date after November 15, 2002, by 
which the first post-1999 9 percent ROP reduction is achieved, is as 
expeditiously as practicable.
---------------------------------------------------------------------------

    \11\ EPA believes that such date cannot be any later than 
November 15, 2005.
---------------------------------------------------------------------------

B. 2005 Rate-of-Progress

    EPA is not proposing any change to the date by which the second 9 
percent increment of post-1999 rate-of-progress must be achieved. If 
the currently adopted and approved SIP measures and the current suite 
of Federal measures will not achieve the required rate-of-progress 
reductions, we believe the State has sufficient time to adopt and 
implement measures to achieve the required reductions in the BPA area 
by November 15, 2005.

[[Page 36763]]

C. Contingency for Failure To Achieve Rate-of-Progress by November 15, 
1999 and November 15, 2002

    The contingency measures plan must identify specific measures to be 
undertaken if the area fails to meet any applicable milestone, to make 
rate-of-progress, or to attain the NAAQS. With respect to the November 
15, 1999, and November 15, 2002, milestones, EPA believes that the 
contingency plan will need to account for any adjustment to the 
milestone dates.
    We also note that the presently-approved 1996 ROP/attainment 
contingency plan is automatically invoked if we take final action 
determining the BPA has failed to attain the standard. (See 63 FR 6659 
for the contingency measures.) Therefore, the State will be required to 
``backfill'' these contingency measures. Since the BPA area did not 
attain by the moderate area attainment date, and in order to fulfill 
the contingency measures requirements of sections 172(c)(9) and 
182(c)(9) of the CAA, it is proposed that the implementation of the 
failure-to-attain contingency measures in the current SIP will be 
triggered automatically upon the effective date that this proposed rule 
is finalized. Further, Texas will be required to submit a revision to 
the SIP containing additional contingency measures for its serious, or 
if appropriate, severe, area SIP to meet ROP requirements and backfill 
for failure to attain. See 57 FR 13498, 13511 (1992).

XIII. What Are the Impacts on the Title V Program?

    Upon reclassification to serious or severe, the major stationary 
source threshold will be lowered. Consequently, the State's Title V 
operating permits program regulations need to cover existing sources 
that will become subject to the appropriate lower major stationary 
source threshold. Any newly major stationary sources must submit a 
timely Title V permit application. ``A timely application for a source 
applying for a part 70 permit for the first time is one that is 
submitted within 12 months after the source becomes subject to the 
permit program or on or before such earlier date as the permitting 
authority may establish.'' See 40 CFR 70.5(a)(1). The 12 month (or 
earlier date set by the applicable permitting authority) time period to 
submit a timely application will commence on the effective date of any 
reclassification action.

XIV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. 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). This 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies 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.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4).
    This 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). This action also does not 
have Federalism implications because it does not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action 
merely proposes to approve a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. 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.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: June 9, 2003.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. 03-15521 Filed 6-18-03; 8:45 am]
BILLING CODE 6560-50-P