[Federal Register Volume 81, Number 187 (Tuesday, September 27, 2016)]
[Proposed Rules]
[Pages 66240-66243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23247]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R06-OAR-2016-0275; FRL-9952-67-Region 6]


Determination of Nonattainment and Reclassification of the 
Houston-Galveston-Brazoria 2008 8-Hour Ozone Nonattainment Area; Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
determine that the Houston-Galveston-Brazoria ozone nonattainment area 
(HGB area) failed to attain the 2008 8hour ozone national ambient air 
quality standards (NAAQS) by the applicable attainment deadline of July 
20, 2016, and thus is classified by operation of law as ``Moderate''. 
In this action, EPA is also proposing January 1, 2017 as the deadline 
by which Texas must submit to the EPA the State Implementation Plan 
(SIP) revisions that meet the CAA statutory and regulatory requirements 
that apply to 2008 ozone NAAQS nonattainment areas reclassified as 
Moderate.

DATES: Written comments must be received on or before October 27, 2016.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0275, at http://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Ms. Nevine Salem, (214) 
665-7222, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Ms. Nevine Salem, (214) 665-7222, 
[email protected].

[[Page 66241]]


SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

    In 2008 we revised the 8-hour ozone primary and secondary NAAQS to 
a level of 0.075 parts per million (ppm) annual fourth-highest daily 
maximum 8-hour average concentration, averaged over three years to 
provide increased protection of public health and the environment (73 
FR 16436, March 27, 2008). The HGB area was classified as a 
``Marginal'' ozone nonattainment area for the 2008 8-hour ozone NAAQS 
and initially given an attainment date of no later than December 31, 
2015 (77 FR 30088, May 21, 2012). The HGB area consists of Brazoria, 
Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller 
counties.
    On December 23, 2014, the D.C. Circuit issued a decision rejecting, 
among other things, our attainment deadlines for the 2008 ozone 
nonattainment areas, finding that we did not have statutory authority 
under the CAA to extend those deadlines to the end of the calendar 
year. NRDC v. EPA, 777 F.3d 456, 464-69 (D.C. Cir. 2014). Consistent 
with the court's decision we modified the attainment deadlines for all 
nonattainment areas for the 2008 ozone NAAQS, and set the attainment 
deadline for all 2008 ozone nonattainment areas, including the HGB area 
as July 20, 2015 (80 FR 12264, March 6, 2015). As the HGB area 
qualified for a 1-year extension of the attainment deadline we revised 
the attainment deadline to July 20, 2016 (81 FR 26697, May 4, 2016).
    Classifications for ozone nonattainment areas range from 
``Marginal'' (for areas with monitored ozone levels just exceeding the 
level of the NAAQS) to ``Extreme'' (for areas with monitored ozone 
levels well above the levels of the NAAQS). CAA section 182 stipulates 
the specific attainment planning and additional requirements that apply 
to each ozone nonattainment area based on its classification. CAA 
section 182, as interpreted by the EPA's implementation regulations at 
40 CFR 51.1108-1117, also establishes the timeframes by which air 
agencies must submit SIP revisions to address the applicable attainment 
planning elements, and the timeframes by which ozone nonattainment 
areas must attain the relevant NAAQS.
    CAA section 181(b)(2) requires us to (1) determine whether the HGB 
area attained the 2008 ozone NAAQS by the attainment deadline, (2) 
reclassify the HGB area if the attainment deadline is not met, and (3) 
publish a Federal Register notice within 6 months of the attainment 
deadline identifying the new classification if the area failed to 
attain by the attainment deadline. The determination of attainment is 
based on the area's ``design value'' (DV), which for the 8-hour ozone 
NAAQS is the highest 3-year average of the annual fourth highest daily 
maximum 8-hour average ozone concentration of all regulatory monitors 
in the area. The 2008 ozone NAAQS is met when the DV is less than or 
equal to 0.075 ppm based on complete, consecutive calendar years of 
certified, quality assured ambient air monitoring data (40 CFR 50.15; 
40 CFR 50, appendix P). A determination of attainment by the attainment 
deadline of July 20, 2016 is based on data from the consecutive 
calendar years of 2013-2015.

II. EPA Analysis

    Ozone air quality data from monitoring sites in the HGB area is 
presented in Table 1. This data has been quality assured and certified 
by the State of Texas. The data is available in the EPA Air Quality 
System (AQS) database and also in the electronic docket for this 
action. The Manvel monitoring site (48-039-1004) recorded the highest 
2013-2015 design value (0.080 ppm), which is also the DV for the area. 
Although the HGB air trends show overall progress in reducing ozone 
concentrations over the past 15 years, the HGB area is not eligible for 
an additional one-year attainment date extension \1\ because, at 0.078 
ppm, the average of the 2014 and 2015 \2\ annual fourth highest daily 
maximum eight-hour average ozone concentrations for the monitor in the 
area is greater than 0.075 ppm, the data for 2014-2015 indicates the 
area does not qualify for a second 1-year extension of the attainment 
deadline (40 CFR 51.1107).
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    \1\ The area would be eligible for the second 1-year extension 
if the area's 4th highest daily maximum 8-hour value, averaged over 
both the original attainment year and the first extension year, is 
at or below 0.075 ppm.
    \2\ 2014 and 2015 are the last two full years of complete air 
quality data prior to the July 20, 2016, attainment date.

         Table 1--HGB Area Fourth Highest 8-Hour Ozone Concentrations and Design Values (ppm), 2013-2015
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                                                          4th Highest daily maximum value
                Site name and No.                ------------------------------------------------  Design value
                                                       2013            2014            2015         (2013-2015)
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Garth (48-201-1017).............................           0.061           0.067           0.077           0.068
Deer Park (48-201-1039).........................           0.069           0.063           0.077           0.069
Aldine (48-201-0024)............................           0.074           0.068           0.095           0.079
Clinton Drive (48-201-1035).....................           0.067           0.058           0.084           0.069
Croquet (48-201-0051)...........................           0.079           0.067           0.079           0.075
Monroe (48-201-0062)............................           0.074           0.065           0.073           0.070
NW Harris Co. (48-201-0029).....................           0.080           0.063           0.078           0.073
Westhollow (48-201-0066)........................           0.077           0.070           0.079           0.075
Lang (48-201-0047)..............................           0.079           0.064           0.091           0.078
Wayside (48-201-0046)...........................           0.070           0.062           0.078           0.070
Houston East (48-201-1034)......................           0.069           0.066           0.088           0.074
Bayland Park (48-201-0055)......................           0.081           0.067           0.080           0.076
Seabrook (48-201-1050)..........................           0.067           0.065           0.083           0.071
Channelview (48-201-0026).......................           0.061           0.064           0.081           0.068
Lynchburg (48-201-1015).........................           0.064           0.059           0.079           0.067
Park Place (48-201-0416)........................           0.079           0.066           0.087           0.077
Galveston (48-167-1034).........................           0.064           0.071           0.084           0.073
Conroe (48-339-0078)............................           0.075           0.072           0.073           0.073
Manvel (48-039-1004)............................           0.084           0.071           0.086           0.080
Lake Jackson (48-039-1016)......................           0.067           0.061           0.065           0.064
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[[Page 66242]]

    CAA section 181(b)(2)(A) provides that a marginal nonattainment 
area shall be reclassified by operation of law upon a determination by 
the EPA that such area failed to attain the relevant NAAQS by the 
applicable attainment date. Based on quality-assured ozone monitoring 
data from 2013-2015, as shown in Table 1, the new classification 
applicable to the HGB area would be the next higher classification of 
``moderate'' under the CAA statutory scheme. Moderate nonattainment 
areas are required to attain the standard ``as expeditiously as 
practicable'' but no later than six years after the initial designation 
as nonattainment (which, in the case of the HGB area, is July 20, 
2018). The attainment deadlines associated with each classification are 
prescribed by the CAA and codified at 40 CFR 51.1103.
    In determining the deadline for the Moderate area SIP revisions, 
the EPA has discretion, per CAA section 182(i), to adjust the statutory 
deadline for submitting required SIP revisions for reclassified 
Moderate ozone nonattainment areas. CAA section 182(i) requires that 
reclassified areas meet the applicable plan submission requirements 
``according to the schedules prescribed in connection with such 
requirements, except that the Administrator may adjust any applicable 
deadlines (other than attainment dates) to the extent such adjustment 
is necessary or appropriate to assure consistency among the required 
submissions.'' Under the Moderate area plan requirements of CAA section 
182(b)(1) and 40 CFR 51.1108, states with ozone nonattainment areas 
classified as Moderate are provided 3 years (or 36 months) from the 
date of designation to submit a SIP revision complying with the 
Moderate ozone nonattainment plan requirements. For areas designated 
nonattainment for the 2008 ozone NAAQS and originally classified as 
Moderate, that deadline was July 20, 2015, a date that has already 
passed.
    The EPA, therefore, interprets CAA section 182(i) as providing the 
authority to adjust the applicable deadlines for the HGB area ``as 
necessary or appropriate to assure consistency among the required 
submissions.'' In determining a SIP submission deadline, we note that 
pursuant to 40 CFR 51.1108(d), for each nonattainment area the state 
must provide for implementation of all control measures needed for 
attainment no later than the beginning of the attainment year ozone 
season. The attainment year ozone season is the ozone season 
immediately preceding a nonattainment area's attainment date, in this 
case it is the 2017 ozone season (40 CFR 51.1100(h)). The ozone season 
is the ozone monitoring season as defined in 40 CFR part 58, appendix 
D, section 4.1, table D-3. For the purpose of this HGB area 
reclassification, January 1st is the beginning of the ozone monitoring 
season. Therefore, the beginning of the Moderate attainment year ozone 
season for the HGB area is January 1, 2017. This date is also the 
latest date that would be compatible with the deadline for Moderate 
area reasonably available control technology (RACT) to be in place 
(i.e., begin no later than January 1 of the 5th year after the 
effective date of designation for the 2008 ozone NAAQS, which is, in 
this case, January 1, 2017).\3\ Also, January 1, 2017 is the SIP 
submission deadline the EPA established for all other Marginal 
nonattainment areas in the country that were recently reclassified to 
Moderate.\4\
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    \3\ See 40 CFR 51.112(a)(3).
    \4\ See 81 FR 26697, May 4, 2016.
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    Accordingly, the EPA proposes that the required SIP revisions be 
submitted by Texas no later than January 1, 2017. This deadline also 
calls for implementation of applicable controls no later than January 
1, 2017. Texas must submit a Moderate Area SIP that addresses the CAA's 
Moderate nonattainment area requirements as described in 40 CFR 
51.1100. Those requirements include, (1) An attainment demonstration 
(CAA section 182(b) and 40 CFR 51.1108); (2) reasonable further 
progress (RFP) reductions in volatile organic compound (VOC) and 
nitrogen oxide (NOX) emissions (CAA sections 172 (c)(2) and 
182(b)(1) and 40 CFR 51.1110); (3) provisions for reasonably available 
control technology (RACT) (CAA section 182(b)(2) and 40 CFR 51.1112(a)-
(b)) and reasonably available control measures (RACM) (CAA section 
172(c)(1) and 40 CFR 51.1112(c)); and (4) contingency measures to be 
implemented in the event of failure to meet a milestone or attain the 
standard (CAA 172(c)(9)); (5) a vehicle inspection and maintenance 
program (CAA section 181(b)(4) and 40 CFR 51.350); and (6) 
NOX and VOC emission offsets at a ratio of 1.15 to 1 for 
major source permits (CAA section 182(b)(5) and 40 CFR 51.165 (a)) See 
also the requirements for moderate ozone nonattainment areas set forth 
in CAA section 182(b) and the general nonattainment plan provisions 
required under CAA section 172(c).
    Should the State's analysis find that the area will not meet the 
Moderate area attainment deadline of July 20, 2018, the State can seek 
a voluntary reclassification to a higher classification category, which 
would provide additional time for attainment. We believe that voluntary 
reclassification for areas that are not likely to attain by their 
attainment date is an appropriate action that will facilitate focus on 
developing the attainment plans required (80 FR 12264, 12268, March 6, 
2015). A voluntary reclassification to the Serious classification would 
set an attainment deadline of July 20, 2021 (40 CFR 51.1103).

III. Proposed Action

    In accordance with CAA 181(b)(2), we are proposing to determine 
that the HGB ozone nonattainment area failed to attain the 2008 ozone 
NAAQS by the applicable attainment deadline of July 20, 2016, and to 
reclassify the area as Moderate. We are also proposing that Texas must 
submit to us the SIP revisions to address the Moderate ozone 
nonattainment area requirements of the CAA by January 1, 2017.
    The EPA acknowledges that for the HGB area reclassified from 
Marginal to Moderate nonattainment, meeting the SIP submittal deadline 
of January 1, 2017 may be challenging. The EPA is working closely with 
TCEQ to support their SIP submittal in a timely manner. As discussed 
previously in section II of this notice, January 1, 2017 is a SIP 
submission deadline that is consistent for all Marginal nonattainment 
areas that are reclassified to Moderate for the 2008 ozone NAAQS, and 
is consistent with the timeframes in the CAA as codified in the EPA's 
implementing regulations.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget for 
review.

B. Paperwork Reduction Act (PRA)

    This proposed action does not impose an information collection 
burden under the PRA because it does not contain any information 
collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action merely proposes to determine that the HGB area failed to meet an 
ozone NAAQS attainment deadline, reclassify the area and set the date 
when a revised SIP is due to EPA.

[[Page 66243]]

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it merely proposes to determine that the 
HGB area failed to meet an ozone NAAQS attainment deadline, reclassify 
the area and set the date when a revised SIP is due to EPA.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations. This action merely proposes to determine that 
the HGB area failed to meet an ozone NAAQS attainment deadline, 
reclassify the area and set the date when a revised SIP is due to EPA.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control.

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

    Dated: September 21, 2016.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2016-23247 Filed 9-26-16; 8:45 am]
 BILLING CODE 6560-50-P