[Federal Register Volume 73, Number 191 (Wednesday, October 1, 2008)]
[Rules and Regulations]
[Pages 56983-56995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22685]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R06-OAR-2007-0554; FRL--8721-8]


Clean Air Act Reclassification of the Houston/Galveston/Brazoria 
Ozone Nonattainment Area; Texas; Final Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting 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. EPA is also setting 
April 15, 2010, as the date for the State to submit a revised State 
Implementation Plan (SIP) addressing the severe ozone nonattainment 
area requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on October 31, 2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R06-OAR-2007-0554. All documents in the docket 
are listed at http://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through 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 Freedom 
of Information Act (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].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'', 
``us'', and ``our'' are used, we mean the EPA.

Table of Contents

I. What Is the Background for This Action?
II. What Action Is EPA Taking?
III. What Comments Did EPA Receive on the December 31, 2007, 
Proposal and How Has EPA Responded to Them?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

    The HGB area consists of Brazoria, Chambers, Fort Bend, Galveston, 
Harris, Liberty, Montgomery and Waller counties. On April 30, 2004, we 
classified the area as a moderate nonattainment area for the 1997 8-
hour ozone standard, with an attainment date no later than June 15, 
2010 (69 FR 23858). On June 15, 2007, we received a request from the 
Governor of Texas seeking voluntary reclassification of the HGB area 
from a moderate nonattainment area to a severe nonattainment area under 
the 1997 standard. On December 31, 2007, we proposed to reclassify the 
HGB area to a severe nonattainment area for the 1997 8-hour ozone 
standard (72 FR 74252). In our proposal we discussed the consequences 
of reclassification. We also proposed and solicited comment on a range 
of dates, from December 15, 2008 to April 15, 2010, for the State to 
submit a revised SIP addressing the severe ozone nonattainment 
requirements. In this final rulemaking, for the reasons set forth below 
in Section II and in the responses to comments, we are (1) 
reclassifying the HGB area as a severe nonattainment area for the 1997 
8-hour ozone standard and (2) selecting April 15, 2010 as the deadline 
by which the State must submit a revised SIP addressing the applicable 
severe area requirements.\1\
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    \1\ In our December 31, 2007 proposal we stated that a revised 
8-hour SIP submittal must contain fees on major sources if the area 
fails to attain the standard (CAA 182(d)(3) and 185). Currently EPA 
is developing regulations and guidance to address section 185 fees. 
The regulations and guidance will supersede any conflicting 
requirements in this final action.
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II. What Action Is EPA Taking?

A. Reclassification of the HGB Area

    After fully considering all comments received on the proposed rule 
and pursuant to CAA section 181(b)(3), the HGB area is reclassified as 
a severe nonattainment area for the 1997 8-hour ozone standard. The new 
severe area attainment date for the HGB area is as expeditiously as 
practicable, but no later than June 15, 2019. The plain language of CAA 
section 181(b)(3) mandates that we approve the request to reclassify 
the area to severe, as requested by the Governor of Texas, and that we 
have no discretion to deny the request. Section 181(b)(3) provides in 
relevant part that ``[t]he Adminstrator shall grant the request of any 
State to reclassify a nonattainment area in that State in accordance 
with table 1 of subsection (a) of this section to a higher 
classification.''
    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 section 182(c)(1)); (2) an enhanced vehicle 
inspection and maintenance program (CAA section 182(c)(3)); (3) a clean 
fuel vehicle program or an approved substitute (CAA section 182(c)(4)), 
and (4) gasoline vapor recovery for motor vehicle refueling emissions 
(CAA section 182(b)(3) \2\). The revised SIP must also meet the severe 
area requirements, including: (1) An attainment demonstration (40 CFR 
51.908); (2) provisions for reasonably available control technology 
(RACT) and reasonably available control

[[Page 56984]]

measures (RACM) (40 CFR 51.912); (3) reasonable further progress (RFP) 
reductions in volatile organic compound (VOC) and nitrogen oxide 
(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 sections 172(c)(9) and 182(c)(9)); (5) transportation 
control measures to offset emissions from growth in vehicle miles 
traveled (CAA section 182(d)(1)(A)); (6) reformulated gasoline (CAA 
section 211(k)(10)(D)); and (7) NSR permits (40 CFR part 165). 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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    \2\ 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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B. Deadline for Submission of Revised SIP

    In our proposal to this final rule, we identified a range of dates 
and requested supporting information to consider in setting the 
appropriate severe classification submittal date. We received a number 
of comments discussing the full range of dates offered. We considered 
each comment carefully before setting a submission date. Since CAA 
section 181(b)(3) does not establish a precise timeframe for submitting 
an attainment plan under a voluntary reclassification request, we 
reviewed the information provided by commenters and other information 
in the record before us and the particular set of circumstances related 
to HGB to establish a deadline that is consistent with and that will 
ensure that the 8-hour ozone standard will be attained as expeditiously 
as practicable but no later than June 15, 2019. After fully considering 
all comments received on the proposed rule and pursuant to CAA section 
181(b)(3) we find that April 15, 2010, is the appropriate SIP submittal 
date for a revised SIP.
    In selecting the April 15, 2010 date, we considered that this would 
allow the amount of time necessary to incorporate more recently 
available information into the photochemical modeling and provide time 
for control strategy development. The new information includes improved 
meteorological information available from the Texas Air Quality Study 
II (TexAQS II study) which took place in the 2005 and 2006 time period, 
improved emissions data from the HRVOC source monitoring rules that 
took effect in 2006, greater ambient data available from the TexAQS II 
study and incorporation of more advanced modeling techniques. An 
earlier date for submissions would have required the use of existing 
modeling episodes without the benefit of this more recent data. EPA 
believes, with this more robust data set, a more reliable control 
strategy can be developed. We discuss the points in more detail below.
    Historically, the Houston area meteorology has been very difficult 
to model due to a combination of issues. The Houston area meteorology 
is very complex and is impacted by both a land/sea breeze interaction 
and a bay breeze function that make meteorological modeling of the area 
difficult. Modeling of other meteorological phenomena such as frontal 
passages/weak fronts, nocturnal jets, convergence zones, etc.; are also 
difficult to model and made even more difficult by the land/sea/bay 
breeze influences. TexAQS II data includes meteorological observations 
from numerous surface sites, two towers, hundreds of balloons, five 
aircraft, a research vessel and an offshore platform. These data will 
help to characterize important meteorological phenomena affecting ozone 
in the HGB area, including land/sea/bay breeze, nocturnal jets, 
stagnation, frontal passages, dispersion and mixing of ozone 
precursors, and transport.
    Photochemical modeling of the Houston Area is also complicated by 
the significant difference between reported emissions from industrial 
sources and emissions estimated from actual monitored emissions from 
ambient concentrations. Previous 1-hour modeling included in a 2004 HGB 
1-hour ozone SIP showed the benefit of modeling episodes that had more 
data collected than normal, such as in a field study. In the past, 
adjustments to reported emissions have been necessary to resolve the 
discrepancy between the emissions inventory and emissions estimated 
from ambient measurements. The field study data from 2005 and 2006 will 
help identify and quantify any continuing discrepancies between 
reported and actual emissions. During 2006, intensive monitoring was 
conducted that included monitoring from aircraft, intensive monitoring 
from a ship based platform, additional ground monitoring, collection of 
hourly specific emission inventory information for over 100 industrial 
facilities, and numerous additional meteorological monitoring sites. 
TCEQ has chosen to include episodes from 2006 that will benefit from 
the additional data and will result in higher confidence in any 
emission inventory adjustments that are done and the resulting 
photochemical modeling.
    In addition, a large amount of federal, state, and scientific 
community resources have been enlisted to refine and analyze the data 
collected for use in the new 2005 and 2006 modeling. Analyses from the 
TexAQS II study only recently have become available in 2007 and 2008, 
and are critical to guiding the TCEQ modeling development and 
validating the results. Texas should be allowed time to incorporate 
these results, since otherwise the modeling would then likely need to 
be redone to incorporate these findings. We expect the TexAQS II data 
will contribute to better understanding of the adequacy of emissions 
inventories in several key areas, including shipping, onroad mobile 
sources, industrial VOCs and formaldehyde. It should also aid in the 
representation of chemical pathways in the models, since key parameters 
controlling the formation and destruction of ozone in the HGB area were 
investigated. Texas is also engaged in a number of activities to 
improve the model's ability to replicate the complex interactions 
leading to high ozone, including model enhancements to incorporate 
temperature variations, better land use and land cover data, improved 
information on biogenic emissions, better data for emissions and 
monitored concentrations, and advanced modeling techniques. See TCEQ 
Comments, page 3. TCEQ is modeling more than 50 episode days while 
making improvements in the modeling process and incorporating TexAQS II 
results.
    TCEQ estimates it will take until March 2009 to complete the 
modeling work and associated quality assurance and peer review to 
support a proposed modeling and attainment demonstration. An April 15, 
2010 submission date will allow a little more than a year for control 
strategies to be proposed and adopted. EPA believes that a year's 
period of time is as expeditious as practical for the development of 
the necessary control strategies given the complexity and difficulty of 
the HGB area ozone problem. The HGB area has one of the most severe 
ozone problems in the country. High ozone results from emissions both 
from the large industrial sector and the large urban population. The 
necessary controls to reach attainment are likely to be far reaching 
and technology forcing. Texas has already initiated a stakeholder 
process for strategy development so that they will be well positioned 
when the modeling work is completed.
    An earlier date would mean the TCEQ would have to rely on a less 
reliable 2000 modeling episode that would yield

[[Page 56985]]

more uncertainty to the modeling analysis, and suspend work on the new 
modeling episodes. At best, a June 2009 date may have included initial 
work with the 2005 and 2006 episodes in addition to the 2000 episode, 
but would not have incorporated much of the data that was collected 
during TexAQS II, and thus, would have more uncertainties and would be 
less representative. A deadline for submission of the attainment 
demonstration that is earlier than April 2010 would inhibit the 
development of effective attainment strategies based upon new modeling 
of ozone episodes that occurred in 2005 and 2006, the more recent 2006 
emissions inventory, and incorporation of findings from TCEQ's most 
recent field study of ozone formation, TexAQS II. Relying on the 2000 
episode likely would result in the need to subsequently revise the SIP, 
and would delay the development of effective and defensible control 
strategies. Overall, it is EPA's judgment that the longer submittal 
date will give TCEQ the necessary time to develop the modeling and 
control strategies using the 2005 and 2006 episodes with the TexAQS II 
field study data resulting in a more representative and accurate 
attainment demonstration.
    In addition to modeling, TCEQ must also analyze emissions data to 
develop ozone control strategies. To do so, TCEQ must incorporate the 
findings from TexAQS II into its SIP planning, and must also rely on 
the 2006 NOX and VOC emissions inventory, which was not 
expected to be complete until early 2008 and would therefore not allow 
for some early aspects of control strategy development until 2008. It 
is important to use the 2006 inventory since it will provide the most 
accurate VOC emissions data, in part as a result of monitoring and 
testing requirements established in the HRVOC rules for flares, vents 
and cooling towers. The 2006 point source inventory represents years of 
efforts to improve emissions data, including more accurate speciation 
and reporting of VOC emissions.
    In summary, the April 15, 2010 is appropriate as the submission 
date due to: (1) The complexity in developing and implementing 
effective emission reductions for the area; and (2) the opportunity for 
a more robust attainment demonstration plan that relies on better data 
and modeling. Developing and implementing effective emission reductions 
for the area is complex due to its: (1) Complex coastal meteorology; 
(2) large urban population; (3) large industrial area; and (4) the 
current underestimation issues of industrial emissions. With this 
submission, more recent data and modeling episodes may be used to 
identify control strategies and demonstrate attainment of the standard. 
In our December 31, 2007, proposal, we stated that the new attainment 
demonstration should be based on the best information available (72 FR 
74252, 74254). A SIP revision submission date of April 15, 2010, allows 
for the best information to be used to produce an attainment 
demonstration that is representative, robust and accurate. This date is 
most likely to ensure that the 8-hour ozone standard will be attained 
as expeditiously as practicable but no later than June 15, 2019.

III. What Comments Did EPA Receive on the December 31, 2007, Proposal 
and How Has EPA Responded to Them?

    We received 35 comments on our December 31, 2007 proposal from 
citizens, public interest groups, business groups, elected officials 
and governmental organizations. The comments we received on our 
proposal can be found on the internet in the electronic docket for this 
action. To access the comments, 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. The 
discussion below addresses the comments we received on our proposed 
action. The discussion addresses comments received on (1) 
reclassification of the area to severe, (2) the date for a revised SIP 
submittal, and (3) relief of CAA attainment demonstration and related 
requirements.

A. Reclassification of the Area to Severe

    Comment: Comments were received that EPA should not reclassify the 
area to severe. Comments were submitted that (1) EPA is limited by 
language in CAA section 181(b)(3) that EPA ``* * * shall grant the 
request of any State to reclassify a nonattainment area in that State 
in accordance with table 1 of subsection (a) to a higher 
classification'' (emphasis added); (2) table 1 had been superseded by 
the 8-hour ozone standard table at 40 CFR 51.903; and (3) the 
appropriate 8-hour ozone design value range for table 1 is 0.107-0.199 
parts per million (ppm), which would make the area's classification 
``serious''. Comments were also submitted that reclassification to 
severe, which is two levels higher than moderate, conflicts with other 
CAA provisions for ozone nonattainment areas (CAA Title I, Part D, 
Subpart 2), and EPA's action on the State's reclassification request 
must be reasonable.
    Response: We reiterate our position that the plain language of 
section 181(b)(3) mandates that we approve the request to reclassify 
the area to severe, as requested by the Governor of Texas, and that we 
have no discretion to deny the request. Section 181(b)(3) provides in 
relevant part that ``[t]he Adminstrator shall grant the request of any 
State to reclassify a nonattainment area in that State in accordance 
with table 1 of subsection (a) of this section to a higher 
classification.'' Several commenters agreed with EPA's position on this 
matter as well as the position that the State could select the higher 
classification best suited to its needs. EPA agrees with these 
commenters.
    One commenter cited to our Phase 1 final rule to implement the 8-
hour ozone national ambient air quality standard (NAAQS) response to 
comments section for EPA's rationale for voluntary reclassifications 
(69 FR 23951, 23962). We agree with this commenter. In the response to 
comments on that rule, we stated that voluntary reclassification is the 
mechanism defined in the CAA for states to obtain additional time for 
attainment when necessary. In the Phase 1 rule responses to comments, 
we stated:

    A State can receive more time to attain by voluntarily 
submitting a request to EPA for a higher classification--including 
the classification they had under the 1-hour NAAQS. The CAA (Section 
181 (b)(3)) directs EPA to grant a State's request, and to publish 
notice of the request and EPA's approval.

This is precisely the situation in HGB. It was designated severe under 
the 1-hour standard and under the 8-hour standard it was designated as 
moderate. Texas is now asking for the area to be reclassified to severe 
under the 8-hour standard. We further stated that we recognized that 
voluntary reclassification is a legitimate option under the CAA, and 
may be an attractive option if the State is unable to develop a plan 
that demonstrates that an area will attain within the time period for 
its assigned classification.
    Table 1 of CAA section 181(a) (for the 1-hour ozone standard) and 
table 1 of 40 CFR 51.903 (for the 8-hour ozone standard) list 
classifications for nonattainment designations, the ozone design values 
used for initial designations, and the maximum period for attainment of 
the standard. Table 1 from 40 CFR 51.903 is reprinted below. Table 1 
refers to classifications ranging from marginal to extreme. For the 
reasons set forth below, in acting on a request for voluntary 
reclassification, we are not constrained by the 8-hour design values 
for initial classifications

[[Page 56986]]

set forth in table 1. Therefore the request by Texas to reclassify the 
area from moderate to severe is in accordance with table 1.

    Table 1--Classification for 8-hour Ozone NAAQS for Areas Subject to Sec.   51.902(a) (From 40 CFR 51.903)
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                                                                                                 Maximum period
                                                                                                 for attainment
                                                                                                 dates in state
                                                                                                 plans  (years
                 Area class                                                   8-hour design     after  effective
                                                                            value (ppm ozone)       date of
                                                                                                 nonattainment
                                                                                               designation for 8-
                                                                                                  hour NAAQS)
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Marginal...................................  From up to \1\...............              0.085                  3
                                                                                        0.092
Moderate...................................  From up to \1\...............              0.092                  6
                                                                                        0.107
Serious....................................  From up to \1\...............              0.107                  9
                                                                                        0.120
Severe-15..................................  From up to \1\...............              0.120                 15
                                                                                        0.127
Severe-17..................................  From up to \1\...............              0.127                 17
                                                                                        0.187
Extreme....................................  Equal to or above............              0.187                20
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\1\ But not including.

    Some commenters contended that a severe classification is not 
justified by the HGB area's air quality design value as interpreted by 
table 1, and thus the request is not in accordance with table 1 and EPA 
is not mandated to grant the request. This contention misreads section 
181(b)(3).
    The plain meaning of CAA section 181(b)(3) is clear, and, in 
addition, if one compares it with the other provisions of section 
181(b) of the CAA it supports our position that Congress meant there to 
be no discretion on the part of EPA in approving a voluntary 
reclassification, and the State can request any higher reclassification 
it deems appropriate. The authority to seek a reclassification beyond 
the next highest classification is evident when one contrasts the 
statutory language governing voluntary reclassification in section 
181(b)(3) with statutory language governing reclassification upon 
failure to attain in the previous paragraph of the CAA. In section 
181(b)(2), Congress specified that:

    Except for any Severe or Extreme area, any area that the 
Administrator finds has not attained the standard by [the attainment 
date] shall be reclassified by operation of law in accordance with 
the table 1 of subsection (a) of this section to the higher of--
    (i) The next higher classification for the area, or
    (ii) The classification applicable to the area's design value at 
the time of the [reclassification] notice * * *

    The specific direction in section 181(b)(2) that, upon failure to 
attain, a nonattainment area shall be reclassified to the higher of 
``the next higher classification'' or ``the classification applicable 
to the area's design value'' contrasts with the language of section 
181(b)(3), which states that a voluntary reclassification may be to ``a 
higher classification.'' In section 181(b)(3), there is no reference to 
the area's design value or limitation that the reclassification must be 
equivalent to the area's design value. Under section 181(b)(3), 
reference to ``in accordance with table 1'' means in accordance with 
the area classification categories of marginal to extreme, not air 
quality design values used for initial classifications. Section 
181(b)(3), unlike section 181(b)(2), does not direct comparison to the 
area's air quality design value. As in section 181(b)(2), Congress also 
referred explicitly to design values in section 181(a), providing that 
an ozone nonattainment area's initial classification should be ``based 
on the design value of the area.'' No such limitation is placed on a 
voluntary reclassification under section 181(b)(3). As one commenter 
pointed out, reclassification from ``moderate'' to ``severe'' is in 
accordance with table 1, since it defines the range of what is a 
``higher classification'' and the associated attainment dates. If 
Congress had meant to restrict or specifically direct what 
classification a State could choose, it would have written similar 
limiting language into section 181(b)(3), and would have included, as 
it did in section 181(b)(2), a specific time for determining the design 
value of the area. (Without such a timeframe being defined, it is not 
possible to determine the area's design value). While both sections 
181(b)(2) and 181(b)(3) provide that reclassification shall be ``in 
accordance with table 1 of subsection (a)'', section 181(b)(3) does not 
direct that the design value of the area being reclassified fall within 
the range of design values corresponding to a particular 
classification. Even under section 181(b)(2), reclassification is not 
required to be equivalent to the air quality of the area at the time of 
classification. Under section 181(b)(2), an area being reclassified is 
not required to match its design value to the design value for the 
classification category in table 1, but rather to the ``higher'' of the 
next classification or its design value at the time of 
reclassification. It would be illogical for Congress, as it did, to 
require areas to be reclassified to classifications higher than their 
design value under the mandatory provisions of section 181(b)(2), while 
prohibiting such reclassification under the voluntary provision of 
181(b)(3). Nor is there any basis, as a commenter suggests, to construe 
the reference in section 181(b)(3) to reclassification to ``a higher 
classification'' to be limited to ``the next higher classification'' or 
a single classification level. Therefore EPA's approval of the 
voluntary reclassification from moderate to severe is reasonable and in 
keeping with the statutory provisions, which provide EPA no discretion 
to deny a request for voluntary reclassification to a higher 
classification.
    A commenter's argument that, in order to be ``in accordance with 
table 1,'' the area's design value at the time of reclassification must 
match the design value for initial classification in

[[Page 56987]]

table 1, contradicts the commenters' own position that the area should 
be reclassified to serious, since, according to the commenter, the more 
recent design values do not match the severe area concentrations. The 
area's most recent design values are 103 parts per billion (ppb) in 
both 2005 and 2006, and 96 ppb in 2007--these levels match the design 
value for initial classification for moderate areas. Of course, as 
pointed out above, section 181(b)(3) makes no reference to design 
values nor any timeframe for determining them--thus there is confusion 
in the commenters' discussions about the appropriate dates for 
determining the area's design value, with one commenter arguing that 
``the HGB area's design value is most consistent with 0.107-0.119 
ppm,'' the serious range, EDF Comments at 8, while another notes that 
the ``2005 eight-hour design value was 103 ppb''. GHASP Comments, at 2. 
Thus the commenters' argument that a voluntary reclassification can 
only be to a classification that matches the area's design value, is 
further undermined by the indeterminacy of the relevant design value 
with regard to section 181(b)(3). To the extent that the most recent 
design values match the initial classification levels for moderate 
areas, this also conflicts with the commenters' assertions that the 
area should be reclassified to serious and not severe.
    Other provisions in the CAA do not conflict with our action to 
reclassify the area to severe. Sections 181(a)(4) and (5) were cited in 
a comment. Neither section has anything to do with the voluntary 
reclassification provision in section 181(b)(3). CAA section 181(a)(4) 
gives the Administrator discretion, within 90 days of an original 
classification, to ``adjust'' that initial classification upwards or 
downward if an area's design value places it within 5 percent of the 
next classification. It has no bearing on the circumstances for 
granting a request for voluntary reclassification as set forth in 
section 181(b)(3). For more information, please see our September 22, 
2004, action reclassifying certain 8-hour ozone nonattainment areas 
from moderate to marginal under section 181(a)(4) (69 FR 56697). CAA 
section 181(a)(5) simply sets forth the criteria for granting 
attainment date extensions if an area is not being reclassified, and it 
does not affect or shed light on the criteria for granting voluntary 
reclassifications. It provides for a maximum of two 1-year extensions 
of the attainment date for the 1-hour ozone NAAQS. The attainment date 
can be extended--without reclassifying the area--if the State has 
complied with all requirements and commitments pertaining to the area 
in the applicable implementation plan and there was no more than 1 
exceedance of the 1-hour ozone NAAQS preceding the extension year. CAA 
section 181(a)(4) contains very specific language regarding how to make 
immediate, minor adjustments to initial classifications, and section 
181(a)(5) contains specific language on how to extend an attainment 
date when an area is not being reclassified. Congress addressed 
separately and equally specifically voluntary reclassifications in 
section 181(b)(3). Thus EPA interprets the voluntary reclassification 
differently from these other provisions. Based on the language in CAA 
section 181(b)(3), our action is consistent with the CAA, and it is 
reasonable. Section 181(a)(4) applies only in limited circumstances to 
initial designations, and is not applicable here. Section 181(a)(5) 
applies to circumstances for extending attainment dates without 
changing the classification of the area, and is not applicable here. 
Neither provision conflicts with or limits the scope of section 
181(b)(3).
    Comment: Several comments were received stating that HGB had never 
attained any standard and that further delay in attaining the standard 
by granting the reclassification is not warranted. Comments were 
received that the goal of the SIP is attainment of the 8-hour ozone 
standard, not simply a reduction in ozone precursors. Comments 
contended that TCEQ has repeatedly failed to reach this goal and to 
implement adequate control measures, and that sanctions should be 
imposed and that it should not be rewarded with extra time. One 
commenter cited an April 2007 letter from the Mayor of Houston and 
Harris County Judge Emmett, stating that they opposed the idea of a 
double ``bump-up'' and that the resulting delay in attainment was 
unacceptable.
    Response: As stated above, voluntary reclassification is a 
legitimate option under the CAA, and it is an appropriate option if the 
State is unable to develop a plan that demonstrates that an area will 
attain within the time period for its assigned classification. Texas' 
8-hour submittal demonstrated that the State could not model attainment 
by its moderate attainment date. Moreover, under the Act, EPA does not 
have discretion to deny a request for voluntary reclassification.
    With respect to the April letter from the Mayor of Houston and 
Judge Emmett, subsequent comments from them on EPA's proposed 
reclassification were more supportive of EPA's proposed action than the 
April 2007 letter indicated. These comments stated that ``whether the 
EPA determines that a single or double bump up in classification for 
the HGB is appropriate, our concern remains the timely attainment of 
the NAAQS. The control measures included in the SIP must ensure that 
the NAAQS is attained as expeditiously as practicable as required by 
the Clean Air Act.'' The comments noted that ``[w]hile the City and 
County are concerned that the SIP submittal date of 2010 could delay 
achieving attainment, the TCEQ believes that this extended period will 
allow TCEQ to develop the most effective SIP possible. This up front 
investment of time should result in a SIP that will not have to be 
significantly changed or corrected to include revised data. Developing 
a quality SIP should avoid delays in implementation.'' EPA notes that, 
under the Clean Air Act, when an area is reclassified, it must still 
attain the standard as expeditiously as practicable. Thus the concerns 
expressed in the comment should be alleviated by an appropriate 
attainment demonstration.
    As set forth in other responses to comments, EPA does not believe 
it appropriate to impose sanctions for attainment demonstration-related 
moderate area SIP requirements, where the area has been unable to 
demonstrate attainment by the moderate area deadline, is being 
reclassified to severe, and is in the process of developing a severe 
area attainment demonstration and related requirements. As set forth in 
the proposal, Texas has submitted other non-attainment demonstration-
related moderate area requirements, and as a former 1-hour severe ozone 
nonattainment area, is already implementing other severe area 
requirements. Once reclassified the area is no longer required to 
submit an attainment demonstration for the prior classification, so 
sanctions for failure to submit such a SIP would be inappropriate. The 
area has demonstrated that it could not develop a reasonable attainment 
demonstration for a moderate area deadline so sanctions could never be 
cured in the area, if applied.
    Comment: A comment was received that if we grant Texas' 
reclassification request of the area to severe that the approval should 
be conditioned upon adoption by Texas of further control measures 
within 12 months of approval of the reclassification.
    Response: CAA section 181(b)(3) directs EPA to grant a State's 
request to reclassify a nonattainment area in that State to a higher 
classification. Section

[[Page 56988]]

181(b)(3) does not authorize EPA to attach conditions (such as 
additional control measures) upon our granting of such a request, but 
there are consequences to being reclassified. Reclassification to a 
severe designation will result in the HGB ozone nonattainment area 
being subjected to severe 8-hour ozone nonattainment area requirements, 
including New Source Review (NSR) and Title V permit requirements, in 
addition to applicable 1-hour requirements. For example, Texas will 
have to meet the more stringent reasonable further progress (RFP) 
reductions in VOC and NOX emissions required by a severe 
classification (40 CFR 51.910).
    In addition, TCEQ has already initiated stakeholder meetings 
addressing additional control measures. CAA section 172(c)(1) requires 
SIPs for all nonattainment areas to provide for the implementation of 
all reasonably available control measures (RACM) as expeditiously as 
practicable. When we receive the HGB attainment demonstration for the 
1997 ozone standard, we will review it to determine whether it provides 
for all RACM necessary to attain the standard as expeditiously as 
practicable and provides for implementation of those measures as 
expeditiously as practicable. For more information on RACM, please see 
our ``Guidance on Reasonably Available Control Measures (RACM) 
Requirement and Attainment Demonstration Submissions for Ozone 
Nonattainment Areas,'' (Memorandum from John Seitz, Director, Office of 
Air Quality Planning and Standards, November 30, 1999, available at 
http://www.epa.gov/ttn/oarpg/t1/memoranda/revracm.pdf). With respect to 
the commenter's suggestion that additional controls be adopted and 
submitted within 12 months, please see Section II above, as well as 
EPA's responses to comments on the timing of submission for the revised 
SIPs that are due as a result of reclassification to severe.
    Comment: A comment was received that reclassification of the area 
to severe subjects the action to review under Executive Order 12866 
(Regulatory Planning and Review, 58 FR 51735, October 4, 1993) as a 
significant regulatory action. The commenter also noted that protecting 
children from environmental health risks is a priority concern, as 
expressed in Executive Order 13045 (Protection of Children From 
Environmental Health Risks and Safety Risks, 62 FR 19885, April 23, 
1997).
    Response: We continue to believe that reclassification of the area 
to severe is not a ``significant regulatory action'' under Executive 
Order 12866, and therefore is not subject to Executive Order 12866. 
Voluntary reclassifications to a higher classification under section 
181(b)(3) of the CAA are based solely on requests by the State, and we 
are required under the CAA to grant them. As we explained in response 
to comments above, EPA's approval of the State's request for 
reclassification is mandatory and is in accordance with the 
requirements of section 181(b)(3) of the CAA. Contrary to commenter's 
contention, the reclassification of HGB from moderate to severe is 
consistent with the statutory provisions. With respect to the 
commenter's concern regarding E.O. 13045, EPA interprets that provision 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the E.O. has the potential to influence the regulation. This action is 
not subject to E.O. 13045 because it grants a voluntary 
reclassification, and EPA's approval is mandatory. Moreover, regardless 
of its classification, the HGB area remains subject to the obligation 
to attain as expeditiously as practicable.

B. Date for a Revised SIP Submittal

    Comment: Comments were received opposing April 15, 2010, the date 
requested by TCEQ, as the submission date for a SIP revision. One 
commenter stated that: (1) There is no precedent for such a long 
timeframe; (2) for the San Joaquin Valley area voluntary 
reclassification, EPA allowed only 7 months to submit a new attainment 
plan and 12 months to incorporate new extreme area SIP elements; (3) 
EPA should treat these two voluntary ``bump-up'' requests similarly and 
apply an equally short SIP submission date to the HGB area; and (4) EPA 
should not reward delay by Texas in implementing all RACM and 
completing an attainment demonstration with a protracted timeframe in 
which to develop a new SIP.
    One commenter stated that: (1) A state is generally provided 12 
months to modify and revise the applicable SIP if there was a failure 
to meet an attainment date; (2) when EPA finds that the applicable 
implementation plan for any area is substantially inadequate to attain 
or maintain the relevant NAAQ standard, it has the authority to require 
the state to revise the plan and submit a new plan no later than 18 
months after notice to the state of the need for revision; (3) the 
initial SIP submission deadline when drafting a plan for the first time 
``from scratch'' is a maximum of three years; and (4) it seems 
unreasonable to need 34 months to revise a SIP that was revised in May 
2007. Another commenter stated that it was unacceptable that TCEQ would 
be allowed to delay until April 2010 before it had to adopt further 
control measures. Other commenters stated that the sooner we reach the 
point when planning stops and action starts, the sooner we will all 
enjoy the benefits of cleaner, healthier air.
    Response: In our proposal to this final rule, we identified a range 
of dates and requested supporting information to consider in setting 
the appropriate severe classification submittal date. Many of these 
factors were discussed by the commenters who advocated a shorter 
timeframe than requested by Texas. We considered each comment carefully 
before setting a submission date. Since CAA section 181(b)(3) does not 
establish a precise timeframe for submitting an attainment plan under a 
voluntary reclassification request, we must review the record before us 
and each particular set of circumstances to establish a deadline that 
is consistent with and that will ensure that the 8-hour ozone standard 
will be attained as expeditiously as practicable but no later than June 
15, 2019. See section 182(i), which provides that when reclassifying 
areas under section 181(b)(2), EPA may adjust applicable deadlines for 
requirements other than attainment dates to the extent such adjustment 
is necessary or appropriate to assure consistency among the required 
submissions. EPA believes that, by analogy, it would be logical to 
assume that EPA has this same authority in granting reclassifications 
under section 181(b)(3). We requested in the proposal that commenters 
state their choice of a submittal date and justify their selection. 
After reviewing all the justifications before us, we have determined 
the April 15, 2010, date is appropriate and reasonable based on the 
totality of the information. As we set forth in Section II above, and 
in our responses to comments, we believe that TCEQ and the other 
commenters supporting an April 15, 2010, date presented compelling 
support for this submission deadline.
    Historically, the Houston area has been very difficult to model due 
to a combination of issues. The Houston area meteorology is very 
complex and is impacted by both a land/sea breeze interaction and a bay 
breeze function that make meteorological modeling of the area 
difficult. Modeling of other meteorological phenomena such as frontal 
passages/weak fronts, nocturnal jets, convergence zones, etc. are also 
difficult to model and made even more difficult by the land/sea/bay 
breeze

[[Page 56989]]

influences. TexAQS II data includes meteorological observations from 
numerous surface sites, two towers, hundreds of balloons, five 
aircraft, a research vessel and an offshore platform. These data will 
help to characterize important meteorological phenomena affecting ozone 
in the HGB area, including land/sea/bay breeze, nocturnal jets, 
stagnation, frontal passages, dispersion and mixing of ozone 
precursors, and transport.
    Photochemical modeling of the Houston Area is also complicated by 
the significant difference between reported emissions from industrial 
sources and emissions estimated from ambient concentrations. Previous 
1-hour modeling included in a 2004 HGB 1-hour ozone SIP highlights the 
benefit of using modeling episodes that had more data collected than 
normal, such as in a field study. In the past, adjustments to reported 
emissions have been necessary to resolve the discrepancy between the 
emissions inventory and emissions estimated from ambient measurements. 
The field study data from 2005 and 2006 will help identify and quantify 
any continuing discrepancies between reported and actual emissions. 
During 2006 intensive monitoring was conducted that included monitoring 
from aircraft, intensive monitoring from a ship based platform, 
additional ground monitoring, collection of hourly specific emission 
inventory information for over 100 industrial facilities, and numerous 
additional meteorological monitoring sites. TCEQ has chosen to include 
episodes from 2006 that will benefit from the additional data and will 
result in higher confidence in any emission inventory adjustments that 
are done and also in the resulting photochemical modeling.
    In addition, a large amount of federal, state, and scientific 
community resources have been enlisted to refine and analyze the data 
collected for use in the new 2005 and 2006 modeling. Analyses from the 
TexAQS II study only recently have become available in 2007 and 2008, 
and are critical to guiding the TCEQ modeling development and 
validating the results. Texas should be allowed time to incorporate 
these results, since otherwise the modeling would likely need to be 
redone to incorporate these findings. We expect the TexAQS II data will 
contribute to better understanding of the adequacy of emissions 
inventories in several key areas, including shipping, onroad mobile 
sources, industrial VOCs and formaldehyde. It should also aid in the 
representation of chemical pathways in the models, since it 
investigated key parameters controlling the formation and destruction 
of ozone in the HGB.
    Overall, it is EPA's judgment that the longer submittal date will 
give TCEQ the necessary time to develop the modeling and control 
strategies using the 2005 and 2006 episodes with the TexAQS II field 
study data resulting in a more representative and accurate attainment 
demonstration. It will take time to incorporate the field study data 
collected in 2005 and 2006 into the meteorological and photochemical 
modeling for the area. This includes processing of radar data 
(available in mid-2008), compilation and review of 2006 emission 
inventory data (mid-2008), inclusion of additional meteorological data 
(2007-2008), inclusion of Continuous Emission Monitoring (CEM) data 
from the HRVOC sources that have CEMs (mid-2008), analysis and 
inclusion of data from ground, ship, and aircraft data collected (2007-
2009).
    With regard to the commenter's contention that the SIP was revised 
in May 2007, it is important to note that the 2007 SIP revision did not 
demonstrate attainment and that extensive additional work would be 
required to do so and to adopt new requirements as appropriate.
    Even with an April 15, 2010, submission date, we expect the area to 
continue to reduce VOC and NOX emissions through Federal, 
State and local controls. Provisions for reasonable further progress 
(RFP) reductions in these ozone precursor emissions is a requirement 
for a severe area SIP (40 CFR 51.910). For the HGB area where 15% VOC 
reductions have already been achieved, required severe area reductions 
are an average of 3 percent per year of VOC and/or NOX for: 
(1) The 6-year period following the baseline emissions inventory year 
(2002); and (2) all remaining 3-year periods after the first 6-year 
period out to the area's attainment date (40 CFR 51.910(a)(1)(B)). 
These reductions will lead to lower ozone levels. As noted above, TCEQ 
has already conducted stakeholder meetings on additional control 
measures. TCEQ is also implementing the Texas Emission Reduction 
Program (TERP) and the AirCheckTexas program to reduce emissions. TERP 
provides funding for reducing NOX emissions from diesel 
engines. AirCheckTexas provides funding for replacing older, higher 
polluting automobiles with newer less polluting ones.
    With respect to the comments supporting submission dates earlier 
than April 2010, see the responses to comments below. With respect to 
the comment concerning the 7-month submission deadline for the San 
Joaquin Valley voluntary reclassification, EPA notes that contrary to 
commenter's contention, EPA's actions in setting the submittal date and 
the timeframes in the voluntary reclassification of San Joaquin are 
consistent with the deadline set here. Although in its April, 2004 
notice EPA set a submittal date of November 15, 2004 (and some months 
later for Title V and NSR requirements), EPA noted that additional time 
was not warranted ``because the District has been working on the 
extreme area plan since 2002, and has indicated that they can meet the 
November 15, 2004 deadline.'' 69 FR 20550, 20551. (April 16, 2004). 
Thus the time period for work on the plan in San Joaquin is comparable 
to that being afforded the State here, and, as in San Joaquin, is 
consistent with what the State has requested. Moreover, as set forth in 
detail elsewhere in this notice, under the circumstances presented 
here, the complex challenges confronting the HGB area justify the 
length of time provided for submittal of the plan.
    Comment: Comments were received supporting dates earlier than April 
15, 2010, as the submission date for a SIP revision. One comment stated 
that the submission date for a revised SIP should be as expeditiously 
as practicable but no later than December 15, 2008, which would be 18 
months from the reclassification request. Other comments supported a 
June 2009 date by which the SIP revision should be submitted. 
Commenters stated that a June 15, 2009, date allows Texas much more 
time than normal, but less than requested. One commenter stated that a 
June 2009 date would ensure that sufficient work can be completed on 
the plan while respecting the need for urgent action.
    Response: As stated above, we believe that TCEQ and the other 
commenters who supported the April 15, 2010, date have presented 
compelling arguments and information, and that this date is as soon as 
practicable. If December, 2008 were set as the deadline, TCEQ would 
have to rely on a 2000 modeling episode instead of newer, more 
comprehensive and representative modeling episodes. Due to the 
limitations of the 2000 episode (since the 2000 episode large 
reductions in NOX and HRVOCs with the Cap and Trade program 
have occurred which add uncertainity to future year modeling 
projections and the 2000 episode had some periods of unrepresentative 
meteorological conditions), reliance on it would likely result in less 
accurate and representative projections of future

[[Page 56990]]

design values (especially when weighed against using the more recent 
field study data collected in 2005 and 2006 and the modeling of more 
recent episodes). See the Comments of the TCEQ, pages 1-2. Thus, TCEQ 
is modeling a number of episodes from 2005 and 2006, in order to 
develop an adequate basis for developing an attainment strategy. This 
allows for the episodes to include the effects of earlier reductions of 
NOX and HRVOCs in the base inventories and also base the 
episodes on periods with more intensive data collection to further 
lessen the uncertainties in modeling projections. The episodes from 
2005 and 2006 are more representative of the typical conditions that 
lead to high ozone levels. Due to complicated source-receptor 
relationships and meteorology in the HGB, this modeling requires an 
intensive effort, involving six-twelve months more time than when 
modeling more typical urban areas. These complex relationships are in 
large part due to the complicated meteorological characteristics of the 
HGB area, including land/bay/sea breeze and their interaction with 
other meteorological features that impact the dispersion and mixing of 
ozone precursors; and also the complex mixture of industrial emissions 
of VOCs (including HRVOCs) and NOX that make modeling the 
HGB area much different than most other areas of the country. The 
additional field study data and detailed emission inventory data 
collected during the 2005 and 2006 period will improve the accuracy of 
the base case modeling (meteorology, emissions, and chemistry) and help 
to yield more representative SIP modeling demonstration.
    A large amount of federal, state, and scientific community 
resources have been enlisted to refine and analyze the data collected 
for use in the new 2005 and 2006 modeling. Analyses from the TexAQS II 
study only recently have become available in 2007 and 2008, and are 
critical to guiding the TCEQ modeling development and validating the 
results. Texas should be allowed time to incorporate these results, 
otherwise the modeling would then likely need to be redone to 
incorporate these findings. We expect the TexAQS II data will 
contribute to better understanding of the adequacy of emissions 
inventories in several key areas, including shipping, onroad mobile 
sources, industrial VOCs and formaldehyde. It should also aid in the 
representation of chemical pathways in the models, since key parameters 
controlling the formation and destruction of ozone in the HGB area were 
investigated. TexAQS II data includes meteorological observations from 
numerous surface sites, two towers, hundreds of balloons, five 
aircraft, a research vessel and an offshore platform. These data will 
help to characterize important meteorological phenomena affecting ozone 
in the HGB area, including land/sea/bay breeze, nocturnal jets, 
stagnation, frontal passages, dispersion and mixing of ozone 
precursors, and transport. In addition, Texas is engaged in a number of 
activities to improve the model's ability to replicate the complex 
interactions leading to high ozone, including model enhancements to 
incorporate temperature variations, better land use and land cover 
data, improved information on biogenic emissions, better data for 
emissions and monitored concentrations, and advanced modeling 
techniques. See TCEQ Comments, page 3. TCEQ is modeling more than 50 
episode days while making improvements in the modeling process and 
incorporating TexAQS II results. TCEQ estimates it will take until 
March 2009 to complete the modeling work and associated quality 
assurance and peer review to support a proposed modeling and attainment 
demonstration.
    A December 2008 date would mean the TCEQ would have to rely on the 
less reliable 2000 modeling episode, and suspend work on the new 
modeling episodes. At best a June 2009 date may have included initial 
work with the 2005 and 2006 episodes in addition to the 2000 episode, 
but would not have incorporated much of the data that was collected 
during TexAQS II, and thus would have more uncertainties and would be 
less representative. A deadline for submission of the attainment 
demonstration that is earlier than April 2010 would inhibit the 
development of effective attainment strategies based upon new modeling 
of ozone episodes that occurred in 2005 and 2006, the more recent 2006 
emissions inventory, and incorporation of findings from TCEQ's most 
recent field study of ozone formation, TexAQS II. Relying on the 2000 
episode would likely result in the need to subsequently revise the SIP, 
and would delay the development of effective control strategies.
    In addition to modeling, TCEQ must also analyze emissions data to 
develop ozone control strategies. To do so, TCEQ must incorporate the 
findings from TexAQS II into its SIP planning, and must also rely on 
the 2006 NOX and VOC emissions inventory, which was not 
complete until the middle of 2008, and would therefore not allow for 
some early aspects of control strategy development until late 2008. It 
is important to use the 2006 inventory since it will provide the most 
accurate VOC emissions data, as a result of monitoring and testing 
requirements established in the HRVOC rules for flares, vents and 
cooling towers. The 2006 point source inventory represents years of 
efforts to improve emissions data, including more accurate speciation 
and reporting of VOC emissions. For details of these improvements, see 
TCEQ Comments at 5.
    Due to the extensive controls already required for major sources in 
the HGB area, TCEQ may need to consider more stringent strategies that 
will require time for conducting more inventory and survey work on area 
sources, as well as for researching control technologies on sources 
that have not historically been regulated for ozone, or that are 
smaller than what has previously been regulated. More evaluation and 
stakeholder outreach may also be needed for control strategies that 
impact small businesses and sources not historically regulated for 
ozone. Issues being studied that could have an affect on control 
strategies include the role of ozone levels aloft in model performance 
and control strategy assessment, differences between measured on-road 
mobile source CO-to-NOX ratios and those predicted by the 
national mobile source emissions model, MOBILE6, and indications that a 
great degree of variability exists in VOC emissions, with some sources 
emitting large quantities within a short period of time and also the 
general underestimation for many industrial sources of VOCs (recent 
field study information indicates VOCs may still be under-reported by a 
factor of 2 or more). As one commenter has pointed out, in the past 
when results and insights from field studies were not included in the 
development of attainment plans, the plans subsequently had to be 
revised. Moreover, if an earlier deadline is imposed, it would result 
in the loss of the full complement of modeled episode days, and 
diminish confidence that the control strategies would work under a 
range of meteorological conditions. Since different control strategies 
were being introduced in 2005 and 2006, eliminating the 2006 episodes 
would result in the loss of information about the effectiveness of 
these controls. A deadline prior to April, 2010 also would not allow 
sufficient time for rule development after identification of control 
strategies. The rulemaking process under the Texas Administrative 
Procedure Act, combined with TCEQ rulemaking practice, typically takes

[[Page 56991]]

about one year. Texas has also commented that sensitivity analyses to 
assess the benefits of selected controls also are not currently 
available.
    In developing control measures, an extensive public participation 
process is needed, since emissions reductions will be required from all 
source categories. A shorter timeline would not allow sufficient input 
by community stakeholders and outside scientists, on such issues as 
data, modeling, and other analyses, as well as emissions factors. This 
input is important for the development of effective control strategies 
and their implementation. Thus, EPA finds that the April 2010 deadline 
is necessary to provide sufficient time to allow adequate modeling 
episodes and control strategies based on best available data.
    Comment: A comment was received that if EPA is convinced that it 
will legitimately take until 2010 to complete the technical work to 
support the required demonstration of attainment, EPA should require 
TCEQ to work with local stakeholders to adopt available control 
measures on an expedited schedule.
    Response: As noted above: (1) TCEQ has already initiated 
stakeholder meetings on additional control measures, and is 
implementing the Texas Emission Reduction Program and the AirCheckTexas 
program to reduce emissions; and (2) control measures will be adopted 
as expeditiously as practicable, and will be submitted with the 
attainment demonstration in 2010. Given the time necessary for updating 
the emissions inventory, episode modeling, and control strategy 
development adoption of significant numbers of new control measures 
cannot be expected earlier than April 2010.
    Comment: We invited comments on a range of dates from December 15, 
2008 to April 15, 2010 for a revised SIP submittal. Comments were 
received supporting April 15, 2010 as the submission date for a SIP 
revision. One commenter (TCEQ) recommended this date due to: (1) The 
extraordinarily complex nature of ozone formation in the HGB area; (2) 
the need to successfully model a large number of ozone days; (3) the 
new scientific information beginning to emerge from the Texas Air 
Quality Study II; (4) complicated issues associated with developing and 
implementing emission reduction measures; and (5) the need for 
extensive stakeholder involvement. TCEQ further stated that: (1) 
Requiring the state to submit an attainment demonstration any time 
before April 2010 does not change the attainment date nor does it 
advance the protection of public health; (2) an earlier submission date 
is counterproductive to protecting public health; (3) a December 2008 
deadline would mean that all initial technical work on the HGB SIP 
would be discontinued; and (4) the SIP revision would contain little 
more than previous modeling and a control strategy package that relies 
on fleet turnover from federal rules. Texas also provided detailed 
justification for the April 15, 2010 submission date addressing: (1) 
Modeling, (2) control strategy development, (3) the stakeholder 
process, and (4) the reasonable further progress SIP.
    Another commenter stated that: (1) The timeline requested by Texas 
is necessary in order to integrate recent field study data, new 
episodes, and state-of-the-art modeling; (2) imposing artificial 
deadlines would mean that key components would be omitted, which would 
all but guarantee a flawed plan; and (3) the result (of a flawed plan) 
would be a costly and wasteful regulatory re-work, which could delay, 
rather than accelerate attainment.
    Response: We agree with these commenters that April 15, 2010 is 
appropriate as the submission date for a SIP revision due to: (1) The 
complexity in developing and implementing effective emission reductions 
for the area; and (2) the opportunity for a more robust attainment 
demonstration plan that relies on better data and modeling. Developing 
and implementing effective emission reductions for the area is complex 
due to its: (1) Complex coastal meteorology; (2) large urban 
population; and (3) large industrial area (4) the current 
underestimation issues of industrial emissions. With a SIP submission 
date of April 15, 2010, more recent data and modeling episodes may be 
used to identify control strategies and demonstrate attainment of the 
standard. In our December 31, 2007, proposal, we stated that the new 
attainment demonstration should be based on the best information 
available (72 FR 74252, 74254). A SIP revision submission date of April 
15, 2010, allows for the best information to be used. See also section 
II above, and responses to comments above.

C. Relief of CAA Attainment Demonstration and Related Requirements

    Comment: Several commenters stated that reclassification should not 
be a means to avoid meeting fundamental CAA requirements, and that 
Texas is therefore still required to complete and submit, as components 
of its May 2007 SIP, an adequate RACM analysis, an adequate attainment 
demonstration, supporting photochemical modeling, and contingency 
measures. Comments stated that ``Congress intended the reclassification 
process to be used as a last resort, [to be undertaken] after all 
[RACM] have been implemented and all best efforts undertaken to reduce 
emissions.''
    Response: As we stated in the proposal, Texas has a continuing 
responsibility for certain elements of the moderate area requirements. 
EPA has stated that reclassification does 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 section 172(c)(9)); (2) a reasonably available control technology 
(RACT) 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)). Also, as stated above, reclassification is not 
without consequences for the area. Reclassification to a severe 
designation will result in the HGB ozone nonattainment area being 
subjected to severe 8-hour ozone nonattainment area requirements, 
including New Source Review (NSR) and Title V permit requirements, in 
addition to applicable 1-hour requirements. For example, Texas will 
have to meet the more stringent reasonable further progress (RFP) 
reductions in VOC and NOX emissions required by a severe 
classification (40 CFR 51.910). For other serious and severe area 
requirements, see section 182(c) and (d).
    EPA disagrees with the commenters to the extent they believe that a 
full attainment demonstration plan including modeling, attainment 
contingency measures and RACM needs to be submitted and approved by the 
moderate area deadline. Once an area is reclassified it retains the SIP 
due date for certain SIP elements that applied for the area's initial 
classification. However it can receive a new date for the attainment 
demonstration and related elements, in addition to the SIP elements 
required under its new (higher) classification. It is EPA's belief that 
the CAA provides that, upon

[[Page 56992]]

reclassification, relief can be granted from the submittal deadline for 
the requirements of the lower classification related to the attainment 
demonstration. As a reclassified area the area is no longer obligated 
to demonstrate attainment by the date previously required for the prior 
classification. The area must then provide an attainment demonstration 
for the new classification, but must still demonstrate attainment as 
expeditiously as practicable. Such deadlines are determined on a case-
by-case basis for each area and proposed and finalized through 
rulemaking. As discussed previously, we believe it is appropriate in 
this case to allow time to develop an attainment demonstration based on 
more complete information available through additional episode days and 
the TexAQS II study. This approach is balanced by the fact that the CAA 
provides for additional more stringent requirements to be placed upon a 
nonattainment area when it is given a higher classification. In 
addition, we expect that the additional time will provide for a more 
robust attainment demonstration. In the meantime, the State has made 
submittals to meet and/or is implementing the moderate area 
requirements not related to an attainment demonstration. 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 attainment deadline, the 
deadline applicable to the attainment demonstration under the previous 
classification no longer has any logical, practical or legal 
significance. The State has already demonstrated its inability to meet 
the moderate area deadline for attainment, and is preparing its new 
demonstration under the severe classification. Therefore, EPA is not 
evaluating the sufficiency of the attainment demonstration or RACM 
submissions made pursuant to the area's moderate classification, or 
imposing sanctions for insufficiency. EPA's conclusion not to require a 
moderate area attainment demonstration is logical, since the State is 
unable to demonstrate attainment by the moderate area attainment date, 
and the area is being reclassified. It is also consistent with its 
action in the voluntary reclassification of San Joaquin Valley, 69 FR 
20550 (April 16, 2004).
    As noted in EPA's proposal, Texas submitted contingency measures to 
be triggered if the area fails to meet reasonable further (RFP) 
progress under the moderate area requirements. 72 FR 74253. A commenter 
contends that the State's failure to include an attainment 
demonstration under its moderate area classification makes an attempt 
to include contingency measures impossible, arguing that such 
contingency measures can only be determined if they are surplus to the 
measures needed for attainment. For contingency measures to meet RFP, 
however, EPA will be able to evaluate and, if appropriate, approve 
these measures in advance of an attainment demonstration. If, when the 
attainment demonstration is submitted, it is determined that additional 
contingency measures are required to meet severe area RFP or 
attainment, EPA will require such measures. A commenter cited to the 
February 12, 2007 Thomas Diggs (Chief, Air Planning Section, EPA Region 
6) letter to Joyce Spencer (TCEQ), which stated: ``EPA cannot approve 
any contingency measures unless and until the state makes an adequate 
demonstration that they are surplus to the measures needed for 
attainment.'' In response, EPA is clarifying Mr. Diggs statement to 
make explicit that it is limited it to the context of contingency 
measures for failure to attain. Contingency measures for failure to 
meet RFP are only those surplus to the RFP demonstration, and, as noted 
above, unlike contingency measures for attainment, EPA can evaluate 
such contingency measures in advance of the attainment demonstration.
    One commenter contended that in the General Preamble EPA stated 
that when an area is reclassified it must submit and implement RACM 
consistent with the moderate area schedule. 57 FR 13537.

    ''[I]f an area that fails to submit a timely moderate area SIP 
is reclassified, this does not obviate the requirement that the area 
submit and implement RACM consistent with the moderate area 
schedule. Accordingly, the area could be subject to sanctions for 
its delay in submitting the RACM SIP requirement.''

    EPA notes that the passage quoted above by the commenter is 
contained in the section of the General Preamble addressing the PM-10 
standard, and does not relate to the ozone standard. In addition, this 
statement is at odds with statements elsewhere in the General Preamble 
about RACM being a component of an area's attainment demonstration 
under section 172(c)(1) (57 FR 13560), and is superseded by a much more 
extensive discussion of PM-10 RACM and Best Available Control Measures 
(BACM) in the Addendum to General Preamble for State Implementation 
Plans for Serious PM-10 Nonattainment Areas. 59 FR 41998, 42008-42011, 
(August 16, 1994). The Addendum makes clear that RACM, as distinguished 
from BACM, is to be analyzed ``according to what is reasonable in light 
of the overall attainment needs of the area.'' 59 FR 42011. The 
Addendum notes that the ``pronounced difference in timing for the 
serious area submittals * * * is to be contrasted with the timing for 
submittal of similar provisions for moderate areas. Under section 
189(a)(2), both the RACM plans and the attainment demonstration for 
moderate PM-10 areas must as a general matter be submitted at the same 
time.'' The Addendum explains that the fact that BACM, unlike RACM, 
requires adoption and implementation before the attainment 
demonstration, shows that Congress intended BACM to be based on the 
feasibility of implementation rather than, as for RACM, the attainment 
needs of the area. 59 FR 42012. Thus it is clear that, for RACM for 
ozone, for the same reason that the deadline for an attainment 
demonstration should be extended when an area is reclassified, the 
deadline for RACM should also be extended. This is buttressed by EPA's 
interpretation, upheld by the United States Court of Appeals for the 
Fifth Circuit (Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 
2002) and by the U.S. Court of Appeals for the D.C. Circuit (Sierra 
Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002), that the statute 
requires only implementation of RACM measures that would advance 
attainment. Thus RACM can only be determined in conjunction with an 
attainment demonstration. A commenter's contention that ``areas that 
are not attaining the NAAQS must implement all technologically and 
economically feasible control measures'' is at odds with the statute as 
interpreted by EPA and the courts. Moreover, the commenter's reliance 
for support on Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990), is 
misplaced. Delaney was decided before the 1990 Amendments to the Clean 
Air Act were enacted and the General Preamble was issued, and it does 
not reflect the current statute and guidance. (See Ober v. EPA, 84 F. 
3d 304 (9th Cir. 1996), noting that Delaney was decided before the 1990 
Amendments and before EPA changed its guidance with respect to 
transportation control measures and RACM.) Delaney focused on a 
specific set of circumstances, applying requirements for attainment 
under a previous version of the statute and guidance, and it did not 
require attainment as expeditiously as

[[Page 56993]]

practicable with reasonably available control measures but rather 
attainment as soon as possible with all possible measures. It is not 
pertinent to evaluating the RACM requirement under the current version 
of the Act in the circumstances presented by HGB.
    EPA believes it would be unreasonable to require the implementation 
of RACM before a determination can be made of what is ``reasonably'' 
available based on whether implementation will expedite attainment. 
EPA's statements in the General Preamble are consistent with this 
approach. In the General Preamble EPA repeatedly stated, that it would 
be unreasonable to require a plan to include the implementation of all 
technologically and economically available control measures even though 
such measures would not expedite attainment. General Preamble, 57 FR 
13498, 13543, 13560 (April 16, 1992). Texas is in the process of 
developing an attainment demonstration that will ascertain which 
measures will expedite attainment. It would be unreasonable, in the 
meantime, to require implementation of all measures before a 
determination of their usefulness and necessity can be determined. 
Texas is not being excused from adopting RACM; Texas will make its RACM 
submission at the time it submits its attainment demonstration under 
the severe area classification. EPA will review the State's submission 
at that time
    A commenter cites Ober v. EPA, 84 F.3d 304 (9th Cir. 1996), for the 
proposition that a moderate area that is reclassified as serious must 
comply with moderate area SIP requirements, and that reclassification 
does not delay or supersede existing SIP requirements. But Ober's 
discussion of the obligation to meet SIP requirements was not based on 
section 181(b)(3), but rather was in the context of the provisions 
governing the PM-10 standard, and was explicitly based on the 
consideration that there were separate requirements for the 24-hour and 
annual PM-10 standards. The Court concluded that given these two 
standards, the inability of the area to attain the annual PM-10 
standard by the moderate area deadline, and resulting reclassification 
to serious, did not relieve the State of the obligation to meet the 
moderate area requirements of the separate 24-hour standard. The 
passage cited by the commenter, from footnote 2 of the opinion, makes 
clear that the moderate area PM-10 requirements referred to relate to 
the 24-hour standard. In the case of HGB, which involves the ozone 
standard, there is no such separate standard. In addition, the passage 
the commenter quotes from Ober cites section 7513a(b)(1), which merely 
states that a serious PM-10 nonattainment area must comply with 
moderate as well as serious area requirements. It does not address the 
issue of whether an area that has been voluntarily reclassified under 
the ozone standard must submit an attainment demonstration by a 
deadline that has been rendered obsolete by reclassification.
    Comment: Comments were received that EPA has correctly deferred 
submittal requirements, as CAA attainment demonstration requirements of 
the new classification supersede requirements of the previous 
classification.
    Response: We agree with the commenters that certain attainment-
demonstration related requirements of the lower classification are 
superseded. See Responses above.
    Comment: Comments were received that a reclassification to severe 
will release Texas from sanctions for failing to submit a proper SIP or 
meet the attainment deadlines of the former moderate classification. 
Comments stated that Texas should not be able to avoid any penalties 
for noncompliance by virtue of ``an improper reclassification''. A 
commenter stated that Congress intended the reclassification process to 
be used as ``a last resort''.
    Response: Congress placed no limitations on a State's ability to 
request reclassification to a higher classification, and provided for 
no discretion for EPA to deny such a request. EPA believes that a 
voluntary reclassification is a legitimate method provided by the CAA 
to deal with the circumstances of HGB, as discussed earlier in these 
Responses. Since Texas submitted its request for reclassification in a 
timely fashion, EPA sees no reason to make any finding regarding 
whether or not Texas' moderate attainment plan demonstrated attainment 
or to apply sanctions at this time. Upon reclassification, the moderate 
area attainment demonstration-related requirements are superseded by 
the severe area attainment demonstration requirements. See Responses to 
Comments above. Texas has not been released from the obligation to 
comply with SIP submission deadlines for other moderate area 
requirements not related to the attainment demonstration.
    Comment: A commenter stated that EPA contends that more stringent 
requirements accompanying the higher classification removes the 
incentive for states to request an improper reclassification with a 
later attainment date. The commenter states, however, that EPA 
acknowledges that because HGB was classified as severe under the 1-hour 
standard, many of the more stringent requirements are already being 
implemented. The commenter asserts that with the increased compliance 
burden removed, reclassification appears to be an effort by Texas to 
postpone attainment and sanctions.
    Response: EPA does not agree that reclassification relieves Texas's 
compliance burden. Texas still confronts additional and more stringent 
requirements under a severe classification for the 8-hour standard, and 
must still attain the standard as expeditiously as practicable, and 
meet the requirements under its severe classification for RACM and RFP. 
These are important consequences of reclassification, and Texas's 
obligation to comply with these requirements under the 8-hour ozone 
standard is a significant one.

IV. Final Action

    After fully considering all comments received on the proposed rule 
and pursuant to CAA section 181(b)(3): (1) The HGB area is reclassified 
as a severe nonattainment area for the 1997 8-hour ozone standard; and 
(2) we find that April 15, 2010, is the appropriate SIP submittal date 
for a revised SIP meeting the requirements for the severe area 
classification and demonstrating that the HGB area will attain the 1997 
8-hour standard as expeditiously as practicable, but no later than June 
15, 2019.
    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 section 182(c)(1)); (2) an enhanced vehicle 
inspection and maintenance program (CAA section 182(c)(3)); (3) a clean 
fuel vehicle program or an approved substitute (CAA section 182(c)(4)), 
and (4) gasoline vapor recovery for motor vehicle refueling emissions 
(CAA section 182(b)(3)). The revised SIP must also meet the severe area 
requirements, including: (1) An attainment demonstration (40 CFR 
51.908); (2) provisions for reasonably available control technology 
(RACT) and reasonably available control measures (RACM) (40 CFR 
51.912); (3) reasonable further progress reductions in volatile organic 
compound (VOC) and nitrogen oxide (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 sections 
172(c)(9) and 182(c)(9)); (5) transportation control measures to offset 
emissions from growth in vehicle miles traveled (CAA section 
182(d)(1)(A)); (6) reformulated gasoline

[[Page 56994]]

(CAA 211(k)(10)(D)); and (7) NSR permits (40 CFR part 165). 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.
    The revised SIP for the HGB area must also contain adopted measures 
sufficient to achieve 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.

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 Executive Order 12866. Voluntary reclassifications under 
section 181(b)(3) of the CAA are based solely on 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 reclassification, 
reclassification does not impose a materially adverse impact under 
Executive Order 12866. 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 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 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 does not alter the relationship or the 
distribution of power and responsibilities established in the CAA.
    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because EPA interprets E.O. 13045 as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it grants a voluntary reclassification, and EPA's 
approval is mandatory.
    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 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 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.).
    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 
is taking 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 1, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action to reclassify the HGB area as a severe 
ozone nonattainment area and to adjust applicable deadlines may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

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.

    Dated: September 18, 2008.
Richard E. Greene,
Regional Administrator, Region 6.

0
Part 81, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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


0
2. In Sec.  81.344 the table entitled ``Texas--Ozone (8-hour 
Standard)'' is amended by revising the entries for Houston-Galveston-
Brazoria, TX to read as follows:

[[Page 56995]]

Sec.  81.344  Texas.

* * * * *

                                         Texas--Ozone (8-Hour Standard)
 
----------------------------------------------------------------------------------------------------------------
                                         Designation a                            Classification
       Designated area        ----------------------------------------------------------------------------------
                                   Date 1            Type            Date 1                    Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Houston-Galveston-Brazoria,
 TX:
    Brazoria County..........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Chambers County..........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Fort Bend County.........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Galveston County.........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Harris County............  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Liberty County...........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Montgomery County........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Waller County............  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * *
\4\ October 31, 2008.

* * * * *

 [FR Doc. E8-22685 Filed 9-30-08; 8:45 am]
BILLING CODE 6560-50-P