[Federal Register Volume 72, Number 249 (Monday, December 31, 2007)]
[Proposed Rules]
[Pages 74252-74255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25402]


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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 [email protected].
     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 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a 15 cent per page 
fee for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.

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 [email protected].

[[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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