[Federal Register Volume 84, Number 30 (Wednesday, February 13, 2019)]
[Rules and Regulations]
[Pages 3708-3711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02021]



[[Page 3708]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2017-0056; FRL-9988-61-Region 6]


Approval and Promulgation of Implementation Plans; Texas; 
Reasonable Further Progress Plan for the Houston-Galveston-Brazoria 
Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving a revision to the 
Texas State Implementation Plan (SIP) to meet the Reasonable Further 
Progress (RFP) requirements for the Houston-Galveston-Brazoria (HGB) 
moderate 2008 8-hour ozone nonattainment area (HGB area). EPA is 
approving the RFP demonstration, contingency measures, motor vehicle 
emissions budgets (MVEBs) and an updated 2011 base year emissions 
inventory.

DATES: This rule is effective on March 15, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2017-0056. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT: Ms. Wendy Jacques, 214-665-7395, 
[email protected].

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

I. Background

    The background for this action is discussed in detail in our April 
25, 2018 proposal (83 FR 17964). In that document we proposed to 
approve the RFP demonstration, contingency measures, MVEBs and an 
updated 2011 base year emissions inventory for the HGB area.
    We received comments of support on the proposal from the Texas 
Commission on Environmental Quality and two relevant adverse comments 
from Environmental Integrity Project. Our response to the adverse 
comments are below.

II. Response to Comments

    Comment: Environmental Integrity Project commented that (1) it is 
unclear whether episodic emissions of ozone forming pollutants 
resulting from unplanned startups, shutdowns, maintenance, upsets and 
other unauthorized emissions are included in the Emissions Inventory 
ozone season daily nitrogen oxide (NOX) and volatile organic 
compound (VOC) values upon which the RFP plan is based and (2) to the 
extent that these values used to develop the baseline and future year 
emissions inventories do not include episodic emissions the RFP plan 
fails as a matter of law because the emissions inventories fail to 
include all actual emissions. The commenter notes that these emissions 
are quantifiable since companies report these episodic emissions to be 
included in TCEQ's emission inventory. The commenter also noted that 
researchers in the past have confirmed that these episodic emissions 
are important as they can sometimes result in large increases of ozone 
and are significant to the ozone problem in Houston and not including 
these episodic emissions in the RFP is erroneous. The commenter states 
that the RFP SIP must include a ``comprehensive, accurate, current 
inventory of actual emissions from all sources.''
    Response: CAA section 182(a)(1) requires states with ozone 
nonattainment areas to submit a SIP revision with a comprehensive, 
accurate, current inventory of actual emissions from all sources in an 
ozone nonattainment area in accordance with guidance provided by the 
Administrator. CAA section 182(b)(1) requires ozone nonattainment areas 
classified as Moderate and above to submit a RFP SIP revision. To 
implement CAA emissions inventory requirements for the 2008 ozone NAAQS 
we promulgated ``Emissions inventory requirements'' at 40 CFR 51.1115. 
The emissions values are required to be an average day's emissions for 
a typical ozone season work weekday (40 CFR 51.1115(c) and 40 CFR 
51.1100(cc)).
    To implement the RFP requirements for the 2008 ozone NAAQS we 
promulgated ``Requirements for reasonable further progress'' at 40 CFR 
51.1110. The values of the base year emissions inventory for RFP plans 
are to be an average day's emissions for a typical ozone season work 
weekday (40 CFR 51.1110(b) and 40 CFR 51.1100(cc)).
    Texas submitted a 2011 base year emissions inventory SIP revision 
for the HGB area on July 16, 2014 and we approved it as meeting the 
emissions inventory requirements for the 2008 ozone standard on 
February 20, 2015 (80 FR 9204). The RFP demonstration updated the 
previously approved emissions inventory with better estimates of an 
average day's emissions for a typical ozone season work weekday. A 
summary of the update to the 2011 base year emissions inventory is 
found in table 1.

                   Table 1--Update to the 2011 Base Year Emissions Inventory for the HGB Area
                                                 [Tons per day]
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                 Source category                   Previous NOX     Updated NOX    Previous VOC     Updated VOC
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Point...........................................          108.44          108.33           94.83           95.99
Area............................................           21.14           21.15          308.73          304.90
On-road.........................................          196.21          188.02           82.62           80.73
Mobile..........................................
Non-road........................................          121.11          142.44           49.93           49.78
Mobile..........................................
                                                 ---------------------------------------------------------------
    Total.......................................          446.90          459.94          536.12          531.40
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    EPA's rules and guidance call for an estimate of typical ozone 
season day (summer weekday) emissions to set the RFP baseline. EPA's 
emission inventory guidance recommends including Startup, Shutdown, and 
Maintenance emissions in the RFP baseline and future year weekday ozone 
season day emission inventory values if the emissions can be reasonably 
and sufficiently quantified with regular and predictable emissions.\1\ 
Similarly, Texas emission inventory guidance is to include all 
authorized/planned \2\ Start-up, Shutdown and Maintenance emissions in 
the ozone season day emissions reported in annual emission inventories 
submitted by sources that are used by TCEQ for the RFP baseline and 
future year RFP inventories.\3\ In their RFP SIP, TCEQ included 
authorized/planned Start-up, Shutdown, and Maintenance (SSM) emissions 
from 2011 in their 2011 baseline inventory and also included 
authorized/planned emissions that occurred in 2014 in the 2014 
inventory that they used to project the 2017 future RFP inventory. 
Since the amount and magnitude of authorized/planned events varies from 
day to day, Texas includes the average value of these emissions in the 
RFP average weekday inventory.\4\ So, Texas does include an estimate of 
authorized/planned Start-up, Shutdown, and Maintenance emissions.
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    \1\ ``Emissions Inventory Guidance for Implementation of Ozone 
and Particulate Matter National Ambient Air Quality Standards 
(NAAQS) and Regional Haze Regulations''; EPA-454/B-17-003, July 
2017; pages 79-80. And ``Emissions Inventory Guidance for 
Implementation of Ozone and Particulate Matter National Ambient Air 
Quality Standards (NAAQS) and Regional Haze Regulations'', EPA-454/
B-17-003; July 2017, page 19, Section 2.5.2.
    \2\ The commenter discussed unplanned and unauthorized emissions 
and TCEQ guidance centers around authorized and non-authorized and 
does not use the unplanned/planned language. For this Response to 
Comment we are interpreting that the commenter was equating planned 
with authorized and unplanned with non-authorized.
    \3\ TCEQ RG-360A/11 ``2011 Emission Inventory Guidelines'' pages 
65-70 and TCEQ RG-360A/14, ``2014 Emission Inventory Guidelines'' 
pages 70-72.
    \4\ Texas receives data on the hours that the emissions occurred 
for each occurrence and then totals the emissions during ozone 
season and divides by the total number of hours that these types of 
emissions occurred to yield an average emission rate (lb/hr that is 
translated to OSD) that is included in the RFP inventories.
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    Texas does not include unplanned startups, shutdowns, maintenance, 
upsets and other unauthorized emissions in their RFP inventories. This 
is consistent with EPA's guidance which states;\5\ ``Since malfunctions 
are, by nature, unpredictable and given the myriad different types of 
malfunctions that can occur, malfunction emissions would be difficult 
to estimate and future-year malfunction events cannot be readily 
predicted. Thus, states are not obligated to include malfunction 
emissions in the base inventory for the NAA, ROP/RFP plans, or 
attainment projected inventory for the NAA. However, to the extent that 
malfunctions become a regular and predictable event, then such 
emissions should be quantified with regular and predictable emissions 
and included in emission inventories for planning purposes. The 
elimination of high emissions during routinely reoccurring malfunctions 
could potentially help achieve significant emissions reductions needed 
by a state in attaining the relevant NAAQS.'' Malfunctions in EPA's 
terminology are very similar to unplanned events in TCEQ's regulatory 
structure. Because of the unpredictability and variability of unplanned 
and/or unauthorized emissions due to malfunctions, as explained in the 
EPA guidance it is reasonable that Texas did not include these 
emissions in its estimate of average ozone season weekday emissions.
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    \5\ ``Emissions Inventory Guidance for Implementation of Ozone 
and Particulate Matter National Ambient Air Quality Standards 
(NAAQS) and Regional Haze Regulations''; EPA-454/B-17-003, July 
2017; page 80.
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    Although these unauthorized emissions are not appropriate to be 
included in the RFP plan, TCEQ recognizes the importance of emissions 
from startups, shutdowns, maintenance, and upsets/malfunctions. These 
episodic emissions (planned and unplanned) are quantified and included 
in the attainment demonstration modeling which better lends itself for 
utilization of day to day variation of emissions because daily 
emissions from specific historic episodes are modeled versus typical 
ozone season day weekday emissions used in the RFP inventories.\6\ 
Furthermore, based on the evolving knowledge about unplanned episodic 
emissions and the potential impacts on ozone levels, TCEQ has conducted 
a number of studies that have resulted in best management practice 
improvements for some point source categories to reduce episodic 
emission events.\7\ For example, TCEQ's studies have included best 
management practice improvements for flaring, which is one of the 
sources related with malfunctions and that may have the potential to 
impact ozone levels. These best management practice improvements are 
expected to result in emission reductions, but EPA acknowledges that 
quantification of baseline and future year emission events and non-
authorized/unplanned start-up, shutdown, and maintenance emissions 
(future year would be expected to be different than baseline) with the 
certainty required for a RFP SIP is not reasonably possible.
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    \6\ EPA-R06-OAR-2017-0053-0004; ``Appendix B: Emissions Modeling 
for the HGB Attainment Demonstration sip Revision for the 2008 
Eight-Hour Ozone Standard''
    \7\ For a discussion of the studies please see pages 248-251 of 
the Technical Support Document for the Houston Galveston Brazoria 
Modeling and Other Analyses Attainment Demonstration (HGB-MOAAD) at 
https://www.regulations.gov/document?D=EPA-R06-OAR-2013-0387-0002. 
Also see documents available at https://www.tceq.texas.gov/airquality/stationary-rules/stakeholder/flare_stakeholder.html.
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    In sum, Texas's approach is consistent with our emissions inventory 
guidance regarding non-authorized/unplanned episodic/malfunction 
emissions. EPA believes these emissions can vary significantly and 
unpredictably from day to day and therefore it is acceptable these 
emissions not be included in the periodic emissions inventory required 
under 40 CFR 51.1115(b) or the emissions inventory for RFP purposes. We 
note Texas recognizes the importance of these emissions and has 
undertaken efforts to reduce episodic emissions. In conclusion, TCEQ 
has met the requirements of 40 CFR 51.1110, 40 CFR 51.1115 and sections 
182(a)(1) and 182(b)(1) of the CAA.
    Comment: Environmental Integrity Project also stated that we may 
not rely on motor vehicle emissions reductions that we intend to 
discontinue. The comment stated that the single largest anticipated 
vehicle emissions reduction is from the Federal Motor Vehicle Control 
Program (FMVCP) and referred to an April announcement that we would 
work with the National Highway Traffic Safety Administration to revise 
the greenhouse gas (GHG) emissions standards and Corporate Average Fuel 
Economy (CAFE) standards for model year 2022 and 2025 light-duty 
vehicles.
    Response: EPA agrees that SIPs can only rely upon reductions that 
are enforceable for the purpose and years addressed by the SIP. 
However, it is incorrect that the RFP SIP relies on motor vehicle 
emissions reductions that we intend to discontinue. The RFP SIP 
addresses NOx and VOC emission levels for the year 2011 to 
2018, and during that time period the SIP relies on NOx and 
VOC emission reductions that have already occurred. In the case of the 
contingency measure reductions, these are expected to occur in 2018 due 
to regulations that have been implemented. In addition, it is important 
to note that the SIP relies upon EPA's emissions standard regulations 
which reduce criteria pollutant emissions. The GHG

[[Page 3710]]

regulations cited by the commenter do not affect criteria pollutant 
emissions standards and are also not related to the years addressed by 
the SIP.

III. Final Action

    We are approving the HGB RFP SIP revision submitted on December 29, 
2016, to meet the RFP requirements for the HGB moderate 2008 8-hour 
ozone nonattainment area as well as an updated 2011 base year emissions 
inventory for the 2008 Ozone NAAQS. This action is being taken under 
section 110 of the Act.

IV. Statutory and Executive Order Reviews

    Under the CAA, 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, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is 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.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is 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);
     Is 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 CAA; and
     Does 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 15, 2019. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: February 6, 2019.
Anne Idsal,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. In Sec.  52.2270(e), the second table titled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas 
SIP'' is amended by adding an entry at the end for ``HGB Area 
Reasonable Further Progress (RFP) Plan, RFP Contingency Measures, RFP 
Motor Vehicle Emission Budgets for 2017, and Revised 2011 Base Year 
Emissions Inventory for the 2008 Ozone NAAQS'' to read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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                                    Applicable
                                  geographic or         State        EPA approval
     Name of SIP provision        nonattainment      submittal/          date                  Comments
                                       area        effective date
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                                                  * * * * * * *
HGB Area Reasonable Further     Brazoria,              12/29/2016  2/13/2019,        ...........................
 Progress (RFP) Plan, RFP        Chambers, Fort                     [Insert Federal
 Contingency Measures, RFP       Bend, Galveston,                   Register
 Motor Vehicle Emission          Harris, Liberty,                   citation].
 Budgets for 2017, and Revised   Montgomery and
 2011 Base Year Emissions        Waller Counties,
 Inventory for the 2008 Ozone    TX.
 NAAQS.
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[FR Doc. 2019-02021 Filed 2-12-19; 8:45 am]
 BILLING CODE 6560-50-P