[Federal Register Volume 75, Number 94 (Monday, May 17, 2010)]
[Proposed Rules]
[Pages 27514-27535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11694]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R06-OAR-2008-0932; FRL-9151-7]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Texas; Beaumont/Port Arthur 
Ozone Nonattainment Area: Redesignation to Attainment for the 1997 8-
Hour Ozone Standard and Determination of Attainment for the 1-Hour 
Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a request from the State of Texas 
to redesignate the Beaumont-Port Arthur (BPA) Texas ozone nonattainment 
area to attainment of the 1997 8-hour ozone standard. In proposing to 
approve this request, EPA also proposes to approve as a revision to the 
BPA State Implementation Plan (SIP), a 1997 8-hour ozone maintenance 
plan with a 2021 Motor Vehicle Emissions Budget (MVEB). EPA is 
proposing to determine that the BPA nonattainment area has attained the 
1997 8-hour ozone National Ambient Air Quality Standard (NAAQS), based 
on complete, quality-assured, and certified ambient air quality 
monitoring data for the 2005-2007 and 2006-2008 monitoring periods, as 
well as data from 2009 that are in EPA's Air Quality System (AQS) 
database but not yet certified, that demonstrate that the area has 
attained and is continuing to attain the 1997 8-hour ozone NAAQS. EPA 
also is proposing to make a determination that the BPA area is meeting 
the 1-hour ozone standard based upon three years of complete, quality-
assured, and certified ambient air quality monitoring data for the 
2005-2007 and 2006-2008 monitoring periods, as well as data from 2009 
in AQS but not yet certified.
    EPA is proposing to approve the BPA area's 2002 base year emissions 
inventory as part of the BPA SIP and to conclude that if this action is 
finalized, the area is meeting all of its applicable marginal area 
requirements for purposes of redesignation for the 1997 8-hour ozone 
NAAQS. EPA also is proposing to approve as part of the BPA SIP, the 
Texas Clean-Fuel Vehicle (CFV) Program Equivalency Demonstration. EPA 
is proposing to find that if these proposed approvals are finalized, 
the area will have a fully approved SIP that meets all of its 
applicable 1997 8-hour requirements and 1-hour anti-backsliding 
requirements under section 110 and Part D of the federal Clean Air Act 
(CAA or Act) for purposes of redesignation.
    Additionally, EPA is proposing to approve the post-1996 Rate of 
Progress (ROP) plan's contingency measures, the substitute control 
measures for the failure-to-attain contingency measures, and the 
removal from the Texas SIP of the 1-hour ozone failure-to-attain 
contingency measure, a VOC SIP rule for marine vessel loading, as 
meeting the requirements of section 110(l) and part D of the Act.

DATES: Comments must be received on or before June 16, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2008-0932, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at [email protected]. Please 
also send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2008-0932. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or e-
mail, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in

[[Page 27515]]

the FOR FURTHER INFORMATION CONTACT paragraph below to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a fee of 15 cents 
per page 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.
    The State submittal, which is part of the EPA record, is also 
available for public inspection at the State Air Agency listed below 
during official business hours by appointment: Texas Commission on 
Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, 
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Belk, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-2164; fax 
number 214-665-7263; e-mail address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means EPA.

Table of Contents

I. What are the actions EPA is proposing?
II. What is the background for these actions?
    A. What are the National Ambient Air Quality Standards?
    B. What is ozone and why do we regulate it?
    C. What is the background for the BPA area under the 1-hour 
ozone NAAQS?
    D. What is the background for the BPA area under the 1997 8-hour 
ozone NAAQS?
III. What are the impacts of the court decisions on EPA's Phase 1 
and 2 implementation rules upon the BPA area redesignation request?
    A. Summary of the Court Decisions
    B. Summary of EPA's Analysis of the Impact of the Court 
Decisions on the BPA Area
    1. Requirements Under the Eight-Hour Ozone Standard
    2. Requirements Under the One-Hour Ozone Standard
IV. What are the CAA criteria for redesignation?
V. What is EPA's proposed determination regarding attainment for the 
1997 8-hour and the 1-hour ozone NAAQS for the BPA area?
    A. Is the BPA area attaining the 1997 8-hour ozone NAAQS?
    B. Is the BPA area attaining the 1-hour ozone NAAQS?
VI. Does the BPA area have a fully approved SIP under section 110(k) 
for the section 110 and part D requirements of the CAA applicable 
for purposes of redesignation?
    A. What are the general SIP requirements applicable for purposes 
of redesignation for the BPA area?
    B. What are the part D requirements applicable for purposes of 
redesignation for the BPA area?
    1. What are the part D requirements applicable for purposes of 
redesignation for the BPA area under the 1-hour ozone standard?
    2. What are the part D requirements applicable for purposes of 
redesignation for the BPA area under the 1997 8-hour ozone standard?
    C. Does the BPA area have a fully approved applicable SIP under 
section 110(k) of the CAA for purposes of redesignation?
VII. Are the air quality improvements in the BPA area due to 
permanent and enforceable emissions reductions?
    A. Emissions Reductions as Shown by Emission Inventory Data
    B. Impact of Emissions Controls Implementation: Trend Analysis
    C. Permanent and Enforceable Emissions Controls Implemented
    1. Reasonably Available Control Techniques
    2. ROP Plans and Attainment Demonstration Plan
    3. NOX Control Rules
    4. Federal Emission Control Measures
    5. Additional State and Local Emission Reductions
    6. Controls to Remain in Effect
VIII. Does Texas have a fully approvable 1997 8-hour ozone 
maintenance plan pursuant to section 175A of the CAA for the BPA 
area?
    A. What is required in an ozone maintenance plan?
    B. How did Texas estimate the VOC and NOX emissions 
for the attainment year and the projection years?
    C. Has the State demonstrated maintenance of the ozone standard 
in the BPA area?
    D. Monitoring Network
    E. Verification of Continued Attainment
    F. What is the maintenance plan's contingency plan?
IX. What is EPA's evaluation of the BPA area's motor vehicle 
emissions budget?
    A. What are the transportation requirements for approvable 
MVEBs?
    B. What is the status of EPA's adequacy determination?
    C. Is the MVEB approvable?
X. EPA's Evaluation of the Backfill Contingency Measures for the 1-
Hour Ozone Failure-To-Attain Contingency Measures and the State's 
Request To Remove an Unimplemented VOC Rule From the Texas SIP
XI. Proposed Actions
XII. Statutory and Executive Order Reviews

I. What are the actions EPA is proposing?

    EPA is proposing several related actions pursuant to the Act for 
the BPA ozone nonattainment area, consisting of Hardin, Jefferson, and 
Orange counties. EPA is proposing to determine that the BPA area has 
attained the 1997 8-hour ozone NAAQS, based on the most recent three 
years of complete, quality-assured monitoring data. EPA is proposing to 
find that the BPA area has met the requirements for redesignation under 
section 107(d)(3)(E) of the Act, and is therefore proposing to approve 
a request from the State of Texas to redesignate the BPA area to 
attainment of the 1997 8-hour ozone standard. EPA is also proposing to 
approve, pursuant to section 175A of the Act, the area's 1997 8-hour 
ozone maintenance plan as a revision to the Texas SIP; to approve the 
plan's associated 2021 MVEB; and to approve the 2002 base year 
emissions inventory. With the approval of the 2002 base year emissions 
inventory, EPA is proposing to find that the BPA area has satisfied all 
marginal area requirements for the 1997 8-hour ozone NAAQS. See Section 
VI.B.2. and the Technical Support Document (TSD), Part I.A., for 
further information on how the BPA area satisfies all the other 
marginal area requirements. In addition, EPA is proposing to approve 
the Texas Clean-Fuel Vehicle (CFV) Program Equivalency Demonstration as 
meeting a serious area anti-backsliding requirement for the 1-hour 
ozone standard. With the approval of the Texas CFV equivalency 
determination, we are proposing to find that the BPA has satisfied all 
1-hour anti-backsliding requirements for a serious area for the 
purposes of redesignation. For further information on how the area 
meets the serious area requirements apart from the CFV Program, please 
see Section VI.B.1. and the TSD, Part II.A. Further, EPA is proposing 
to make a determination that the BPA area is meeting the 1-hour ozone 
standard.
    Finally, EPA is proposing to approve the 1-hour ozone post-1996 
rate of progress (ROP) plan's contingency measures, substitute measures 
for the SIP-approved failure-to-attain contingency measures, and the 
removal from the Texas SIP of the contingency measure, a VOC SIP rule 
for marine vessel loading, as meeting the requirements of section 
110(l) and part D. Each component of this action is discussed in 
greater detail below.
    First, EPA is proposing to make a determination under the Act that 
the BPA area has attained the 1997 8-hour ozone NAAQS. The BPA area 
includes three counties in Texas: Hardin, Orange, and Jefferson. This 
proposed determination is based on complete, quality-assured and 
certified ambient air quality monitoring data for the 2005-2007 and 
2006-2008 ozone seasons that demonstrate that the 1997 8-hour ozone 
NAAQS has been attained in the area. Data entered into EPA's Air 
Quality System database (AQS) for 2009, but not yet certified also show 
that the area continues to attain the standard.
    As one of the requirements for approving a redesignation request, 
EPA is proposing to approve as a revision to the Texas SIP, the State's 
maintenance

[[Page 27516]]

plan for the BPA area as meeting the requirements of section 175A. EPA 
also is proposing to approve the 2002 base year emissions inventory for 
the BPA area as meeting a requirement of the Act for a marginal 1997 8-
hour ozone area, section 182(a)(1). Additionally, we are proposing to 
approve the Texas CFV Program Equivalency Demonstration as meeting the 
serious area requirements of the Act for the 1-hour ozone standard. 
With the approval of the 2002 base year emissions inventory and the CFV 
Program Equivalency Demonstration, EPA is proposing to find that the 
area has met all the applicable 8-hour ozone and 1-hour anti-
backsliding requirements of section 110 and part D of the Act for 
purposes of redesignation, and that the BPA area has a fully approved 
SIP under section 110(k) for purposes of redesignation.
    Based upon the above, EPA is proposing to approve a request from 
the State of Texas submitted on December 16, 2008, through the Texas 
Commission on Environmental Quality (TCEQ), to redesignate the BPA area 
to attainment of the 1997 8-hour ozone standard. If EPA's determination 
that the area has attained the standard is made final and the BPA area 
is redesignated to attainment with an approved 8-hour ozone NAAQS 
maintenance plan, then under the provisions of EPA's ozone 
implementation rule, the obligations to submit and have an approved 1-
hour ozone NAAQS attainment demonstration and reasonably available 
control measures determination (RACM) and contingency measures no 
longer apply. As discussed later, BPA was not required to have an 8-
hour ozone attainment demonstration because Texas submitted a 
redesignation request before the area's moderate area SIP requirements, 
including an attainment demonstration, were due (for more information, 
please see section VI).
    EPA is proposing to determine that the BPA area is meeting the 1-
hour ozone standard. This determination is based on complete, quality-
assured and certified ambient air quality monitoring data for the 2005-
2007 and 2006-2008 monitoring periods which demonstrate that the 1-hour 
ozone NAAQS has been attained in the area; this determination is also 
consistent with data for 2009 that are in AQS but not yet certified. 
The obligations for the state to submit and for EPA to approve a 1-hour 
serious area attainment demonstration and RACM determination and 
contingency measures will be suspended if EPA's proposal to determine 
that the area has attained the 1-hour standard is finalized, and the 
area will be relieved of these obligations upon final redesignation for 
the 1997 8-hour ozone standard. See 40 CFR 51.905(a)(3)(ii).
    Even though the obligations to submit and have approved the 1-hour 
contingency measures are suspended upon a determination that the area 
is attaining the 1-hour standard, and terminated upon the BPA area's 
redesignation to attainment for the 8-hour ozone NAAQS, EPA is 
proposing to approve the post-1996 ROP plan's contingency measures and 
the backfill failure-to-attain contingency measures. EPA is proposing 
this action on the contingency measures because the State is requesting 
that an existing SIP-approved 1-hour ozone failure-to-attain 
contingency measures be removed from the SIP, and has not indicated 
that it wishes to withdraw the contingency measures SIP revision 
submittals. EPA is proposing to approve the removal from the Texas SIP 
of the failure-to-attain contingency measure, a VOC SIP rule for marine 
vessel loading, as meeting the requirements of section 110(l) and part 
D.

II. What is the background for these actions?

A. What are the National Ambient Air Quality Standards?

    Section 109 of the Act requires EPA to establish NAAQS (or 
standards) for pollutants that ``may reasonably be anticipated to 
endanger public health and welfare,'' and to develop a primary and 
secondary standard for each NAAQS. The primary standard is designed to 
protect human health with an adequate margin of safety, and the 
secondary standard is designed to protect public welfare and the 
environment. EPA has set NAAQS for six common air pollutants, referred 
to as criteria pollutants: carbon monoxide, lead, nitrogen dioxide, 
ozone, particulate matter, and sulfur dioxide. These standards present 
state and local governments with the minimum air quality levels they 
must meet to comply with the Act. Also, these standards provide 
information to residents of the United States about the air quality in 
their communities. A State's SIP addresses these requirements, as 
required by section 110 and other provisions of the Act. The SIP is a 
set of air pollution regulations, control strategies, other means or 
techniques, and technical analyses developed by the state, to ensure 
that the state meets the NAAQS.

B. What is ozone and why do we regulate it?

    Ozone, a gas composed of three oxygen atoms, at the ground level is 
generally not emitted directly by sources such as from a vehicle's 
exhaust or an industrial smokestack; rather, ground level ozone is 
produced by a chemical reaction between nitrogen oxides 
(NOX) and VOCs in the presence of sunlight and high ambient 
temperatures. NOX and VOCs are referred to as precursors of 
ozone. Motor vehicle exhaust and industrial emissions, gasoline vapors, 
and chemical solvents all contain NOX and VOCs. Urban areas 
tend to have high concentrations of ground-level ozone, but areas 
without significant industrial activity and with relatively low 
vehicular traffic are also subject to increased ozone levels because 
wind carries ozone and its precursors many miles from the sources. The 
Act establishes a process for air quality management through the NAAQS.
    Repeated exposure to ozone pollution may cause lung damage. Even at 
very low concentrations, ground-level ozone triggers a variety of 
health problems including aggravated asthma, reduced lung capacity, and 
increased susceptibility to respiratory illnesses like pneumonia and 
bronchitis. It can also have detrimental effects on plants and 
ecosystems.

C. What is the background for the BPA area under the 1-hour ozone 
NAAQS?

    On December 11, 2002, the U.S. Court of Appeals for the Fifth 
Circuit vacated EPA's attainment date extension policy, which had been 
applied to extend the 1-hour ozone attainment deadline for the BPA area 
without reclassifying the area. Sierra Club v. EPA, 314 F.3d 735 (5th 
Cir. 2002). Thereupon, EPA on March 30, 2004, withdrew the action 
extending the attainment deadline for BPA, finalized its finding that 
the area failed to attain the 1-hour ozone standard by the moderate 
area deadline, and reclassified the BPA area by operation of law, to 
serious nonattainment for the 1-hour ozone standard. See 61 FR 16483. 
As a result of its reclassification to serious, the State was required, 
among other things, to submit by April 29, 2005, a new 1-hour 
attainment demonstration SIP with an attainment date of November 15, 
2005 with new MVEBs and a new RACM analysis, a post-1996 rate of 
progress (ROP) plan with associated MVEBs and contingency measures, a 
new clean-fuel vehicle program or substitute, demonstrate the area met 
RACT, implement the EPA-triggered

[[Page 27517]]

failure-to-attain contingency measures, submit a replacement for, i.e., 
backfill for, the triggered failure-to-attain contingency measures, and 
to meet the remaining serious area requirements under section 182(c) of 
the Act. The State submitted the required elements on November 16, 
2004, as revised on October 15, 2005, and further revised on December 
16, 2008. EPA has approved all of the 1-hour serious area requirements 
for the BPA area, except for the CFV program, the ROP plan's 
contingency measures, the replacement failure-to-attain contingency 
measures, and the attainment demonstration SIP with associated MVEBs 
and RACM analysis. See Section VI.B.1. for further details.

D. What is the background for the BPA area under the 1997 8-Hour Ozone 
NAAQS?

    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm), which is more protective than the 
previous 1-hour ozone standard (62 FR 38855).\1\ The EPA published the 
1997 8-hour ozone designations and classifications on April 30, 2004 
(69 FR 23858). The BPA area was designated nonattainment and initially 
classified as marginal. The area includes three counties: Hardin, 
Jefferson, and Orange counties (these constitute the former 1-hour 
ozone nonattainment area). The effective date of designation for the 
1997 8-hour ozone NAAQS was June 15, 2004. Under the marginal 
nonattainment designation, the latest attainment date for the BPA area 
was June 15, 2007. The BPA did not monitor attainment of the 1997 8-
hour ozone NAAQS by the June 15, 2007 deadline, based upon complete, 
quality-assured and certified ambient air quality monitoring data for 
the 2004-2006 ozone seasons. The BPA area already met all of the 
requirements for a 1997 8-hour ozone marginal area except for the base 
year emissions inventory requirement. See Section VI.B.2. for further 
details.
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    \1\ On March 27, 2008 (73 FR 16436), EPA promulgated a revised 
8-hour ozone standard of 0.075 ppm. On January 6, 2010, EPA proposed 
to set the level of the primary 8-hour ozone standard within the 
range of 0.060 to 0.070 ppm, rather than at 0.075 ppm. EPA 
anticipates that by August 2010 it will have completed 
reconsideration of the standard and thereafter will proceed with 
designations. The actions addressed in today's proposed rulemaking 
relate only to redesignation for the 1997 8-hour ozone standard. 
EPA's actions with respect to this new standard do not affect EPA's 
action here.
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    Therefore, EPA determined that the BPA area had failed to attain 
the 1997 8-hour ozone standard by the applicable attainment deadline 
and the area was reclassified by operation of law as a moderate 1997 8-
hour ozone nonattainment area, effective April 17, 2008 (73 FR 14391). 
This determination was based on ambient air quality data from the 2004-
2006 monitoring period. More recent air quality data for the 2005-2007 
and 2006-2008 monitoring periods, as well as 2009 data that are in AQS 
but not yet certified, however, indicate that the BPA area is now 
attaining the 1997 8-hour ozone standard. See Section V.A.
    The deadline for submission of requirements to meet the area's new 
8-hour moderate nonattainment area classification was January 1, 2009 
(73 FR 14391). The TCEQ, on December 16, 2008, submitted a request that 
EPA determine that the BPA area has attained the 1997 8-hour ozone 
standard and redesignate it to attainment. The request included a 
maintenance plan with associated MVEBs, the 2002 base year emission 
inventory, the Texas CFV Program Equivalency Demonstration, and the 
backfill failure-to-attain contingency measures. The complete 
redesignation request was received by EPA before the deadline for 
submittal of the moderate area SIP requirements for the BPA area under 
the 1997 8-hour ozone standard.

III. What are the impacts of the court decisions on EPA's Phase 1 and 2 
implementation rules upon the BPA area redesignation request?

A. Summary of the Court Decisions

    This section sets forth EPA's views on the effect of the DC 
Circuit's rulings on this proposed redesignation action. For the 
reasons set forth below, EPA does not believe that the Court's rulings 
alter any requirements relevant to this redesignation action or prevent 
EPA from proposing or ultimately finalizing this redesignation. EPA 
believes that the Court's December 22, 2006, June 8, 2007, and July 10, 
2009, decisions impose no impediment to moving forward with 
redesignation of this area to attainment of the 1997 8-hour ozone 
NAAQS.
    EPA published a first phase rule governing implementation of the 
1997 8-hour ozone standard (Phase 1 Rule) on April 30, 2004 (69 FR 
23951). The Phase 1 Rule addresses classifications for the 1997 8-hour 
NAAQS and for revocation for the 1-hour NAAQS; how anti-backsliding 
principles will ensure continued progress toward attainment of the 1997 
8-hour NAAQS; attainment dates; and the timing of emissions reductions 
needed for attainment. The Phase 1 Rule revoked the 1-hour ozone 
standard. The Phase 1 Rule also provided that 1-hour ozone 
nonattainment areas are required to adopt and implement ``applicable 
requirements'' according to the area's classification under the 1-hour 
ozone standard for anti-backsliding purposes. See 40 CFR 51.905(a)(i). 
On May 26, 2005, we determined that an area's 1-hour designation and 
classification as of June 15, 2004 would dictate what 1-hour 
obligations remain as ``applicable requirements'' under the Phase 1 
Rule. 40 CFR 51.900(f). (70 FR 30592).
    On December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit vacated EPA's Phase 1 Rule in South Coast Air Quality 
Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006). On June 8, 2007, 
in response to several petitions for rehearing, the court clarified 
that the Phase 1 rule was vacated only with regard to those parts of 
the rule that had been successfully challenged. See 489 F.3d 1245 (DC 
Cir. 2007), cert. denied, 128 S.Ct. 1065 (2008). By limiting the 
vacatur, the Court let stand EPA's revocation of the 1-hour standard 
and those anti-backsliding provisions of the Phase 1 rule that had not 
been successfully challenged. The June 8, 2007 opinion reaffirmed the 
December 22, 2006 decision that EPA had improperly failed to retain 
four measures required for 1-hour nonattainment areas under the anti-
backsliding provisions of the regulations: (1) Nonattainment area new 
source review (NSR) requirements based on an area's 1-hour 
nonattainment classification; (2) section 185 penalty fees for 1-hour 
severe or extreme nonattainment areas that fail to attain the 1-hour 
standard by the 1-hour attainment date; and (3) measures to be 
implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on 
the contingency of an area not making reasonable further progress 
toward attainment of the 1-hour NAAQS or for failure to attain that 
NAAQS; and (4) the court clarified that the Court's reference to 
conformity requirements was limited to requiring the continued use of 
1-hour motor vehicle emissions budgets until 8-hour budgets were 
available for 8-hour conformity determinations.
    EPA published a second rule governing implementation of the 1997 8-
hour ozone standard (Phase 2 Rule) on November 29, 2005 (70 FR 71612), 
as revised on June 8, 2007 (72 FR 31727). The Phase 2 Rule addresses, 
among other things, the Clean Data Policy as codified in 40 CFR 51.918. 
The DC Circuit upheld the Clean Data Policy, agreeing with the Tenth 
Circuit that EPA's interpretation of the Act was reasonable. NRDC v. 
EPA, 571 F.3d

[[Page 27518]]

1245 (DC Cir. 2009). See Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 
1996).

B. Summary of EPA's Analysis of the Impact of the Court Decisions on 
the BPA Area

1. Requirements Under the Eight-Hour Ozone Standard
    For the eight-hour ozone standard, the BPA ozone nonattainment area 
was originally classified as marginal nonattainment under subpart 2 of 
the CAA. The June 8, 2007, opinion clarifies that the Court did not 
vacate the Phase 1 Rule's provisions with respect to classifications 
for areas under subpart 2. The Court's decision, therefore, upholds 
EPA's classifications for those areas classified under subpart 2 for 
the eight-hour ozone standard, and all eight-hour ozone requirements 
for these areas remain in place.
2. Requirements Under the One-Hour Ozone Standard
    In its June 8, 2007, decision, the Court limited its vacatur so as 
to uphold those provisions of EPA's anti-backsliding requirements that 
were not successfully challenged. Therefore, an area must meet the 
anti-backsliding requirements, see 40 CFR 51.900, et seq.; 70 FR 30592, 
30604 (May 26, 2005), which apply by virtue of the area's 
classification for the one-hour ozone NAAQS.
    The provisions in 40 CFR 51.905(a)-(c) explain the applicable 1-
hour ozone anti-backsliding requirements that remain in effect. Areas 
must continue to meet those requirements to be redesignated. However, 
the court vacated the portions of 51.905(e) that removed the 
obligations to meet the additional provisions noted above and as a 
result, states also have had to continue to meet these additional 
requirements. We address below how the 1-hour anti-backsliding 
obligations (as interpreted and directed by the court) are met in the 
context of a redesignation action for the 1997 8-hour NAAQS.
    The BPA 1-hour nonattainment area was reclassified as serious for 
that standard on June 15, 2004, so the 1-hour ozone standard 
requirements applicable to the area are those that apply to 
nonattainment areas classified as serious. Pursuant to 40 CFR 
51.905(a)-(c) and the court opinions, the applicable serious area 
requirements include a demonstration that the area meets serious area 
Reasonably Available Control Technology (RACT) for both VOC and 
NOX, a revised 1990 base year emissions inventory, a Post-
1996 Rate of Progress (ROP) Plan with Contingency Measures and MVEB, a 
replacement, i.e., a backfill, for the failure-to-attain contingency 
measures triggered by the reclassification (this is equivalent to the 
requirement to meet the serious area contingency measure requirement), 
an enhanced monitoring program, a clean-fuel vehicle program or an 
acceptable substitute, an attainment demonstration with a reasonably 
available control measures (RACM) demonstration, revised transportation 
conformity budgets, and serious area NSR. The State has submitted each 
of the required 1-hour serious area plan requirements. EPA has approved 
each of the 1-hour serious area requirements except for the following: 
The attainment demonstration and RACM analysis, the CFV program or 
acceptable substitute, the ROP plan's contingency measures, the 
backfill failure-to-attain contingency measures, and the serious NSR 
requirements. The obligations to have an approved 1-hour ROP plan's 
contingency measures, backfill failure-to-attain contingency measures, 
and attainment demonstration with a RACM demonstration would be 
suspended by a determination of attainment of the 1-hour ozone 
standard, and will cease to apply upon redesignation of the area for 
the 8-hour standard. The 1-hour anti-backsliding serious Nonattainment 
New Source Review (NNSR) will also cease to apply upon redesignation 
for the 1997 8-hour ozone standard, and will be replaced by prevention 
of significant deterioration (PSD) SIP.
    EPA is proposing to approve the following outstanding 1-hour ozone 
applicable requirement: The Texas CFV Program Equivalency 
Demonstration. EPA also is proposing to approve the Post-1996 ROP 
plan's contingency measures and the State's backfill failure-to-attain 
contingency measures. EPA has taken no action on the submitted 
attainment demonstration with the RACM analysis and serious 1-hour 
ozone NSR requirements. In lieu of nonattainment NSR, the BPA area will 
become subject to PSD upon redesignation.
    For the BPA 1-hour ozone serious nonattainment area, EPA previously 
approved VOC and NOX rules into the Texas SIP, found they met RACT, and 
found that the BPA area meets the serious area VOC and NOX RACT 
requirements. EPA also previously approved the revised 1990 base year 
emissions inventory, the post-1996 ROP plan and MVEB, and the enhanced 
monitoring program. In this rulemaking, EPA is proposing to approve the 
State's CFV Equivalence Demonstration as meeting the outstanding 1-hour 
ozone anti-backsliding serious area requirement for the area. We also 
are proposing to approve the post-1996 ROP plan's contingency measures 
and the backfill failure-to-attain contingency measures. The obligation 
to submit a 1-hour serious area attainment demonstration and RACM 
analysis and contingency measures will be suspended if EPA's proposal 
to determine that the area has attained the 1-hour standard is 
finalized, and the area will be relieved of these obligations upon 
final redesignation for the 1997 8-hour ozone standard.

IV. What are the CAA criteria for redesignation?

    The Act sets forth the requirements for redesignating a 
nonattainment area to attainment. Specifically, CAA section 
107(d)(3)(E) allows for redesignation providing that (1) the 
Administrator determines that the area has attained the applicable 
NAAQS; (2) the Administrator has fully approved the applicable 
implementation plan for the area under CAA section 110(k); (3) the 
Administrator determines that the improvement in air quality is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the applicable SIP and applicable Federal air 
pollutant control regulations and other permanent and enforceable 
reductions; (4) the Administrator has fully approved a maintenance plan 
for the area as meeting the requirements of CAA section 175A; and (5) 
the State containing such area has met all requirements applicable to 
the area under CAA section 110 and part D.
    EPA provided guidance on redesignation in the General Preamble for 
the Implementation of Title I of the CAA Amendments of 1990, on April 
16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 
1992 (57 FR 18070). EPA has provided further guidance on processing 
redesignation requests in the following documents:

    1. ``Ozone and Carbon Monoxide Design Value Calculations,'' 
Memorandum from Bill Laxton, June 18, 1990.
    2. ``Maintenance Plans for Redesignation of Ozone and Carbon 
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief, 
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
    3. ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
    4. ``Procedures for Processing Requests to Redesignate Areas to 
Attainment'', Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992;
    5. ``State Implementation Plan (SIP) Actions Submitted in 
Response to Clean Air

[[Page 27519]]

Act (ACT) Deadlines,'' Memorandum from John Calcagni, Director, Air 
Quality Management Division, October 28, 1992;
    6. ``Technical Support Documents (TSD's) for Redesignation of 
Ozone and Carbon Monoxide (CO) Nonattainment Areas'', Memorandum 
from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, 
August 17, 1993;
    7. ``State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) 
On or After November 15, 1992'', Memorandum from Michael Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 17, 
1993;
    8. ``Use of Actual Emissions in Maintenance Demonstrations for 
Ozone and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, 
Acting Director, Air Quality Management Division, November 30, 1993;
    9. ``Part D New Source Review (Part D NSR) Requirements for 
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary 
D. Nichols, Assistant Administrator for Air and Radiation, October 
14, 1994; and
    10. ``Reasonable Further Progress, Attainment Demonstration, and 
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone 
National Ambient Air Quality Standard,'' Memorandum from John S. 
Seitz, Director, Office of Air Quality Planning and Standards, May 
10, 1995.

V. What is EPA's proposed determination degarding attainment for the 
1997 8-hour and the 1-hour ozone NAAQS for the BPA area?

A. Is the BPA area attaining the 1997 8-hour ozone NAAQS?

    For ozone, an area may be considered to be attaining the 1997 8-
hour ozone NAAQS if there are no violations, as determined in 
accordance with 40 CFR 50.10 and Appendix I of part 50, based on three 
complete, consecutive calendar years of quality-assured air quality 
monitoring data. This standard is attained if the 3-year average of the 
annual fourth highest daily maximum 8-hour average ambient ozone 
concentration at each monitor in the area that is eligible for 
comparison to the NAAQS is less than or equal to 0.08 ppm. Based on the 
rounding convention described in 40 CFR part 50, Appendix I, the 1997 
8-hour ozone standard is attained at a monitor if the design value is 
0.084 ppm or below. The data must be collected and quality-assured in 
accordance with 40 CFR part 58, and recorded in the EPA Air Quality 
System (AQS). The monitors generally should have remained at the same 
location for the duration of the monitoring period required for 
demonstrating attainment. For ease of communication, many reports of 
ozone concentrations are given in parts per billion (ppb); ppb = ppm x 
1,000. Thus, 0.084 ppm equals 84 ppb.
    EPA reviewed BPA area ozone monitoring data from ambient ozone 
monitoring stations for the ozone seasons 2005 through 2007, as well as 
data for the ozone seasons 2006 through 2008 and data for 2009 in AQS 
but not yet certified. The 2005-2007 ozone season data was relied upon 
by Texas in its submittal. Since the State's submittal, the 2006-2008 
ozone season data has been quality assured and recorded in AQS. The 
design value for 2005-2007 is 0.083 ppm; the design value for 2006-2008 
is 0.081 ppm. The preliminary design value for the additional year of 
2009, i.e., the 2007-2009 ozone seasons, is 0.077 ppm. The data for all 
three sets of ozone seasons show that the BPA area is attaining the 
1997 8-hour ozone NAAQS.
    Table 1 provides the design values based on data from the nine 
monitors in the BPA area. Each of the nine monitoring sites in the BPA 
area monitored attainment with the 1997 8-hour ozone standard for the 
2005-2007 ozone seasons and for the 2006-2008 ozone seasons. (To find 
the overall design value for the area for a given year, simply find the 
highest design value from any of the nine monitors for that year.) The 
location of each monitoring site in the BPA area is shown on the map 
entitled, ``BPA ozone and ozone precursor monitoring network'' included 
in the docket associated with this action.

                   Table 1--BPA Area Fourth Highest 8-hour Ozone Concentrations and Design Values Data for All Monitors (ppm) 1 2 3 4
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             4th Highest daily max                     Design values three year averages
                    BPA monitor site                     -----------------------------------------------------------------------------------------------
                                                             2005        2006        2007        2008        2009      2005-2007   2006-2008   2007-2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lamar (48-245-0009).....................................       0.081       0.085       0.080       0.072       0.071       0.082       0.079       0.074
Port Arthur (48-245-0011)...............................       0.079       0.085       0.073       0.071       0.073       0.079       0.076       0.072
Sabine Pass (48-245-0101)...............................       0.082       0.084       0.078       0.069       0.073       0.081       0.077       0.073
Hamshire (48-245-0022)..................................       0.080       0.081       0.077       0.070       0.070       0.079       0.076       0.072
West Orange (48-361-1001)...............................       0.078       0.078       0.073       0.064       0.073       0.076       0.071       0.070
Mauriceville (48-361-1100)..............................       0.076       0.071       0.075       0.069       0.067       0.074       0.071       0.070
Jefferson Co. Airport (48-245-0018).....................       0.083       0.084       0.082       0.078       0.071       0.083       0.081       0.077
SETRPC Port Arthur (48-245-0628)........................       0.078       0.082       0.076       0.065       0.069       0.078       0.074       0.070
Nederland (48-245-1035) \4\.............................  ..........       0.068       0.082       0.067       0.069  ..........       0.072       0.072
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Unlike for the 1-hour ozone standard, design value calculations for the 1997 8-hour ozone standard are based on a rolling three-year average of the
  annual 4th highest values (40 CFR Part 50, Appendix I).
\2\ Monitoring site locations for BPA are shown on a map entitled, ``BPA ozone and ozone precursor monitoring network'' included in the docket.
\3\ Monitoring data for 2009 are in AQS but not yet certified (as of March 26, 2010).
\4\ Monitoring did not begin at the Nederland site until 2006.


[[Page 27520]]

    The fourth high values for 8-hour ozone for 2005 through 2009, and 
the 3-year average of these values (i.e., design value), are summarized 
in Table 2:

                         Table 2--BPA Area Fourth Highest 8-Hour Ozone Concentrations and Design Values Data Summary (ppm) 1 2 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  4th highest daily max                             Design values three-year averages
            BPA area overall             ---------------------------------------------------------------------------------------------------------------
                                              2005          2006          2007          2008          2009        2005-2007     2006-2008     2007-2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                0.083         0.084         0.082         0.078         0.071         0.083         0.081         0.077
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Unlike for the 1-hour ozone standard, design value calculations for the 8-hour ozone standard are based on a rolling three-year average of the
  annual 4th highest values (40 CFR Part 50, Appendix I).
\2\ Monitoring data for 2009 are in AQS but not yet certified (as of March 26, 2010).
\3\ The fourth high data in this table is from the Jefferson Co. Airport monitor site (AQS 48-245-0018).

    As shown in Table 2, the 8-hour ozone design value for 2005-2007, 
and also for 2006-2008, which is based on a three-year average of the 
fourth-highest daily maximum average ozone concentration at the monitor 
recording the highest concentrations, is below the 1997 8-hour ozone 
NAAQS. The design values of 0.083 ppm for 2005-2007 and 0.081 ppm for 
2006-2008 demonstrate the area is in attainment of the 1997 8-hour 
ozone NAAQS. Data through 2008 have been quality assured, as recorded 
in AQS. Data for 2009 not yet certified also indicate that the area 
continues to attain the 1997 8-hour NAAQS. The preliminary design value 
for the BPA area for 2007-2009 is 0.077 ppm. In summary, monitoring 
data for BPA for the three years 2005 through 2007, as well as 
monitoring data for the three years 2006 through 2008 and preliminary 
monitoring data for 2009, show continued attainment of the 1997 8-hour 
ozone standard. Preliminary data for BPA for 2009 is included in the 
docket.
    In addition, as discussed below with respect to the maintenance 
plan, Texas has committed to continue monitoring in this area in 
accordance with 40 CFR part 58. In summary, EPA is proposing to 
determine that complete, quality- assured data for the 2005-2007 and 
2006-2008 ozone seasons show that the BPA 8-hour ozone nonattainment 
area has attained the 1997 8-hour ozone NAAQS and data for 2009 in AQS 
but not yet certified show that the area continues to attain the 
standard.
    Should the area violate the 1997 8-hour ozone standard before the 
proposed redesignation is finalized, EPA will not proceed with final 
redesignation.

B. Is the BPA area attaining the 1-hour ozone NAAQS?

    EPA is also proposing to determine that the BPA 1-hour ozone 
nonattainment area is currently attaining the 1-hour ozone NAAQS. This 
determination is based upon three years of complete, quality-assured 
and state- certified ambient air monitoring data that show the area has 
monitored attainment of the 1-hour ozone NAAQS for the 2006-2008 
monitoring period. Data for 2009 in AQS but not yet certified indicate 
that that the area continues in attainment for the 1-hour standard.
    In 1979, EPA promulgated the revised 1-hour ozone standard of 0.12 
parts per million (ppm) (44 FR 8202, February 8, 1979). For ease of 
communication, many reports of ozone concentrations are given in parts 
per billion (ppb); ppb = ppm x 1000. Thus, 0.12 ppm becomes 120 ppb or 
124 ppb when rounding is considered.
    An area exceeds the 1-hour ozone standard each time an ambient air 
quality monitor records a 1-hour average ozone concentration above 0.12 
ppm in any given day. Only the highest 1-hour ozone concentration at 
the monitor during any 24-hour day is considered when determining the 
number of exceedance days at the monitor. An area violates the ozone 
standard if, over a consecutive 3-year period, more than 3 expected 
exceedances occur at the same monitor. For more information, please see 
``National 1-hour primary and secondary ambient air quality standards 
for ozone'' (40 CFR 50.9) and ``Interpretation of the 1-Hour Primary 
and Secondary National Ambient Air Quality Standards for Ozone'' (40 
CFR Part 50, Appendix H).
    The fourth-highest daily ozone concentration over a 3-year period 
is called the design value (DV). The DV indicates the severity of the 
ozone problem in an area; it is the ozone level around which a state 
designs its control strategy for attaining the ozone standard. A 
monitor's DV is the fourth highest ambient concentration recorded at 
that monitor over the previous 3 years. An area's DV is the highest of 
the design values from the area's monitors.
    The Act, as amended in 1990, required EPA to designate as 
nonattainment any area that was violating the 1-hour ozone standard, 
generally based on air quality monitoring data from the 1987 through 
1989 period (section 107(d)(4) of the Act; 56 FR 56694, November 6, 
1991).
    EPA is proposing to determine that the BPA 1-hour ozone 
nonattainment area is currently in attainment of the 1-hour standard 
based on the most recent 3 years of quality-assured air quality data. 
Certified ambient air monitoring data show that the area has monitored 
attainment of the 1-hour ozone NAAQS for the 2005-2007 as well as the 
2006-2008 monitoring period. Also, data in AQS but not yet certified 
for 2009 show that the BPA area has monitored no exceedances in that 
year and continues to meet the 1-hour ozone standard. Table 3 contains 
the 1-hour ozone data for the BPA 1-hour ozone nonattainment area 
monitors that show that the area is currently attaining the 1-hour 
ozone NAAQS, consistent with 40 CFR Part 50, Appendix H.

[[Page 27521]]



                                                Table 3--Beaumont-Port Arthur Area 1-Hour Ozone Data 1 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Number of exceedances                 3-year exceedances              Design values (ppb)
               BPA Monitor site                ---------------------------------------------------------------------------------------------------------
                                                 2005    2006    2007    2008    2009   2005-2007  2006-2008  2007-2009  2005-2007  2006-2008  2007-2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lamar (48-245-0009)...........................       0       0       0       0       0         0          0          0        106        106         98
Port Arthur (48-245-0011).....................       0       0       0       0       0         0          0          0        104        101         93
Sabine Pass (48-245-0101)\2\..................     1.2       0       0       0       0       0.4          0          0        107        102         96
Hamshire (48-245-0022)........................       0       0       0       0       0         0          0          0         97         97         95
West Orange (48-361-1001).....................       0       0       0       0       0         0          0          0         99        100        100
Mauriceville (48-361-1100)....................       0       0       0       0       0         0          0          0         96         96         87
Jefferson Co. Airport (48-245-0018)...........       0       0       0       0       0         0          0          0        104        102         99
SETRPC Port Arthur (48-245-0628)..............       0       0       0       0       0         0          0          0         98         98         95
Nederland (48-245-1035).......................               0       0       0       0                    0          0                    93         93
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Monitoring data for 2009 are in AQS but not yet certified (as of March 26, 2010).
\2\ For the Sabine Pass site in 2005 the actual number of exceedances was 1 and the estimated number of exceedances was 1.2.

    EPA proposes to find that the BPA 1-hour ozone nonattainment area 
has attained the 1-hour ozone standard.

VI. Does the BPA area have a fully approved SIP under section 110(k) 
for the section 110 and part D requirements of the CAA applicable for 
purposes of redesignation?

    As discussed above in Section III, in evaluating a request for 
redesignation, EPA's long-held position is that those requirements 
expressly linked by statutory language with the attainment and 
reasonable further progress requirements do not apply if EPA determines 
that the area is attaining the standard. Additionally, it is EPA's 
interpretation of CAA section 107(d)(3)(E) that applicable requirements 
of the Act that come due subsequent to the area's submittal of a 
complete redesignation request remain applicable until a redesignation 
is approved, but are not required as a prerequisite to redesignation. 
Under this interpretation, to qualify for redesignation, states 
requesting redesignation to attainment must meet only the relevant 
requirements of the Act that come due prior to the submittal of a 
complete redesignation request. See Sierra Club v. EPA, 375 F.3d 537 
(7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) 
(redesignation of St. Louis, Missouri); September 4, 1992 Calcagni 
memorandum; September 17, 1993 Michael Shapiro memorandum, and 60 FR 
12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor, 
MI).
    Therefore, the applicable 1997 8-hour ozone standard requirements 
for the BPA area are those for a marginal, not a moderate nonattainment 
area. The State submitted a complete redesignation request for BPA on 
December 16, 2008, prior to the January 1, 2009 deadline for the 
submittal of the area's moderate area SIP requirements. Furthermore, 
since EPA is proposing to determine that the area has attained the 1997 
8-hour ozone standard, under the principles enunciated in the General 
Preamble and pursuant to 40 CFR 51.918, if that determination is 
finalized, then the obligations to submit requirements related to 
attainment and RFP are not applicable for purposes of redesignation.
    The requirements to submit for a moderate area, certain planning 
SIPs related to attainment, including attainment demonstration 
requirements [the reasonably available control measures (RACM) 
requirement of section 172(c)(1) of the Act, the reasonable further 
progress (RFP) and attainment demonstration requirements of sections 
172(c)(2) and (6) and 182(b)(1) of the Act, and the requirement for 
contingency measures of section 172(c)(9) of the Act] would not be 
applicable to the area as long as it continues to attain the 1997 8-
hour ozone NAAQS and would cease to apply upon redesignation to 
attainment.
    In addition, in the context of redesignations, EPA has interpreted 
requirements related to attainment as not applicable for purposes of 
redesignation. For example, in the General Preamble EPA stated that:

    [T]he section 172(c)(9) requirements are directed at ensuring 
RFP and attainment by the applicable date. These requirements no 
longer apply when an area has attained the standard and is eligible 
for redesignation. Furthermore, section 175A for maintenance plans * 
* * provides specific requirements for contingency measures that 
effectively supersede the requirements of section 172(c)(9) for 
these areas. [General Preamble for the ``Interpretation of Title I 
of the Clean Air Act Amendments of 1990,'' (General Preamble) 57 FR 
13498, 13564 (April 16, 1992)].

See also Calcagni memorandum dated Sept. 4, 1992 (``The requirements 
for reasonable further progress and other measures needed for 
attainment will not apply for redesignations because they only have 
meaning for areas not attaining the standard.'' From the memorandum, 
section 4.b.i.).
    Today, EPA is also proposing to approve the 2002 base year 
emissions inventory as meeting the marginal area applicable 
requirements of part D. In addition, EPA is proposing to approve the 
CFV program Equivalency Demonstration as meeting the only outstanding 
1-hour ozone anti-backsliding obligation for purposes of redesignation. 
Furthermore, EPA is proposing to find that upon final approval of these 
two measures, the BPA area will have a fully approved SIP under CAA 
section 110(k) for redesignation purposes and it will meet all CAA 
section 110 and part D applicable requirements for purposes of 
redesignation for the 1997 8-hour ozone standard.

A. What are the general SIP requirements applicable for purposes of 
redesignation for the BPA area?

    EPA's long-held interpretation of the Act is that section 110 
general SIP elements not linked to an area's nonattainment status and 
classification are not applicable for purposes of redesignation. 
Section 110(a)(2) of title I of the Act delineates the general 
requirements for a SIP, which include enforceable emissions limitations 
and other control measures, means, or techniques, provisions for the 
establishment and operation of appropriate devices necessary to collect 
data on ambient air quality, and programs to enforce the limitations.
    For example, CAA section 110(a)(2)(d) requires that SIPs contain 
certain measures to prevent sources in a state from significantly 
contributing to air quality problems in another state. To implement 
this provision, EPA has required certain states, but not Texas, to 
establish programs to address the

[[Page 27522]]

transport of air pollutants (NOX SIP Call). Texas submitted 
a SIP revision to address interstate transport on May 1, 2008. The 
purpose of that SIP revision was to document that emissions from Texas' 
sources that may contribute to nonattainment in another state have been 
mitigated through existing control strategies. However, CAA section 
110(a)(2)(D) requirements for a state are not linked with a particular 
nonattainment area's designation and classification in that state. EPA 
believes that the requirements linked with a particular nonattainment 
area's designation and classification are the relevant measures to 
evaluate in reviewing a redesignation request. The transport SIP 
submittal requirements, where applicable, continue to apply to a state 
regardless of the designation of any one particular area in the state. 
Thus, we do not believe that these requirements should be construed to 
be applicable requirements for purposes of redesignation.
    Further, EPA believes that the other CAA section 110 elements not 
connected with nonattainment plan submissions and not linked with an 
area's attainment status are not applicable requirements for purposes 
of redesignation. The State will still be subject to these requirements 
after the area is redesignated. The section 110 and part D 
requirements, which are linked with a particular area's designation and 
classification, are the relevant measures to evaluate in reviewing a 
redesignation request.
    We have reviewed Texas's SIP and have concluded that it meets the 
general SIP requirements under section 110 of the CAA to the extent 
they are applicable for purposes of redesignation. EPA has previously 
approved provisions of the Texas SIP addressing section 110 elements 
under the 1-hour ozone standard (40 CFR 52.2270-.2280). Further, in a 
certified letter dated April 4, 2008 (a copy of this letter and the 
enclosure to the letter are available in the docket), as well as in a 
SIP revision submitted May 1, 2008, Texas confirmed that the State 
continues to meet the section 110 requirements for the 8-hour ozone 
standard. EPA has not yet taken rulemaking action on these submittals; 
however, such approval is not necessary for redesignation.

B. What are the part D requirements applicable for purposes of 
redesignation for the BPA area?

    EPA has reviewed the Texas SIP for the BPA area with respect to SIP 
requirements applicable for purposes of redesignation under part D of 
the Act for both the 1-hour ozone NAAQS and the 1997 8-hour ozone 
NAAQS. EPA believes that the Texas SIP for the BPA area contains 
approved SIP measures that meet the part D requirements applicable for 
purposes of redesignation, with the exception of the requirements for 
an approved emissions inventory and the CFV program Equivalency 
Demonstration, which we are proposing to approve in this rulemaking. 
Upon final approval of these requirements, the BPA area will meet all 
of the requirements applicable to the area for purposes of 
redesignation under part D of the Act.
    The 1-hour and 1997 8-hour ozone applicable requirements are 
discussed in detail below.
1. What are the part D requirements applicable for purposes of 
redesignation for the BPA area under the 1-hour ozone standard?
    The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 
one-hour ozone NAAQS requirements that continue to apply after 
revocation of the one-hour ozone NAAQS for former one-hour ozone 
nonattainment areas. Section 51.905(a)(1) provides that:
    The area remains subject to the obligations to adopt and implement 
the applicable requirements defined in section 51.900(f), except as 
provided in paragraph (a)(1)(iii) of this section and except as 
provided in paragraph (b) of this section.
    Section 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005), 
provides that: Applicable requirements means that for an area that the 
following requirements, to the extent such requirements applied to the 
area for the area's classification under section 181(a)(1) of the CAA 
for the one-hour NAAQS at the time of designation for the eight-hour 
NAAQS, remain in effect:
    (1) Reasonably available control technology (RACT).
    (2) Inspection and maintenance programs (I/M).
    (3) Major source applicability cut-offs for purposes of RACT.
    (4) Rate of Progress (ROP) reductions.
    (5) Stage II vapor recovery.
    (6) Clean-fuel vehicle program under section 182(c)(4) of the CAA.
    (7) Clean fuels for boilers under section 182(e)(3) of the CAA.
    (8) Transportation Control Measures (TCMs) during heavy traffic 
hours as provided under section 182(e)(4) of the CAA.
    (9) Enhanced (ambient) monitoring under section 182(c)(1) of the 
CAA.
    (10) TCMs under section 182(c)(5) of the CAA.
    (11) Vehicle Miles Travelled (VMT) provisions of section 182(d)(1) 
of the CAA.
    (12) NOX requirements under section 182(f) of the CAA.
    (13) Attainment demonstration or alternative as provided under 
section 51.905(a)(1)(ii).
    In addition to applicable requirements listed under section 
51.900(f), the State must also comply with the additional 1-hour anti-
backsliding requirements discussed in the Court's decisions in South 
Coast Air Quality Management Dist. v. EPA: (1) NSR requirements based 
on the area's 1-hour ozone nonattainment classification; (2) section 
185 source penalty fees; (3) contingency measures to be implemented 
pursuant to section 172(c)(9) or 182(c)(9) of the CAA for areas not 
making reasonable further progress toward attainment of the one-hour 
ozone NAAQS, or for failure to attain the NAAQS; and, (4) 
transportation conformity requirements for certain types of Federal 
actions.
    Pursuant to 40 CFR 51.905(c), the area is subject to the 
obligations set forth in 51.905(a) and 51.900(f). The following 
addresses the one-hour ozone SIP requirements applicable to the BPA 
area pursuant to these anti-backsliding requirements and those 
discussed in the Court's decision in South Coast Air Quality Management 
Dist. v. EPA.
    Prior to the revocation of the one-hour ozone standard on June 15, 
2005, the BPA area was classified as a serious nonattainment area for 
the one-hour ozone standard with a compliance date of November 15, 
2007. In reviewing the State of Texas' 1997 8-hour ozone redesignation 
request for the BPA area, we assessed whether the area satisfied the 
CAA anti-backsliding requirements under the one-hour ozone standard. We 
conclude that the BPA area and the State of Texas have satisfied all 
anti-backsliding CAA requirements applicable to a serious one-hour 
ozone nonattainment area for purposes of redesignation, except for the 
CFV program or an acceptable substitute under section 183(c)(4) of the 
CAA. See 40 CFR 51.905 (6). Today, we are proposing to approve the 
State's equivalency CFV demonstration. See below.
    The following discusses how the applicable CAA requirements have 
been met in the BPA area. Note that the State commits to continue to 
comply with these requirements unless revised through SIP revisions 
approved by the EPA.
    40 CFR 51.905 (1) and (3). RACT and Major source applicability cut-
offs for purposes of RACT. EPA found that the BPA area met the serious 
area VOC and

[[Page 27523]]

NOX RACT requirements for the 1-hour standard on July 10, 
2009 (74 FR 33146). This action also approved Texas' changes to the 
batch process rules and the shipbuilding and ship repair rules that 
lower the threshold for affected sources of VOC emissions to the 
serious area requirements of 50 tons per year (tpy). This July 10, 2009 
approval action satisfies the 1-hour ozone serious RACT requirements 
for the BPA area.
    40 CFR 51.905 (2). Inspection and maintenance programs (I/M). There 
is no requirement for the BPA area to have an I/M program. The Federal 
I/M Flexibility Amendments of 1995 determined that urbanized areas with 
populations less than 200,000 for 1990 (such as BPA) are not mandated 
to participate in the I/M program (60 FR 48033, September 18, 1995).
    40 CFR 51.905 (4). Rate of progress reductions. We approved the 
post-1996 ROP Plan and its associated MVEB and a revised 1990 base year 
emissions inventory on February 22, 2006 (71 FR 8962) for the BPA 
serious 1-hour ozone nonattainment area. This plan covered the 3-year 
periods of 1997-1999, 2000-2002, and 2003-2005, achieving 27 percent 
reductions no later than November 15, 2005.
    40 CFR 51.905 (5) Stage II vapor recovery. EPA approved Texas' 
Stage II rules and amendments for the BPA area on April 15, 1994 (59 FR 
17940), and as revised on March 29, 2005 (70 FR 15769).
    40 CFR 51.905 (7) Clean fuels for boilers under section 182(e)(3) 
of the CAA. This is an extreme area requirement and therefore does not 
apply to the BPA serious area.
    40 CFR 51.905 (8) Transportation Control Measures (TCMs) during 
heavy traffic hours as provided under section 182(e)(4) of the CAA. 
This is an extreme area requirement and therefore does not apply to the 
BPA serious area.
    40 CFR 51.905 (9) Enhanced (ambient) monitoring under section 
182(c)(1) of the CAA. EPA approved the Texas SIP revision for enhanced 
ambient monitoring on October 4, 1994 (59 FR 50504) as meeting section 
182(c)(1) of the CAA. The monitoring network meets the requirements in 
40 CFR Part 58 and section 182(c)(1) for enhanced monitoring.
    40 CFR 51.905 (10) TCMs under section 182(c)(5) of the CAA. As 
required by the Clean Air Act section 176(c) (42 U.S.C. 7506(c)), the 
Southeast Texas Regional Planning Commission, the Metropolitan Planning 
Organization for the BPA area, demonstrated conformity of area 
transportation plans to the motor vehicle emissions budgets established 
in the BPA Rate-of-Progress SIP approved by EPA on February 22, 2006 
(71 FR 8962). The Federal Highway Administration determined on 
September 25, 2007 that the area transportation plans conformed to the 
budgets established by the SIP. The current aggregate vehicle mileage, 
aggregate vehicle emissions, congestion levels, and other relevant 
parameters were determined, as part of the conformity analysis, to be 
consistent with those used for the area's demonstration of progress 
towards attainment.
    40 CFR 51.905 (11) Vehicle miles traveled (VMT) provisions of 
section 182(d)(1) of the CAA. This is a severe area requirement and 
therefore does not apply to the BPA serious area.
    40 CFR 51.905 (12) NOX requirements under section 182(f) 
of the CAA. These requirements were satisfied by a previous EPA action 
approving a Texas SIP revision for NOX controls in the BPA 
area on March 3, 2000 (65 FR 11468).
    40 CFR 51.905 (13) Attainment demonstration or alternative as 
provided under section 51.905(a)(1)(ii). Texas elected the option to 
submit an 8-hour ozone attainment demonstration SIP to demonstrate 
attainment of the 8-hour ozone standard by the area's 8-hour ozone 
attainment date with associated MVEBs and an RACM analysis. The SIP was 
submitted to EPA on November 16, 2004, as revised on October 15, 2005. 
EPA has not acted on it. As discussed previously, EPA's long-held 
position is that an attainment demonstration with the RACM analysis is 
not an applicable requirement for purposes of evaluating an ozone 
redesignation request. (General Preamble, 57 FR 13564.) See also 40 CFR 
51.918. Upon the effective date of redesignation, the obligation is 
terminated. Moreover EPA is proposing to determine that the area has 
attained the 1-hour ozone standard, and for that reason as well, if the 
determination is finalized, the area would not be obligated to submit a 
1-hour attainment demonstration.
South Coast Anti-Backsliding Measures
    NSR. EPA has long held its position that a fully-approved NSR 
program is not an applicable requirement for purposes of evaluating an 
ozone redesignation request. The rationale for this view is described 
in a memorandum from Mary Nichols, Assistant Administrator for Air and 
Radiation dated October 14, 1994, titled, ``Part D New Source Review 
Requirements for Areas Requesting Redesignation to Attainment.'' The 
State's PSD program becomes effective in the area immediately upon 
redesignation to attainment.\2\ Consequently, EPA concludes that an 
approved NSR program is not an applicable requirement for purposes of 
redesignation. See the more detailed explanations of this issue in the 
following rulemakings: Detroit, Michigan (60 FR 12467-12468, March 7, 
1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 
1996); Louisville, Kentucky (66 FR 53665, 53669, October 23, 2001); 
Grand Rapids, Michigan (61 FR 31831, 31836-31837, June 21, 1996).
---------------------------------------------------------------------------

    \2\ If the State believes that a rule change is required, it 
must adopt and submit it to EPA for approval as a SIP revision. Upon 
EPA's approval of the SIP revision submittal, PSD applies in the 
area.
---------------------------------------------------------------------------

    Section 185 fees. This is a requirement for severe and extreme 
areas only, and therefore does not apply to the BPA serious area.
    Contingency Measures. Sections 172(c)(9) and 182(c)(9) of the CAA 
require ozone control plans to contain measures to be implemented in 
the event that any RFP or attainment milestone in the ozone control 
plan is missed. EPA approved the 1-hour ozone contingency measures for 
the BPA area on February 10, 1998 at 63 FR 6659 as part of EPA's 
approval of the BPA area's 1-hour ozone 15% VOC ROP Plan. These 
contingency measures included the Federal Tier I rules, the Federal 
small engine VOC rule, and excess reductions from the 15% VOC ROP Plan. 
When EPA reclassified the BPA area to serious for the 1-hour ozone 
NAAQS, these are the contingency measures that EPA triggered. EPA is 
proposing to approve the post-1996 ROP plan's associated contingency 
measures, submitted to EPA on November 16, 2004. The contingency 
measures are federal and state measures already being implemented that 
are in excess of those needed for ROP and are sufficient to provide the 
needed contingency measure reductions. For more information, please see 
Section X. and TSD Part II.E. found in the electronic docket.
    As noted elsewhere in this proposed rule, it is EPA's position that 
contingency measures are not an applicable requirement for purposes of 
evaluating an ozone redesignation request. EPA's long-held position is 
that those requirements expressly linked by statutory language with the 
attainment and reasonable further progress do not apply when an area 
requesting redesignation is attaining the standard.
    For more detail of the applicable 1-hour ozone requirements and 
EPA's approval actions, see Part II.A. of the

[[Page 27524]]

TSD, which is included in the electronic docket.
    As previously noted, it is EPA's position that further EPA action 
is required upon one 1-hour ozone serious area requirement: The CFV 
program or substitute. A summary of the Texas submittals and EPA's 
proposed action follows. More detail on the contents of the submittals 
and EPA's technical analysis may be found in the TSD, Part II.A.
Clean-Fuel Vehicle Program (Including Centrally Fueled Fleets 
Requirements)
    (i) What are the Clean-fuel vehicle program requirements?
    The 1990 CAA amendments established the clean-fuel vehicle (CFV) 
program that requires clean alternative fuels for a ``covered fleet'' 
in order to reduce emissions in certain ozone and carbon monoxide 
nonattainment areas. A ``covered fleet'' means a fleet that has ten or 
more vehicles that are either centrally fueled or capable of being 
centrally fueled. For serious ozone nonattainment areas, States are 
required to either adopt the CFV program prescribed under CAA part C of 
title II, or implement a substitute for the program that demonstrates 
equivalent long-term reductions in ozone-producing emissions within 1 
year after reclassification (CAA sections 182(c)(4) and 246(a)(3)). CAA 
section 246 describes the requirements for Centrally Fueled Fleets 
(CFF). EPA may adjust the compliance deadlines where compliance with 
such deadlines would be infeasible. (CAA section 246(a)(3).) Currently, 
the federal CFF program requires 70% of new light duty vehicles and 
trucks and 50% of new heavy-duty vehicles in a covered fleet to meet 
certain prescribed exhaust emission standards for light duty vehicles, 
light duty trucks and heavy-duty vehicles. (CAA section 246(b)(3).) EPA 
has determined that, beginning with the 2006 model years, both the Tier 
II conventional vehicle and engine standards and heavy-duty vehicle and 
engine standards are either equivalent to or more stringent than the 
applicable CFV program Low Emission Vehicle (LEV) standards. See EPA 
Dear Manufacturer Letter CCD-05-12 (LDV/LDT/MDPV/HDV/HDE/LD-AFC) (July 
21, 2005).
    (ii) What are the CFV program requirements for the BPA area?
    The March 30, 2004, reclassification of the area to serious 
nonattainment was effective April 29, 2004, and required that a CFV 
program or substitute that would achieve equivalent reductions be 
submitted to EPA by April 29, 2005.
    (iii) How did the State Meet the CFV Requirements for BPA?
    The State addresses this CFV program requirement by making an 
equivalency demonstration showing that the Federal Tier II and heavy-
duty vehicle and engine standards are more stringent than or equivalent 
to the CFV program LEV standards, beginning with the 2006 model year. 
Texas used the 2006 model year in the equivalency demonstration because 
it is the earliest full vehicle model year that would have been 
affected by a CFV program upon adoption of a program by April 29, 2005 
(i.e., the 2006 model year would begin on September 1, 2005). The 
demonstration showed that the resulting emissions reductions from Tier 
II and the heavy-duty vehicle and engine standards meet or exceed the 
emissions reductions that a CFV program would provide in the BPA 
nonattainment area and, therefore, the implementation of the Tier II 
and heavy-duty standards serve as an adequate substitute for a CFV 
program.
    Specifically, relying upon EPA's data, beginning with the 2006 
model year, Texas shows Tier 2 Light-Duty Vehicles (LDVs), Light-Duty 
Trucks (LDTs 1-4), and Medium Duty Passenger Vehicles (MDPVs) certified 
to certain Tier 2 bin standards, to be equivalent to or more stringent 
than the CFV program LEV emission standards. In addition, Texas 
demonstrates that Tier 2 LDVs, LDTs 1-4, and MDPVs certified to other 
Tier 2 bin standards, are equivalent to or more stringent than the CFV 
program LEV emission standards. Texas performs a similar analysis, 
showing that standards for 2006 and later model years for Otto cycle 
and diesel heavy-duty vehicles ranging from 8501-14,000 Gross Vehicle 
Weight Rating are more stringent than the CFV program LEV emissions 
standards for these vehicles.
    (iv) What is EPA proposing?
    EPA is proposing to approve, under section 182(c)(4)(B) of the CAA, 
Texas' equivalency demonstration that emissions reductions under Tier 
II and the heavy-duty engine and vehicle standards achieve equivalent 
or greater emissions reductions than would be expected from 
implementation of the CFV Program in the BPA nonattainment area. This 
approval is supported by the determination made by EPA that the use of 
the 2006 model year as the first model year vehicles that would be 
covered by a CFV program in the equivalency demonstration is 
appropriate. Thus, new vehicles purchased by fleet operators for Model 
Years 2006 and beyond would necessarily achieve, as required by the 
Tier II and heavy-duty engine standards, as much or more reductions 
than if the State adopted a CFV program as required by the Act.
    The reclassification required the program to be submitted by April 
29, 2005. EPA has determined that starting the program on April 29, 
2005 is infeasible under CAA section 246(a)(3) which allows EPA to 
adjust the implementation date of a CFV program where implementation 
would otherwise be infeasible. EPA has decided that implementation of a 
CFV program in the BPA nonattainment area would be infeasible for the 
following reasons. As earlier explained, as of July 2005, EPA had 
determined that beginning with the 2006 model year the Tier II and 
heavy-duty engine and vehicle standards were either equivalent or more 
stringent than the CFV program LEV standards. Thus, Texas would have 
been required to implement the CFV program for approximately 4 months 
(i.e., from April 29, 2005, when the program was due under the 
reclassification, to August 31, 2005 when the 2006 model year began). 
For model years 2006 and beyond, the program would have been 
unnecessary. EPA believes that it would have been infeasible for Texas 
to initiate and oversee the elaborate record-keeping and reporting 
requirements associated with this program for this 4-month period only. 
Additionally, we note that owners and operators of covered fleet would 
likely not have been inclined to comply with the requirements of a 
program with such limited duration. Please see the TSD: Part II.A. for 
further discussion of this requirement.
    As noted above, with the exception of the CFV program, the BPA area 
currently has an approved SIP for all the 1-hour ozone anti-backsliding 
requirements applicable for purposes of redesignation. EPA is proposing 
to find that, if it finalizes approval of the CFV program Equivalency 
Demonstration, the BPA area will meet all 1-hour ozone anti-backsliding 
requirements applicable to the area for purposes of redesignation under 
section 110 and part D.
2. What are the part D requirements applicable for purposes of 
redesignation for the BPA area under the 1997 8-hour ozone standard?
    Part D, subpart 2 applicable SIP requirements. For the reasons set 
forth above, no moderate area requirements applicable for purposes of 
redesignation for the 1997 8-hour ozone standard under part D, section 
182(b) became due prior to the submission of the complete redesignation 
request, and therefore none are applicable to the Area for purposes of 
redesignation. If EPA

[[Page 27525]]

finalizes its proposed approval of the area's emissions inventory under 
section 182(a)(1), the area will have met all the requirements 
applicable under its prior marginal classification for purposes of 
redesignation.
    In addition to the fact that no moderate area part D requirements 
applicable for purposes of redesignation became due prior to submission 
of the redesignation request and therefore are not applicable, EPA 
believes it is reasonable to interpret the conformity and NSR 
requirements as not requiring approval prior to redesignation.
    Section 176 Conformity Requirements. Section 176(c) of the CAA 
requires states to establish criteria and procedures to ensure that 
Federally supported or funded projects conform to the air quality 
planning goals in the applicable SIP. The requirement to determine 
conformity applies to transportation plans, programs and projects 
developed, funded or approved under title 23 of the United States Code 
(U.S.C.) and the Federal Transit Act (transportation conformity) as 
well as to all other Federally supported or funded projects (general 
conformity). State conformity revisions must be consistent with Federal 
conformity regulations relating to consultation, enforcement and 
enforceability that the CAA required the EPA to promulgate.
    EPA believes it is reasonable to interpret the conformity SIP 
requirements as not applying for purposes of evaluating the 
redesignation request under section 107(d) because state conformity 
rules are still required after redesignation and Federal conformity 
rules apply where state rules have not been approved. See, Wall v. EPA, 
265 F.3d 426 (6th Cir. 2001) (upholding this interpretation). See also, 
60 FR 62748 (December 7, 1995, Tampa, Florida).
    NSR Requirements. EPA has also determined that areas being 
redesignated need not comply with the requirement that a NSR program be 
approved prior to redesignation, provided that the area demonstrates 
maintenance of the standard without a part D NSR program in effect, 
since PSD requirements will apply after redesignation. The rationale 
for this view is described in a memorandum from Mary Nichols, Assistant 
Administrator for Air and Radiation, dated October 14, 1994, entitled 
``Part D New Source Review (Part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment.'' Texas has demonstrated that 
BPA will be able to maintain the standard without a part D NSR program 
in effect, and therefore, Texas need not have a fully approved part D 
NSR program prior to approval of the redesignation request. Texas's PSD 
program will become effective in BPA upon redesignation to attainment 
(unless a rule change is necessary; see footnote 2). See, rulemakings 
for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-
Akron-Lorrain, Ohio (61 FR 20458, 20469-70, May 7, 1996); Louisville, 
Kentucky (66 FR 53665, October 23, 2001); Grand Rapids, Michigan (61 FR 
31834-31837, June 21, 1996).
    Section 182(a)(1) Inventory requirements. The marginal requirements 
at section 182(a) and 40 CFR 51.915 require that the BPA 8-hour ozone 
area meet the emissions inventory requirements of section 182(a)(1). An 
emissions inventory is an estimation of actual emissions of air 
pollutants in an area. The emissions inventory consists of VOC and 
NOX emissions, as they are ozone precursors.
    The State submitted a base year emissions inventory on December 18, 
2008 to EPA as part of the SIP revision for the BPA area. Texas 
prepared a comprehensive emissions inventory for the BPA for the 
baseline year of 2002. The 2002 base year emissions inventory includes 
all point, area, nonroad mobile, and on-road mobile source emissions. 
Table 4 lists the 2002 emissions inventory for the BPA area. EPA 
reviewed the 2002 base year inventory and determined that it was 
developed in accordance with EPA guidelines. For a full discussion of 
our evaluation, please refer to Part I.B. of the TSD, found in the 
electronic docket.

                Table 4--BPA Base Year Emission Inventory
                               [Tons/day]
------------------------------------------------------------------------
                        2002 Base year inventory
-------------------------------------------------------------------------
                     Source type                         NOX       VOC
------------------------------------------------------------------------
Point...............................................    109.23     43.81
Area................................................      7.54     50.11
On-road Mobile......................................     45.84     13.32
Non-road Mobile.....................................     48.99     13.85
                                                     -------------------
  Total.............................................    211.60    121.09
------------------------------------------------------------------------

    EPA is proposing to approve the 2002 Base Year Emissions Inventory 
submitted by the State on December 18, 2008 as part of the Texas SIP 
for the BPA area. With the approval of the 2002 base year emissions 
inventory, it is EPA's position that the BPA area will meet all of the 
requirements for a marginal nonattainment area under the 1997 8-hour 
ozone standard.
    Listed below are the other marginal area requirements that have 
already been met by the BPA area. For further information, please see 
Part II.A. of the TSD.
    Section 182(a)(2)(A) RACT corrections. EPA approved the Texas RACT 
correction rules on March 7, 1995 at 60 FR 12438.
    Section 182(a)(2)(B) I/M Program. There is no requirement for the 
BPA area to have an I/M program. The Federal I/M Flexibility Amendments 
of 1995 determined that urbanized areas with populations less than 
200,000 for 1990 (such as BPA) are not mandated to participate in the 
I/M program (60 FR 48033, September 18, 1995).
    Section 182(a)(2)(C) Permit programs and 182(a)(4) General Offset 
requirement. As noted previously, EPA has determined that areas being 
redesignated need not comply with the requirement that a NSR program be 
approved prior to redesignation, provided that the area demonstrates 
maintenance of the standard without a part D NSR program in effect, 
since PSD requirements will apply after redesignation.
    Section 181(a)(3)(B) Emissions Statements. The emissions statement 
rules were approved on August 26, 1994 (59 FR 44036).
    Thus, EPA proposes to find that the area has an approved SIP for 
all the 1997 8-hour ozone requirements applicable for purposes of 
redesignation, with the exception of the 2002 Base Year Emissions 
Inventory. EPA is proposing to find that, upon EPA's final approval of 
the BPA emissions inventory, the BPA area will meet all requirements 
applicable to the area for purposes of redesignation under section 110 
and part D and have a fully approved applicable implementation plan for 
the area under section 110(k).

C. Does the BPA area have a fully approved applicable SIP under section 
110(k) of the CAA for purposes of redesignation?

    With the exceptions noted above for the 1-hour ozone CFV program 
and the 8-hour emissions inventory, EPA has fully approved the 
applicable Texas SIP for the BPA area, under section 110(k) of the CAA 
for all requirements applicable for purposes of redesignation. EPA may 
rely on prior SIP approvals in approving a redesignation request; see 
Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth Alliance 
v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998); Wall, 265 F.3d 426, 
plus any additional measures it may approve in conjunction with a 
redesignation action. See, 68 FR 25426 (May 12, 2003) and citations 
therein. Following passage of the CAA of 1970, Texas adopted and

[[Page 27526]]

submitted, and EPA fully approved at various times, provisions 
addressing the various 1-hour ozone standard SIP elements applicable in 
the BPA area (e.g., 74 FR 33146, 71 FR 8962, 66 FR 26914, 63 FR 6659, 
60 FR 12438).
    As indicated above, EPA believes that the section 110 elements not 
connected with nonattainment plan submissions and not linked to the 
area's nonattainment status are not applicable requirements for 
purposes of redesignation. EPA also believes that since the moderate 
area part D requirements applicable for purposes of redesignation did 
not become due prior to submission of the redesignation request, they 
also are therefore not applicable requirements for purposes of 
redesignation. As set forth above, with the two exceptions noted, the 
area has met all other applicable requirements for purposes of 
redesignation under its prior marginal classification. Once EPA has 
finalized approvals of the 1-hour CFV program Equivalency 
Demonstrations and the 8-hour base year inventory, the area will have 
met all applicable requirements for purposes of redesignation for the 
8-hour ozone standard.

VII. Are the air quality improvements in the BPA area due to permanent 
and enforceable emissions reductions?

    EPA proposes to find that Texas has demonstrated that the observed 
ozone air quality improvement in the BPA area is due to permanent and 
enforceable reductions in emissions resulting from implementation of 
the SIP, Federal measures, and other State-adopted measures.
    In making this demonstration, the State presented several sets of 
data. First, the State provided a 2002 Periodic Emissions Inventory 
(PEI) for NOX and VOC in the BPA area, and provided a 
comparison between the 2002 PEI and the 2005 Base EI. Second, the State 
analyzed the changes in VOC and NOX emissions in the BPA 
area between the ozone standard violation year 2002 and one of the 
years in the period during which the area attained the standard, 2005. 
Finally, the State documented the VOC and NOX emission 
control measures that have been implemented in the BPA area over the 
past 17 years.

A. Emissions Reductions as Shown by Emissions Inventory Data

    Texas chose 2005 as the base attainment year, and compared 2002 VOC 
and NOX emissions when the DV was 90 ppb, to the attainment 
year emissions, to show that emission reductions have occurred in the 
area, and have resulted in the ozone air quality improvement in the 
area. 2005 is the first year of the first three-year period 
demonstrating attainment. By 2005, NOX emissions were 
estimated to have dropped by almost 30% and VOC emissions by 15% from 
2002 levels. These significant decreases resulted in the improvement in 
ozone levels seen at the monitors.
    The emissions for both years were derived from periodic VOC and 
NOX emission inventories, which are prepared every three 
years. Based on the estimated emissions, TCEQ has documented several 
emission trends to show that permanent and enforceable emission 
controls in various source sectors are responsible for significant 
downward trends in VOC and NOX emission totals in the BPA 
area. For a discussion of emission inventory preparation methods, see 
the discussion of the preparation of the 2005 base year emission 
inventories below.
    To demonstrate that VOC and NOX emissions decreased 
between one of the violation years (2002) and an attainment year 
(2005), TCEQ has documented BPA's VOC and NOX emissions for 
2002 and 2005 for all anthropogenic source sectors. Table 5 lists these 
emissions for the 2002 PEI and 2005 EI. Due to improved reporting and 
estimating techniques, flash emissions are better captured in the 2005 
inventory. To compare values that are alike, VOC area source emissions 
for 2005 in Table 5 do not include flash emissions from upstream oil 
and gas production.

Table 5--A Comparison of VOC and NOX Emissions in the BPA Area by Source
             Category From the 2002 PEI and the 2005 Base EI
                   [Tons per average ozone season day]
------------------------------------------------------------------------
              Emissions source category                 2002      2005
------------------------------------------------------------------------
                           VOC Emissions (tpd)
------------------------------------------------------------------------
Area................................................     50.11   * 42.59
Non-Road Mobile.....................................     13.85      4.96
On-Road Mobile......................................     13.32     11.63
Point...............................................     43.81     42.68
                                                     -------------------
  Total.............................................    121.09    101.86
------------------------------------------------------------------------
                           NOX Emissions (tpd)
------------------------------------------------------------------------
Area................................................      7.54      9.06
Non-Road Mobile.....................................     48.99     25.99
On-Road Mobile......................................     45.84     45.60
Point...............................................    109.23     68.49
                                                     -------------------
Total...............................................    211.60    149.14
------------------------------------------------------------------------
* This figure represents the 2005 base inventory for area sources used
  in the maintenance plan not including flash emissions from upstream
  oil and gas production.

    This comparison of emissions in the BPA area shows that 
NOX emissions significantly declined between 2002 and 2005. 
In addition, VOC emissions in the BPA area also declined between 2002 
and 2005. TCEQ has included this information as part of its 
demonstration that emissions reductions in the BPA area, for both 
NOX and VOC between 2002 and 2005, explain the observed 
improvement in ozone concentrations. Further, the reductions between 
2002 and 2005 can be attributed to permanent and enforceable 
reductions.
    The most significant reductions documented in Table 5 were the 
reductions in Point Source NOX. In 2000, Texas adopted 
additional NOX control rules to further reduce 
NOX emissions from electric utility power boilers 
(approximately 50% reduction) and from industrial boilers and process 
heaters (approximately 20 percent reduction). These reductions occurred 
in two stages, with two-thirds of the reductions occurring by May 1, 
2003, and the remaining one-third by May 1, 2005. Federal emission 
control measures for on and off road emissions also have had 
significant impacts on VOC and NOX emissions in the BPA 
area.
    Based on the 2002 and 2005 nonattainment area emissions information 
provided by TCEQ, EPA concludes that VOC and NOX emission 
totals have significantly declined in the nonattainment area during the 
2002-2005 period. These emission reductions have contributed to 
attainment of the 1997 eight-hour ozone standard in this area. EPA 
concurs with Texas' conclusions that the emission controls, emissions 
inventories, and emissions trends support the conclusion that 
attainment in the area is due to permanent and enforceable emission 
reductions.
    To further demonstrate that permanent and enforceable emission 
controls have reduced VOC and NOX emissions, TCEQ also 
documented the trends in NOX and VOC concentrations

[[Page 27527]]

in the BPA area, which is discussed in greater detail below.

B. Impact of Emissions Controls Implementation: Trend Analysis

    To assess the impact of emission control implementation, TCEQ 
determined the VOC and NOX ambient concentration trends at 
two monitors in the BPA area from 1991 to 2007. This included 
determining or projecting the VOC emissions for all seventeen years in 
this time period. NOX trends during this period, for both 
monitors provided by TCEQ in the analysis, Beaumont (CAMS 2) and West 
Orange (CAMS 9), showed that the 95th percentile of concentrations 
decreased at both monitors, and that the average NOX 
concentration remained relatively flat at Beaumont (CAMS 2) but has 
decreased at West Orange (CAMS 9). For VOC trends in the BPA area, 
since TCEQ's VOC data was limited, TCEQ included data provided by the 
SETRPC that show that average concentrations for both ethylene and 
propylene have decreased in the BPA area. The reduction in emissions 
and the corresponding improvement in ozone air quality over the 
assessed period can be attributed to the implementation of a number of 
emission control measures identified in the first part of this section 
above.

C. Permanent and Enforceable Emissions Controls Implemented

    The following is a discussion of the permanent and enforceable 
emission controls that have been implemented in the BPA area. In Texas' 
8-hour ozone redesignation request, the State documented all of the 
emission control rules or programs that have impacted VOC or 
NOX emissions during the period 1991-2007.
1. Reasonably Available Control Techniques
    Texas notes that a number of VOC and NOX RACT rules 
developed in prior years have continued to provide additional VOC and 
NOX emission reductions during the more recent years. For 
VOC controls, with the exception of the source categories covered by 
the most recently published CTGs (see a discussion of the new CTG RACT 
source categories below), Texas has adopted and implemented VOC RACT 
rules for source categories covered by older (prior to 2006) CTGs and 
for major non-CTG sources in Hardin, Jefferson and Orange Counties. All 
VOC RACT rules are contained in Chapter 115 of volume 30 of the Texas 
Administrative Code (30 TAC 115), and all NOX RACT rules are 
contained in Chapter 117 of volume 30 of the TAC (30 TAC 117). All of 
these VOC and NOX RACT rules have been approved by the EPA 
as revisions of the Texas SIP.
2. ROP Plans and Attainment Demonstration Plan
    TCEQ states that the BPA are has met all of the one-hour ozone SIP 
obligations, including implementation of the VOC and NOX 
emission control programs and rules needed to comply with Texas' one-
hour ozone attainment demonstration for the BPA area and implementation 
of all emission control measures contained in the various ROP plans 
applicable to Hardin, Jefferson and Orange Counties. EPA approved the 
15% ROP Plan on February 10, 1998 (63 FR 6659). EPA approved the Post-
1996 VOC and NOX ROP Plan on February 22, 2006 (71 FR 8962). 
The Post-1996 ROP Plan provided 27 percent reductions.
3. NOX Control Rules
    TCEQ developed NOX emission control rules for electric 
industrial boilers, industrial boilers and process heaters, gas 
turbines, rich-burn stationary gas-fired internal combustion engines, 
nitric acid plants, and adipic acid plants in compliance with the CAA. 
These rules were adopted in 1993. Emission reductions resulted from 
these rules beginning in 1999.
    TCEQ also adopted VOC rules for batch process and industrial 
wastewater sources and NOX rules for lean-burn engines. 
These rules were adopted in 1999, with emissions reductions resulting 
from these rules beginning in 2001.
    In 2000, Texas adopted additional NOX control rules to 
further reduce NOX emissions from electric utility power 
boilers (approximately 50% reduction) and from industrial boilers and 
process heaters (approximately 20 percent reduction). These reductions 
occurred in two stages, with two-thirds of the reductions occurring by 
May 1, 2003, and the remaining one-third by May 1, 2005.
4. Federal Emission Control Measures
    TCEQ notes that other Federal emission control measures have had 
significant impacts on VOC and NOX emissions in the BPA 
area. These Federal measures include the following.
    Tier 2 Emission Standards for Vehicles and Gasoline Sulfur 
Standards. These emission control requirements result in lower VOC and 
NOX emissions from new cars and light duty trucks, including 
sport utility vehicles. The Federal rules were phased in between 2004 
and 2009. The EPA has estimated that, by the end of the phase-in 
period, the following vehicle NOX emission reductions will 
occur nationwide: Passenger cars (light duty vehicles) (77 percent); 
light duty trucks, minivans, and sports utility vehicles (86 percent); 
and, larger sports utility vehicles, vans, and heavier trucks (69 to 95 
percent). VOC emission reductions are expected to range from 12 to 18 
percent, depending on vehicle class, over the same period. Although 
some of the emission reductions occurred by the attainment years (2005-
2007) in the BPA area, additional emission reductions will occur during 
the maintenance period. For example, note that the Tier 2 emission 
standards for passenger vehicles weighing over 8,500 pounds were not 
implemented until 2008 or later.
    Heavy-Duty Diesel Engine Rule. EPA issued this rule in 2000 
(October 6, 2000, 65 FR 59895; Updated Emissions Standards for 2004 and 
Later Model Year Highway Heavy Duty Engines and Vehicles). This rule 
includes standards limiting the sulfur content of diesel fuel, which 
went into effect in 2004. A second phase took effect in 2007, which 
further reduced the highway diesel fuel sulfur content to 15 parts per 
million, leading to additional reductions in combustion NOX 
and VOC emissions (January 18, 2001, 66 FR 5001; Heavy Duty Engine and 
Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements). 
This rule is expected to achieve a 95 percent reduction in 
NOX emissions from diesel trucks and busses.
    Non-Road Diesel Rule. EPA issued this rule in 2004. This rule 
applies to diesel engines used in industries, such as construction, 
agriculture, and mining. It is estimated that compliance with this rule 
will cut NOX emissions from non-road diesel engines by up to 
90 percent. This rule is currently achieving emission reductions, but 
will not be fully implemented until 2010.
    Locomotives and Marine Compression-Ignition Engines. This EPA rule 
was issued March 14, 2008 and includes new emission standards for 
locomotives and marine diesel engines that will reduce NOX 
emissions by about 80 percent compared with engines meeting the current 
standards. These new requirements have three parts: Tightening emission 
standards for existing locomotives and large marine engines when they 
are remanufactured, effective in 2008; establishing Tier III standards 
for new locomotives and marine diesel engines that were phased in 
beginning in 2009; and establishing more stringent Tier IV standards 
for new locomotives and marine diesel engines that will be phased in 
beginning in 2014.

[[Page 27528]]

    Additional Federal programs. Additional federal programs for 
emissions reductions in the BPA area include Onboard Refueling Vapor 
Recover (ORVR) for light-duty vehicles, and Federal control through 
Maximum Achievable Control Technology (MACT) of Hazardous Air 
Pollutants emissions. Table 6 shows the federal emissions reductions 
programs in the BPA area for fuels and motor vehicles:

            Table 6--BPA Federal Emission Reductions Programs
------------------------------------------------------------------------
                            Federal measures
-------------------------------------------------------------------------
[cir] Tier 2 Fuel and Vehicle Emission Standards.
[cir] Onboard Refueling Vapor Recovery (ORVR) for light-duty vehicles.
[cir] Heavy-Duty Engine and Vehicle and Fuel Standards.
[cir] Federal controls on certain nonroad engines.
[cir] Federal control through Maximum Achievable Control Technology
 (MACT) of Hazardous Air Pollutants emissions.
[cir] Volatile Organic Compound Emission Standards for Consumer
 Products.
[cir] Volatile Organic Compound Emission Standards for Architectural
 Coatings.
[cir] Locomotives and Marine Compression-Ignition Engines.
------------------------------------------------------------------------

5. Additional State and Local Emission Reductions
    Several local permanent and enforceable emission reductions have 
occurred through various mechanisms other than through RACT rules or 
through Federal emission control rules/programs. These State and Local 
measures, which are permanent and enforceable, include the following.
    Texas Low Emission Diesel (TxLED) rule. Texas' TxLED rule reduces 
emissions of NOX and other pollutants from diesel-powered 
motor vehicles and non-road equipment operating within 110 counties in 
the eastern half of Texas, including the BPA area. This rule was 
originally adopted by TCEQ in 2000 and revised in 2007, with compliance 
occurring over a range of years, beginning in 2005, and continuing 
through the beginning of 2008.
    Texas Emission Reduction Plan (TERP). TERP, established in 2001, 
includes incentive grant programs to reduce NOX emissions 
from internal combustion engines on mobile sources. Eligible grant 
projects include fleet expansions with cleaner engines, replacement of 
old vehicles and equipment, repower of old engines, and on-vehicle and 
on-site infrastructure for idle reduction, electrification, and deliver 
of alternative fuels. TCEQ explains in its submittal that, as of 
September 2007, the TERP program has awarded over $19 million for 58 
projects in the BPA area, which are estimated to reduce NOX 
emissions by more than 2.7 tons per day by 2009. In the BPA area, the 
projects funded thus far have resulted in NOX reductions of 
4,480 tons.
    Agreed Orders. Although not relied upon by the State for showing 
attainment or RFP, Agreed Orders have also been important in reducing 
NOX and VOC emissions in the BPA area. In December 2004, 
TCEQ adopted revisions to the BPA SIP to incorporate Agreed Orders in 
which six companies in the BPA area agreed to make enforceable measures 
that were not required. The six companies were ISP Elastomers; Mobil 
Chemical Company, a Division of Exxon Mobil Corporation; Huntsman 
Petrochemical Corp. of Port Arthur and also of Port Neches; Motiva 
Enterprises LLC; and Premcor Refining Group, Inc. The Agreed Orders 
included voluntary emissions reductions, air monitoring improvements, 
and other actions.
    Table 7 shows the state and local emissions reductions programs in 
the BPA area.

        Table 7--BPA State and Local Emission Reductions Programs
------------------------------------------------------------------------
                        State and local measures
-------------------------------------------------------------------------
[cir] Texas Low Emission Diesel (TxLED).
[cir] Texas Emission Reduction Plan (TERP).
[cir] Prevention of Significant Deterioration.
[cir] Agreed Orders.
------------------------------------------------------------------------

6. Controls To Remain In Effect
    Texas commits to maintain all of the current emission control 
measures for VOC and NOX after the BPA area is redesignated 
to attainment. Texas, through TCEQ's Chief Engineer's Office, Air 
Quality Division, and the Office of Compliance and Enforcement, has the 
legal authority and necessary resources to actively enforce against any 
violations of the State's air pollution emission control rules. After 
the BPA area is redesignated to attainment, TCEQ will implement NSR for 
major stationary sources and major modifications through the PSD 
program.

Summary.

    As discussed above, local controls as well as national emission 
controls have contributed to the ozone air quality improvement in the 
BPA area. NOX and VOC emissions have dropped substantially. 
Based on the above, EPA proposes to determine that Hardin, Jefferson, 
and Orange Counties and the State of Texas have met the requirement of 
section 107(d)(3)(E)(iii) of the CAA, and have demonstrated that the 
improvement in air quality is due to permanent and enforceable emission 
reductions.
    As noted above, Texas has committed to retaining all existing 
emission control measures that affect ozone levels in the BPA area 
after Hardin, Jefferson, and Orange Counties are redesignated to 
attainment of the 1997 eight-hour ozone NAAQS. All changes in existing 
rules subsequently determined to be necessary must be submitted to the 
EPA for approval as SIP revisions.
    EPA thus proposes to find that the improvement in air quality in 
the BPA area is due to permanent and enforceable emissions reductions. 
Section 107(d)(3)(E)(iii).

VIII. Does Texas have a fully approvable 1997 8-hour ozone maintenance 
plan pursuant to section 175A of the CAA for the BPA area?

A. What is required in an ozone maintenance plan?

    In conjunction with its request to redesignate the BPA 1997 8-hour 
ozone nonattainment area, the State of Texas included a SIP revision to 
provide for the maintenance of the 1997 8-hour ozone NAAQS in the BPA 
area for at least 10 years after redesignation to attainment. Section 
107(d)(3)(E)(iv). Section 175A of the CAA sets forth the required 
elements of air quality maintenance plans for areas seeking 
redesignation to attainment of a NAAQS. Under section 175A, a 
maintenance plan must demonstrate continued attainment of the 
applicable NAAQS for at least 10 years after the Administrator approves 
the redesignation to attainment. The State must commit to submit a 
revised maintenance plan within eight years after the redesignation. 
This revised maintenance plan must provide for maintenance of the ozone 
standard for an additional 10 years beyond the initial 10 year 
maintenance period. To address the possibility of future NAAQS 
violations, the maintenance plans must contain contingency measures, 
with schedules of implementation, as EPA deems necessary, to assure 
prompt correction of any future NAAQS violation. The September 4, 1992, 
Calcagni memorandum provides additional guidance on the content of 
maintenance plans.
    An ozone maintenance plan should, at minimum, address the 
following: (1) The attainment VOC and NOX emission 
inventories; (2) a maintenance demonstration showing maintenance for 
the 10 years of the maintenance period;

[[Page 27529]]

(3) a commitment to maintain the existing monitoring network; (4) 
factors and procedures to be used for verification of continued 
attainment; and, (5) a contingency plan to prevent and/or correct a 
future violation of the NAAQS.

B. How did Texas estimate the VOC and NOX emissions for the 
attainment year and the projection years?

    Sections 172(c)(3) and 182(b)(1) of the CAA require that the SIP 
include an inventory of actual emissions from all sources of relevant 
pollutants in the nonattainment area. The emission inventory for an 
ozone nonattainment area contains VOC and NOX emissions as 
these pollutants are precursors to ozone formation. TCEQ prepared a 
comprehensive emission inventory for the BPA area including point, 
area, on-road, and off-road mobile sources with the baseline year of 
2005.
    Texas developed its baseline 2005 Emissions Inventory by updating 
the 2002 Periodic Emissions Inventory (PEI) for NOX and VOC 
in the BPA area. TCEQ initially submitted the 2002 PEI to EPA as part 
of the 2005 Dallas-Fort Worth 5% increment of progress SIP revision, 
but did not provide for public comment. Since then, Texas updated the 
inventory for area and nonroad emissions categories and provided the 
inventory for public comment. The emissions inventory for 2005 was 
included by Texas in its submittal to EPA on December 16, 2008, as part 
of its request to redesignate the BPA to attainment for the 1997 8-hour 
ozone NAAQS.
    Texas' 2005 emissions inventory is listed in tables 2.5 and 2.6 of 
Texas' December 18, 2008, submittal, which is included in the docket 
for this action. The year 2005 was chosen by Texas as the base year for 
developing a comprehensive ozone precursor emissions inventory for 
which projected emissions could be estimated for 2011, 2014, 2017, and 
2021. The use of 2005 is an appropriate choice because it is one of the 
years in the period that the area has monitored attainment (2005-2007). 
The 2005 base year and projected year emissions for Hardin, Jefferson 
and Orange Counties were determined using the following procedures:
    Area Source Emissions. Area source emissions for the base year 2005 
were determined using Texas' 2005 periodic inventory as the starting 
point, and then specific inventory categories and emissions were 
reviewed and updated with current methodologies and local activity data 
when it was available. TCEQ compiled the 2005 area source emissions 
inventory from several sources of data, including work from various 
research contracts, TCEQ's research, and the EPA's National Emissions 
Inventory. Area source emissions for future years were projected using 
EPA's Economic Growth Analysis (EGAS) 5.0 or other growth factors, in 
accordance with EPA guidance. More information about calculations 
related to area source emissions is available in Chapter 4 and Appendix 
B of Texas' December 16, 2008 submittal, which is included in the 
docket.
    Point Source Emissions. Point source VOC and NOX 
emissions for the base year 2005 were compiled from Texas' annual 
emission database, which is called the ``State of Texas Air Reporting 
System'' (STARS). TCEQ projected point source emissions for future 
years by applying projection factors, where applicable, for EGU and 
non-EGU point sources, incorporating adjustments for three refineries, 
which were permitted to expand operations, as well as making 
adjustments for emissions credits. More information about calculations 
related to point sources is available in Chapter 4 and Appendix E of 
Texas' December 16, 2008 submittal which is included in the docket.
    On-road Emissions. Mobile source emissions were calculated by a 
contractor to TCEQ, the Texas Transportation Institute (TTI), an 
objective transportation research entity within the Texas A&M 
University system, using EPA's MOBILE 6.2.03 emission factor model and 
traffic data taken from a travel-demand model for the three-county BPA 
area. TCEQ has provided detailed information to document the 
calculation of on-road mobile source VOC and NOX emissions 
for 2005, as well as for the projection years of 2011, 2014, 2017, and 
2021 (Chapter 4 and Appendices C and D of TCEQ's December 18, 2008 
submittal.)
    Non-road Emissions. For the majority of non-road types of 
equipments, TCEQ estimated emissions for the 2005 base year and 2011 
using a model developed by TCEQ called TexN that utilizes EPA's NONROAD 
MODEL 2005 using county specific activity data. Since TexN could only 
provide projections to 2013, TCEQ developed non-road emissions 
projections for 2014, 2017, and 2021 using EPA's National Mobile 
Inventory Model (NMIM). For aircraft, locomotives, and commercial 
marine vessels, TCEQ estimated VOC and NOX emissions using 
growth factors specific to those industries. More information about 
calculations related to non-road sources is available in Chapter 4 and 
Appendix B of Texas' December 16, 2008 submittal, which is included in 
the docket.

C. Has the State demonstrated maintenance of the ozone standard in the 
BPA area?

    As part of its request to redesignate the BPA 8-hour ozone 
nonattainment area, the State of Texas included a SIP revision to 
incorporate a maintenance plan as required under section 175A of the 
CAA. The maintenance plan includes a demonstration based on a 
comparison of emissions in the attainment year (2005) and projected 
emissions to demonstrate maintenance of the 1997 8-hour ozone NAAQS in 
the BPA area for at least 10 years after the anticipated redesignation 
year [section 107(d)(3)(E)(iv)]. To demonstrate maintenance of the 1997 
8-hour ozone standard, TCEQ projected VOC and NOX emissions 
to 2021 and to several interim years, 2014, and 2017. These emissions 
were compared to the 2005 attainment year emissions to show that 
emissions of NOX and VOC, when considered together, remain 
below the attainment levels for the entire demonstrated maintenance 
period.
    In the December 18, 2008, ozone redesignation request, TCEQ 
graphically represented and compared the VOC and NOX 
emissions for 2005, 2011, 2014, 2017 and 2021 for all major source 
sectors, and in total for the BPA nonattainment area. In its ozone 
maintenance demonstration, TCEQ presented the NOX and VOC 
emission totals for the 2005 base year and all projection years for the 
BPA area without the impacts of CAIR.\3\ TCEQ's maintenance 
demonstration shows that in 2011, 2014, 2017, and 2021 (without the 
impacts of CAIR rules), VOC and NOX emission totals for the 
BPA area, when considered together, are projected to be below the 2005 
VOC and NOX emissions for the area.
---------------------------------------------------------------------------

    \3\ The U.S. Court of Appeals, for the District of Columbia 
Circuit has remanded CAIR without vacatur, directing EPA to revise 
the CAIR rule. This leaves the current version of the CAIR rule in 
question and raises questions about the future emission impacts of 
States' CAIR-based emission control rules. As a conservative 
approach to this problem, EPA requested that TCEQ remove the impacts 
of the State's CAIR NOX emission control rules. TCEQ 
complied, and by the time of the December 18, 2008, submittal had 
removed all emissions impacts due to CAIR in its projections.
---------------------------------------------------------------------------

    NOX emissions in the BPA area are projected to decline 
by 14 percent between 2005 and 2021. Note that the projected 
NOX emission reduction for 2020 did not include 
NOX emission reductions resulting from CAIR, but did include 
NOX emission reductions resulting from Texas' existing 
NOX emission control rules that are in the

[[Page 27530]]

Texas SIP. VOC emissions in the BPA area are projected to increase by 
approximately 6 percent between 2005 and 2021. However, based on 
photochemical modeling analyses showing that the formation of ozone in 
the BPA area is more sensitive to NOX than to VOC emissions, 
the increase in VOC emissions is expected to be fully offset by the 
decrease in NOX. Specifically, photochemical modeling 
analyses show that for reducing the ozone design value in the BPA area, 
reducing NOX emissions is 3.76 times as effective as 
reducing VOC emissions. This is discussed more fully below. Based on 
this analysis, emissions in the BPA area are expected to remain at 
levels consistent with attainment for the 1998 8-hour ozone standard 
from 2010 through 2021.
    The December 23, 2008, remand of EPA's CAIR by the U.S. Court of 
Appeals led to both the State and EPA further considering the impact of 
this remand on Texas' ozone maintenance demonstration for the BPA area. 
The CAIR was remanded to EPA, and the process of developing a 
replacement rule is ongoing. The remand of CAIR does not alter the 
requirements of the NOX SIP call. Although Texas is not 
subject to the NOX SIP call, Texas, however, has 
demonstrated that the BPA area can maintain the 1997 eight-hour ozone 
standard without any additional NOX emission reduction 
requirements. Regarding the impact of pollution from other States, all 
NOX SIP Call states have SIPs that currently satisfy their 
obligations under the SIP Call, the SIP Call reduction requirements 
remain applicable and are being met, and EPA will continue to enforce 
the requirements of the NOX SIP Call even after any response 
to the CAIR Remand. As EPA has noted in other recent redesignation 
actions (e.g., Columbus Ohio, 74 FR 47404, 47405 (September 15, 2009)) 
``EPA believes that regardless of the status of the CAIR program, the 
NOX SIP call requirements can be relied upon in 
demonstrating maintenance.'' Therefore, EPA believes that Texas' 
demonstration of maintenance under sections 175A and 107(d)(3)(E) of 
the CAA remains valid.
    Texas has successfully demonstrated maintenance of the 1997 8-hour 
ozone standard between 2005 and 2021. In addition, VOC and 
NOX emissions in the BPA area, when considered together with 
Texas' photochemical modeling analyses, are projected to decline 
between 2005 and 2021. Given the emissions growth and source control 
factors used to project emissions, EPA and Texas do not anticipate an 
increase in the overall combined VOC and NOX emissions in 
the BPA area between 2010 and 2021.
    The following table provides NOX and VOC emissions data 
for the 2005 base year inventory, as well as projected NOX 
and VOC emission inventory data for the years 2011, 2014, 2017, and 
2021 for the BPA area. Please see Part II.B. of the TSD for additional 
emissions inventory data including projections by source category.

               Table 8--Base Year and Projected NOX and VOC Emissions in BPA, NOX Emissions (tpd)
                                                 [Without CAIR]
----------------------------------------------------------------------------------------------------------------
         Source category               2005            2011            2014            2017            2021
----------------------------------------------------------------------------------------------------------------
Point...........................           68.49           77.39           78.84           78.67           80.27
Area............................            9.06            9.95           10.40           10.86           11.47
Mobile..........................           45.60           17.91           12.38            8.66            6.24
Nonroad.........................           25.99           27.08           27.88           28.87           30.63
                                 -------------------------------------------------------------------------------
    Total.......................          149.14          132.33          129.50          127.06          128.61
----------------------------------------------------------------------------------------------------------------
                                       VOC Emissions (TPD) [Without CAIR]
----------------------------------------------------------------------------------------------------------------
Point...........................           42.68           48.23           49.77           51.44           53.80
Area............................          151.57          155.77          157.06          158.63          160.77
Mobile *........................           11.63            7.92            6.51            5.58            4.77
Nonroad **......................            4.96            4.36            4.23            4.20            4.30
                                 -------------------------------------------------------------------------------
    Total.......................          210.84          216.28          217.57          219.85          223.64
----------------------------------------------------------------------------------------------------------------
* Calculated using MOBILE 6.2.03.
** Calculated using NONROAD 2005.

    As shown in Table 8 above, total NOX emissions are 
projected to decrease and total VOC emissions are projected to increase 
slightly for the area of the 10-year period of the maintenance plan. 
Emissions projections for future years in the area indicate a downward 
trend in NOX emissions through 2021 as NOX 
emissions are projected to decrease by 20.53 tpd, or approximately 14% 
(from 149.14 tpd to 128.61 tpd). VOC emissions projections through 2021 
show a slight increase in projected emissions of 12.80 tpd by the year 
2021, or approximately 6% (from 210.84 tpd to 223.64 tpd). This 
projected increase (6%) is relatively small considering that it occurs 
over a period of approximately sixteen years (as from the 2005 
baseline). The slight upward trend in VOC emissions results from 
projected increases for the point and non-point (area) source emission 
categories. Emissions from non-road mobile and on-road mobile sources 
are projected to decrease.
    As mentioned above, the projected 14% reduction (20.53 tpd) in 
NOX emissions is expected to sufficiently offset the 
projected 6% increase (12.80 tpd) in VOC emissions, enabling the area 
to continue to maintain the 1997 ozone standard. Photochemical modeling 
analyses were submitted showing that reducing VOC emissions by 5.53 tpd 
results in an estimated design value reduction of 0.054 ppb. To reduce 
the ozone DV by 1 ppb, 102.4 tpd of VOC would need to be reduced. 
Reducing NOX emissions by 7.80 tpd reduces the ozone DV by 
0.287 ppb. This means that a reduction of 27.2 tpd of NOX 
emissions would be required to reduce one ppb in the DV. Thus, 
NOX emission reductions are expected to be 3.76 (102.4/27.2) 
times as effective in reducing the ozone DV as VOC emission reductions.
    EPA proposes to conclude that TCEQ has demonstrated maintenance of 
the ozone standard during the 10-plus year maintenance period for the 
BPA area through projections of VOC and NOX emissions that 
show that when

[[Page 27531]]

considered together the emissions will remain below the 2005 attainment 
levels during the maintenance period. This is demonstrated without the 
emission reductions from CAIR.

D. Monitoring Network

    The State of Texas has committed in its maintenance plan for the 
BPA area to continue operation of an appropriate ozone monitoring 
network and to work with EPA in compliance with 40 CFR Part 58 with 
regard to the continued adequacy of the network, including whether 
additional monitoring is needed, and when monitoring can be 
discontinued.
    There are five monitoring sites operated by the TCEQ in the BPA 
area, located in Jefferson and Orange Counties. TCEQ operates these 
monitors in accordance with the requirement of 40 CFR Part 58 and the 
EPA-approved Quality Assurance Program Plan.
    There are four additional monitors operated by the South East Texas 
Regional Planning Commission (SETRPC). If the SETRPC, however, removes 
one of its monitors, the EPA and Texas will jointly review the adequacy 
of the network, including whether additional monitoring is needed. In 
the maintenance plan, Texas commits to continue operation of the five 
ozone monitors it operates in compliance with 40 CFR part 58 through 
the end of the maintenance period (2021). The State also commits to 
continue to operate a monitoring network in accordance with 40 CFR part 
58 and to enter data into the Air Quality System in accordance with 
Federal guidelines. The TCEQ will continue to provide data from the 
SETRPC monitors on the Commission's Web site and in EPA's AQS database 
as long as the SETRPC participates in the network.
    As identified in the maintenance plan, each of the nine monitoring 
sites in the BPA area monitored attainment with the 1997 8-hour ozone 
standard beginning in 2005. Data for each monitoring site was shown 
above and further discussed in Section V.A. Table 1. See the docket for 
a map of the BPA monitoring network, and the TSD: Part I.A. for 
additional monitoring information.

E. Verification of Continued Attainment

    Texas has the legal authority to enforce and implement the 
requirements of the ozone maintenance plan for the BPA area. This 
includes the authority to adopt, implement, and enforce any subsequent 
emissions control contingency measures determined to be necessary to 
correct future ozone attainment problems.
    Texas will track the progress of the maintenance plan through 
continued ambient ozone monitoring in accordance with the requirements 
of 40 CFR Part 58, and by performing future reviews of actual emissions 
for the area using the latest emissions factors, models, and 
methodologies. (section 4.2 of TCEQ's BPA submittal, December 16, 
2008). For these periodic updates of the BPA emissions inventories, 
Texas will review the assumptions made for the purpose of the 
maintenance demonstration concerning projected growth and activity 
levels.

F. What is the maintenance plan's contingency plan?

    The section 175(A) maintenance plan includes contingency provisions 
to promptly correct any violation of the 1997 ozone NAAQS that occurs 
after redesignation. The contingency plan provisions are designed to 
promptly correct or prevent a violation of the NAAQS that might occur 
after redesignation of an area to attainment. Section 175A of the CAA 
requires that a maintenance plan include such contingency measures, as 
EPA deems necessary to assure that the state will promptly correct a 
violation of the NAAQS that occurs after redesignation. The maintenance 
plan should identify the contingency measures to be adopted, a schedule 
and procedure for adoption and implementation of the contingency 
measures, and a time limit for action by the state. The State should 
also identify specific indicators to be used to determine when the 
contingency measures need to be adopted and implemented. The 
maintenance plan must include a requirement that the state will 
implement all measures with respect to control of the pollutant(s) that 
were contained in the SIP before redesignation of the area to 
attainment. See section 175A(d) of the CAA.
    As required by section 175A of the CAA, Texas has adopted a 
contingency plan for the BPA area to address possible future ozone air 
quality problems.
    The contingency measure trigger for the BPA maintenance plan is 
based upon monitoring. The triggering mechanism for activation of 
contingency measures is a monitored violation of the 1997 ozone 
standard. In this maintenance plan, if contingency measures are 
triggered, TCEQ has committed to adopt and implement the measures as 
expeditiously as practicable, but no longer than 18 months following 
the trigger. In order to accomplish this, in the submittal Texas 
commits to adopt within nine months (and implement within eighteen 
months) one or more contingency measures to re-attain the standard in 
the event of a violation of the 1997 8-hour ozone NAAQS in the BPA 
area. The measures to be considered include, but are not limited to the 
following control measures:
     Revision to 30 TAC Chapter 117 to control rich-burn, gas-
fired, reciprocating internal combustion engines to meet NOX 
emission specifications and other requirements to reduce NOX 
emissions and ozone air pollution.
     Inclusion of one or more counties in the BPA area in 30 
TAC Chapter 115 VOC rules for the control of crude and condensate 
storage tanks at upstream oil and gas exploration and productions sites 
or midstream pipeline breakout stations with uncontrolled flash 
emissions greater than 25 tpy.
     Inclusion of one or more counties in the BPA area in 30 
TAC Chapter 115 VOC rules for more stringent controls for tank fittings 
on floating roof tanks, such as slotted guidepoles and other openings 
in internal and external floating roofs.
     Inclusion of one or more counties in the BPA area in 30 
TAC Chapter 115 VOC rules limiting emissions from landings of floating 
roofs in floating roof tanks.
     Inclusion of one or more counties in the BPA area in 30 
TAC Chapter 115 VOC rules for control of emissions from degassing 
operations for storage tanks with a nominal capacity of 75,000 gallons 
or more storing materials with a true vapor pressure greater than 2.6 
pounds per square inch absolute (psia), or with a nominal capacity of 
250,000 gallons or more storing materials with a true vapor pressure of 
0.5 psia or greater. Degassing vapors from storage vessels, transport 
vessels, and marine vessels would be required to vent to a control 
device until the VOC concentration of the vapors is reduced to less 
than 34,000 parts per million by volume as methane.
     Inclusion of one or more counties in the BPA area in 30 
TAC Chapter 114 rule for TxLED compliant marine diesel.
    In addition, the maintenance plan states that the BPA area may also 
be expected to voluntarily implement some additional local control 
measures.
    These contingency measures and schedules for implementation satisfy 
EPA's longstanding guidance on the requirement of section 175(A) for 
continued attainment. Continued attainment in the Beaumont Port Arthur 
area will depend, in part, on the air quality measures discussed 
previously (see VI.B. and V.B.4. above). The State will continue to 
operate appropriate

[[Page 27532]]

ambient ozone monitoring sites in the BPA area to verify continued 
attainment of the 1997 ozone NAAQS. The air monitoring results will 
reveal changes in the ambient air quality as well as assist the State 
in determining which contingency measures will be most effective if 
necessary.
    As required by section 175A(b) of the CAA, Texas commits to submit 
to the EPA an updated ozone maintenance plan eight years after 
redesignation of the BPA area to cover an additional ten-year period 
beyond the initial ten-year maintenance period. As required by section 
175A(d) of the CAA, Texas has also committed to retain VOC and 
NOX control measures contained in the SIP prior to 
redesignation.
    EPA finds that the plan adequately addresses the five basic 
components of a maintenance plan: Attainment inventory, maintenance 
demonstration, monitoring network, verification of continued 
attainment, and contingency plan. The maintenance plan SIP revision 
submitted by Texas for BPA meets the requirements of section 175A of 
the Act. Therefore, EPA is proposing to approve the maintenance plan 
for the BPA area for the 1997 8-hour ozone standard as part of the 
Texas SIP.

IX. What is EPA's evaluation of the BPA area's motor vehicle emissions 
budget?

A. What are the transportation requirements for approvable MVEBs?

    A maintenance plan must include a MVEB for transportation 
conformity purposes. ``Conformity'' to the SIP means that 
transportation activities will not cause new air quality violations, 
worsen existing violations, or delay timely attainment of the NAAQS. It 
is a process required by section 176(c) of the Act for ensuring that 
the effects of emissions from all on-road sources are consistent with 
attainment or maintenance of the standard. EPA's transportation 
conformity rules at 40 CFR part 93 require that transportation plans, 
and programs, result in emissions that do not exceed the MVEB 
established in the SIP. The maintenance plan established an MVEB for 
2021, which is the last year of the maintenance plan.
    The MVEB is the level of total allowable on-road emissions 
established by the maintenance plan. Maintenance plans must include the 
estimates of motor vehicle VOC and NOX emissions that are 
consistent with maintenance of attainment, which then act as a budget 
or ceiling for the purpose of determining whether transportation plans, 
and programs conform to the maintenance plan. In this case, the MVEB 
sets the maximum level of on-road transportation emissions that can be 
produced, when considered with emissions from all other sources, which 
demonstrates continued maintenance of attainment of the 1997 8-hour 
ozone NAAQS.

B. What is the status of EPA's adequacy determination?

    When reviewing submitted ``control strategy'' SIPs or maintenance 
plans containing a MVEB, EPA determines whether the MVEB contained 
therein is ``adequate'' for use in determining transportation 
conformity. Once EPA finds a budget adequate, the budget must be used 
by local, state and federal agencies in determining whether proposed 
transportation plans and programs ``conform'' to the SIP as required by 
section 176(c) of the Act.
    EPA's substantive criteria for determining ``adequacy'' of a MVEB 
are set out in 40 CFR 93.118(e)(4). The process for determining the 
adequacy of an MVEB was initially outlined in EPA's May 14, 1999, 
guidance, ``Conformity Guidance on Implementation of March 2, 1999, 
Conformity Court Decision.'' This guidance was finalized in the 
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards and 
Miscellaneous Revisions for Existing Areas; transportation conformity 
rule amendments--Response to Court Decision and Additional Rule 
Change,'' on July 1, 2004 (69 FR 40004). Additional information on the 
adequacy process for MVEBs is available in the proposed rule entitled, 
``Transportation Conformity Rule Amendments: Response to Court Decision 
and Additional Rule Changes,'' 68 FR 38974, 38984 (June 30, 2003).
    As discussed earlier, Texas' maintenance plan submission includes 
NOX and VOC budgets for the year 2021. EPA reviewed the 
budgets through the adequacy process. The availability of the SIP 
submission with this 2021 MVEB was announced for public comment on 
EPA's adequacy Web page on April 15, 2009, at: http://www.epa.gov/otaq/transp/conform/adequacy.htm. The EPA public comment period on the 
adequacy of the 2021 MVEB for BPA closed on May 15, 2009. EPA did not 
receive any adverse comments on the MVEB. On April 1, 2010, EPA made a 
finding of adequacy for the 2021 MVEB included in this 8-hour ozone 
maintenance plan (75 FR 16456).

C. Is the MVEB approvable?

    Table 9 shows the total projected transportation emissions for 
2021, as submitted by Texas.

                        Table 9--Beaumont/Port Arthur Projected Transportation Emissions
                                        [Tons per avg. ozone season day]
----------------------------------------------------------------------------------------------------------------
            Pollutant                  2005            2011            2014            2017            2021
----------------------------------------------------------------------------------------------------------------
NOX.............................           45.60           17.91           12.38            8.66            6.24
VOC.............................           11.63            7.92            6.51            5.58            4.77
----------------------------------------------------------------------------------------------------------------

    These transportation emissions are also represented in Table 8 of 
this notice as the ``mobile'' emissions portion of emission inventory 
data for the BPA area. As shown in Tables 8 and 9, substantial 
reductions in both NOX and VOC transportation emissions are 
projected between 2005 and 2021. Further, as previously stated in this 
action, EPA finds that the State has demonstrated the future combined 
emissions levels of NOX and VOC in 2011, 2014, 2017, and 
2021 are expected to be similar to or less than the emissions levels in 
2005. The projected transportation emissions for 2021 were used by 
Texas as the basis of the 2021 NOX and VOC MVEB for the BPA 
area. These emissions are consistent with the maintenance plan 
demonstrating continued compliance with the 1997 ozone NAAQS for the 
10-year period following redesignation to attainment.
    Under 40 CFR 93.101, the term safety margin is the amount by which 
the total projected emissions from all sources of a given pollutant are 
less than the total emissions that would satisfy the applicable 
requirement for reasonable further progress, attainment, or 
maintenance. The attainment level of emissions is the level of 
emissions

[[Page 27533]]

during one of the years in which the area met the NAAQS. The safety 
margin can be allocated to the transportation sector; however, the 
total emissions must remain below the attainment level. Emission 
projections contained in the BPA maintenance plan show the 2021 
inventory in the BPA area represents a 20.53 tpd decrease in 
NOX emissions compared with 2005 (Table 4-2), while VOC 
emissions increase by 12.80 tpd (Table 4-1). Conservatively assuming a 
1:1 ratio of NOX/VOC emissions in the formation of 
O3, the net total reduction in NOX emissions is 
7.73 tpd (Table 4-3). Texas has allocated one tpd of the NOX 
emission reduction as a safety margin, which increases the 2021 MVEB 
for NOX emissions from 6.24 tpd to 7.24 tpd. This is 
discussed in greater detail in Part II.D. of the TSD. EPA finds this to 
be an acceptable allocation.
    The submitted NOX and VOC MVEB for the BPA area is 
defined in Table 10 below.

             Table 10--Beaumont/Port Arthur NOX and VOC MVEB
                      [Summer season tons per day]
------------------------------------------------------------------------
                        Pollutant                              2021
------------------------------------------------------------------------
NOX.....................................................         \*\7.24
VOC.....................................................            4.77
------------------------------------------------------------------------
\*\Includes an allocation of 1 tpd from the available NOX safety margin.

    Through this rulemaking, EPA is proposing to approve Texas' 2021 
MVEB for VOCs and NOX for the BPA area for transportation 
conformity purposes, because EPA has determined that the area maintains 
the 1997 8-hour ozone standard with the emissions at the levels of the 
budget. The submittal has met the adequacy criteria in 40 CFR 
93.118(e)(4), and EPA has completed a comprehensive review of the 
maintenance plan, concluding that the overall plan demonstrates 
maintenance, is approvable and the budgets are consistent with the 
overall plan. Therefore, the budgets can be proposed for approval.

X. EPA's Evaluation of the Backfill Contingency Measures for the 1-Hour 
Ozone Failure-To-Attain Contingency Measures and the State's Request To 
Remove an Unimplemented VOC Rule From the Texas SIP

    EPA approved the 1-hour ozone failure-to-attain section 172(c)(9) 
and 182(c)(9) contingency measures for the BPA area on February 10, 
1998 at 63 FR 6659 as part of EPA's approval of the BPA area's 15% VOC 
ROP Plan. These contingency measures included the Federal Tier I rules, 
the Federal small engine VOC rule, and excess reductions from the 15% 
VOC ROP Plan. When EPA reclassified the BPA area to serious for the 1-
hour ozone NAAQS, these are the contingency measures that EPA 
triggered. EPA approved a marine vessel-loading rule as part of the 
Texas SIP for the BPA area on January 26, 1999 (64 FR 3841). As 
written, it appears it is triggered upon an EPA finding of failure to 
attain, but it was not included in the SIP-approved contingency plan 
for the BPA area. EPA never approved it specifically as a section 
172(c)(9) contingency measure nor did EPA approve it as a replacement 
for the 1998-approved contingency measures. In the Federal Register 
action for reclassification of the BPA area for the 1997 8-hour ozone 
standard to moderate, EPA refers specifically to the 1998-approved 1-
hour contingency measures as the ones EPA triggered to be implemented 
for failure to attain (73 FR 14391, March 18, 2008). Also in the 
reclassification Federal Register action, EPA required the State to 
submit additional contingency measures to replace, i.e., backfill, the 
triggered contingency measures for its new serious area attainment 
deadline under section 182(c)(9). The State submitted two control 
measures on October 15, 2005, as a SIP revision to replace or backfill 
the triggered contingency measures as required by the reclassification 
notice. The proposed 1-hour section 182(c)(9) contingency measures are 
emissions reductions from:
    (1) NOX and VOC reductions from three companies in the 
BPA area through Agreed Orders, and (2) NOX reductions from 
the Texas Emissions Reductions Program (TERP) projects.
    EPA approved the Agreed Orders into the SIP on April 12, 2005 (70 
FR 18995). The TERP program was approved as part of the Texas SIP on 
August 19, 2005 at 70 FR 48647 including the methodology for 
calculating SIP credits for the individual TERP control measures. TERP 
provides funding to offset the incremental costs of projects associated 
with reducing NOX emissions from high-emitting internal 
combustion engines.
    Together, reductions from these two control measures meet the 3 
percent requirement for the 1-hour backfill failure-to-attain 
contingency measures. The NOX reductions from the Agreed 
Orders and the TERP projects were not relied upon for ROP or attainment 
demonstration purposes and have already been implemented. Please see 
the TSD: Part II.E. for additional detail. EPA is proposing to approve 
the substitute control measures for the backfill failure-to-attain 
contingency measures. Although, as noted in the discussion above, the 
1-hour anti-backsliding contingency measure obligation is suspended 
upon a final determination that the area is attaining the 1-hour ozone 
standard, and terminates upon a final redesignation of the area for the 
8-hour ozone standard, EPA understands that TCEQ nonetheless wishes EPA 
to take action upon the submitted backfill measures. EPA notes that, 
after the area is redesignated to attainment for the 8-hour ozone 
NAAQS, these 1-hour contingency measures are replaced by the section 
175A Maintenance Plan contingency measures.
    Also, in this SIP revision, TCEQ submitted a request to remove from 
the Texas SIP, the ``contingency'' measure marine vessel loading rule 
(30 TAC Sec.  115.219). This Texas marine vessel rule was approved into 
the Texas SIP but was never implemented by the State. As discussed 
above, this measure was not relied upon as part of a 172(c)(9) or 
182(c)(9) contingency plans and was not triggered by the EPA as part of 
the reclassification notice.
    Texas, in its SIP revision, made clear that the marine vessel 
loading rule should not be a part of the backfill failure to attain 
contingency plan required by the reclassification and that the two 
measures used to comprise this plan were an appropriate substitute for 
the marine vessel loading rule. In fact, Texas' sensitivity tests in 
photochemical modeling runs indicate that reductions of 1 tpd of 
NOX are equivalent to reductions of 3.8 tpd of VOC in 
reducing ozone in the BPA area (TCEQ Attainment Demonstration SIP, 
received October 18, 2005, section 5.3.1, p. 5-4). The two backfill 
contingency measures are mostly NOX reductions and would be 
expected to be more effective than the Marine Vessel Loading Rule, a 
VOC control in reducing ozone.
    The SIP marine-vessel loading rule was never relied upon for 
demonstrating attainment, achieving reasonable further progress, or as 
a reasonable available control measure. It was not relied upon in the 
15% VOC ROP plan or the post-1996 ROP plan. It was not relied upon in 
any of the submitted attainment demonstration SIPs. It also is not 
required to meet VOC RACT. EPA notes that since adoption by TCEQ, 
federal rules for marine vessel loading have been adopted and achieve 
much of the reductions that would have been achieved if the State rule 
had been triggered.
    EPA has evaluated Texas' request to remove the marine vessel-
loading rule from its SIP. For the reasons cited above, whereas the 
Texas rule was never

[[Page 27534]]

implemented or triggered as a contingency measure and whereas the rule 
is not needed to satisfy any other statutory requirements, EPA proposes 
that the Texas marine vessel-loading rule be removed from the Texas 
SIP.

XI. Proposed Actions

    EPA is proposing several related actions under the Act for the BPA 
ozone nonattainment area, consisting of Hardin, Jefferson, and Orange 
counties. Consistent with the Act, EPA is proposing to determine that 
the BPA area has attained the 1997 8-hour ozone NAAQS and to approve a 
request from the state of Texas to redesignate the BPA area to 
attainment of the 1997 8-hour ozone standard. This determination is 
based on complete, quality-assured, and certified ambient air quality 
monitoring data for the 2005-2007 ozone seasons and 2006-2008 ozone 
seasons, as well as data for 2009 in AQS but not yet certified, that 
demonstrate that the 1997 8-hour ozone NAAQS has been attained in the 
area. EPA is also proposing to make a determination that the BPA area 
is meeting the 1-hour ozone standard. This determination is based on 
complete, quality-assured, and certified ambient air quality monitoring 
data for 2005-2007 ozone seasons and 2006-2008 ozone seasons, as well 
as data for 2009 in AQS but not yet certified, that demonstrate that 
the 1-hour ozone NAAQS has been attained in the area. Finalizing the 1-
hour ozone attainment determination proposal will suspend the 1-hour 
anti-backsliding requirements for a 1-hour attainment demonstration and 
RACM analysis and contingency measures. These requirements will cease 
to apply if the area is redesignated to attainment for the 1997 8-hour 
ozone standard.
    EPA is proposing to approve the 2002 base year emissions inventory. 
We are proposing to approve the State's CFV program equivalency 
demonstration. We are proposing to find that the BPA area, upon final 
approval of this emissions inventory and the CFV program equivalency 
determination, will meet all the applicable CAA requirements under 
section 110 and Part D for purposes of redesignation for the 1997 8-
hour ozone NAAQS including all the applicable antibacksliding CAA 
requirements for a serious 1-hour ozone nonattainment area. Further, 
EPA is proposing to approve into the SIP, as meeting section 175A and 
107(d)(3)(E)(iv) of the Act, Texas' maintenance plan for the BPA area 
for the 1997 8-hour ozone NAAQS. The maintenance plan shows maintenance 
of the standard through 2021. Additionally, EPA is proposing to approve 
the 2021 MVEB for NOX and VOC submitted by Texas for the BPA 
area in conjunction with its redesignation request and maintenance 
plan.
    Consequently, EPA is proposing to approve the State's request to 
redesignate the area from nonattainment to attainment for the 1997 8-
hour ozone NAAQS. After evaluating Texas' redesignation request, EPA 
has determined that upon final approval of the above-identified SIP 
elements and the maintenance plan, the area will meet the redesignation 
criteria set forth in section 107(d)(3)(E) and section 175A of the Act. 
The final approval of this redesignation request would change the 
official designation in 40 CFR part 81 for the BPA area from 
nonattainment to attainment for the 1997 8-hour ozone standard. EPA 
also notes that if EPA's proposed determinations of attainment for the 
1-hour and 8-hour ozone NAAQS are finalized, the requirements to submit 
certain planning SIPs related to attainment, including attainment 
demonstration requirements (the RACM requirement, the RFP and 
attainment demonstration requirements, and the requirement for 
contingency measures) are suspended as long as it continues to attain 
the NAAQS, and would cease to apply upon final redesignation.
    EPA also is proposing to approve the Post-1996 ROP Plan's 
contingency measures and backfill failure-to-attain contingency 
measures, and the removal from the Texas SIP under section 110(l) of a 
VOC marine vessel loading contingency measure.

XII. Statutory and Executive Order Reviews

    Under the Clean Air Act, redesignation of an area to attainment and 
the accompanying approval of a maintenance plan under section 
107(d)(3)(E) are actions that affect the status of a geographical area 
and do not impose any additional regulatory requirements on sources 
beyond those imposed by state law. A redesignation to attainment does 
not in and of itself create any new requirements, but rather results in 
the applicability of requirements contained in the Clean Air Act for 
areas that have been redesignated to attainment. Moreover, the 
Administrator is required to approve a SIP submission that complies 
with the provisions of the Act and applicable Federal regulations. 42 
U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 
EPA's role is to approve state choices, provided that they meet the 
criteria of the Clean Air Act. Accordingly, these actions merely do not 
impose additional requirements beyond those imposed by state law and 
the Clean Air Act. For that reason, these actions:
     Are not ``significant regulatory actions'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Do not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Do not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Environmental protection, Air pollution control.


[[Page 27535]]


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

    Dated: May 5, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. 2010-11694 Filed 5-14-10; 8:45 am]
BILLING CODE 6560-50-P