[Federal Register Volume 85, Number 31 (Friday, February 14, 2020)]
[Rules and Regulations]
[Pages 8411-8428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02053]



[[Page 8411]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R06-OAR-2018-0715; FRL-10004-70-Region 6]


Air Plan Approval; Texas; Houston-Galveston-Brazoria Area 
Redesignation and Maintenance Plan for Revoked Ozone National Ambient 
Air Quality Standards; Section 185 Fee Program

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 or Agency) is approving revisions 
to the Texas State Implementation Plan (SIP) that pertain to the 
Houston-Galveston-Brazoria (HGB) area and the 1979 1-hour and 1997 8-
hour ozone National Ambient Air Quality Standards (NAAQS or standard). 
The EPA is approving the plan for maintaining the 1-hour and 1997 ozone 
NAAQS through the year 2032 in the HGB area. The EPA is determining 
that the HGB area continues to attain the 1979 1-hour and 1997 8-hour 
ozone NAAQS and has met the five CAA criteria for redesignation. 
Therefore, the EPA is terminating all anti-backsliding obligations for 
the HGB area for the 1-hour and 1997 ozone NAAQS. The EPA is also 
approving the Texas Severe Ozone Nonattainment Area Failure to Attain 
Fee regulations for the HGB area as an equivalent alternative program 
to address section 185 of the CAA for the 1-hour ozone NAAQS.

DATES: This rule is effective on March 16, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2018-0715. All documents in the docket are 
listed on the https://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 https://www.regulations.gov or 
in hard copy at the EPA Region 6 Office, 1201 Elm Street, Suite 500, 
Dallas, Texas 75270.

FOR FURTHER INFORMATION CONTACT: Carrie Paige, EPA Region 6 Office, 
Infrastructure & Ozone Section, 1201 Elm Street, Suite 500, Dallas, TX 
75270, 214-665-6521, [email protected]. To inspect the hard copy 
materials, please schedule an appointment with Ms. Paige or Mr. Bill 
Deese at 214-665-7253.

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

I. Background and Summary of Final Action

    The background for this action is discussed in detail in our May 
16, 2019 Proposal (84 FR 22093, ``Proposal''). In that document we 
proposed to: (1) Approve the plan for maintaining both the revoked 1979 
1-hour and 1997 8-hour ozone NAAQS \1\ through 2032 in the HGB area; 
(2) Approve 30 Texas Administrative Code (TAC) sections 101.100-
101.102, 101.104, 101.106-101.110, 101.113, 101.116, 101.117, 
101.118(a)(1), 101.118(a)(3), and 101.120-101.122 as an equivalent 
alternative 185 fee program to address CAA section 185; (3) Determine 
that the HGB area is continuing to attain both the revoked 1-hour and 
1997 ozone NAAQS; (4) Determine that Texas (``the State'') has met the 
CAA criteria for redesignation of the HGB area; and, (5) Terminate all 
anti-backsliding obligations for the HGB area for both the 1-hour and 
1997 ozone NAAQS.
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    \1\ Throughout this document, we refer to the 1979 1-hour ozone 
NAAQS as the ``1-hour ozone NAAQS'' and the 1997 8-hour ozone NAAQS 
as the ``1997 ozone NAAQS.''
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    In this final action, we are approving the plan for maintaining 
both the 1-hour and 1997 ozone NAAQS through the year 2032 in the HGB 
area. We are also approving the HGB Severe Ozone Nonattainment Area 
Failure to Attain Fee regulations program as an equivalent alternative 
program to address section 185 of the CAA for the 1-hour ozone NAAQS. 
We are also determining that the HGB area continues to attain both the 
1-hour and 1997 ozone NAAQS and has met the five criteria in CAA 
section 107(d)(3)(E) for redesignation.
    The EPA revoked both the 1-hour and 1997 ozone NAAQS along with 
associated designations and classifications (69 FR 23951, April 30, 
2004; and, 80 FR 12264, March 6, 2015), and thus, the HGB area has no 
designation under both the 1-hour or 1997 ozone NAAQS that can be 
changed through redesignation as governed by CAA section 107(d)(3)(E). 
Therefore, we are not promulgating a redesignation of the HGB area 
under CAA section 107(d)(3)(E). However, because the HGB area has met 
the five criteria in section 107(d)(3)(E) for redesignation, we are 
terminating all anti-backsliding obligations for the HGB area for both 
the revoked 1-hour and 1997 ozone NAAQS.
    To determine the criteria under CAA section 107(d)(3)(E) are met, 
we must do the following: (1) Determine that the area has attained the 
NAAQS; (2) Fully approve the applicable implementation plan for the 
area under CAA section 110(k); (3) Determine that the improvement in 
air quality is due to permanent and enforceable reductions in emissions 
resulting from implementation of the applicable implementation plan and 
Federal air pollutant control regulations and other permanent and 
enforceable reductions; (4) Fully approve a maintenance plan for the 
area as meeting the requirements of CAA section 175A; and, (5) 
Determine the state containing such area has met all requirements 
applicable to the area under CAA section 110 (Implementation plans) and 
Part D (Plan Requirements for Nonattainment Areas).
    As discussed in our Proposal, in the Technical Support Document 
(TSD) for this action,\2\ and in the remainder of this preamble, the 
five criteria above have been met. In past actions, we have determined 
that the area has attained the 1-hour and 1997 ozone NAAQS due to 
permanent and enforceable measures (Criteria 1 and 3). As discussed in 
the Proposal and in this final action, air quality in the HGB area has 
been meeting the 1-hour standard since 2013 and the 1997 ozone standard 
since 2014. As documented in the Proposal and the TSD, numerous State, 
Federal and local measures have been adopted and implemented including 
NOx and Highly Reactive Volatile Organic Compounds (HRVOC) \3\ mass 
emissions cap and trade programs and federal on- and off-road emissions 
control programs which have resulted in significant reductions and 
resulted in attainment of the 1-hour and 1997 ozone standards.
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    \2\ There are three TSDs in the docket for this action. The 
first of the TSDs relates to the CAA section 107(d)(3)(E) criteria, 
including, but not limited to the maintenance plan for the HGB area 
for the revoked 1-hour and 1997 ozone NAAQS. The other two TSDs that 
are referred to later in this action relate to the HGB equivalent 
alternative section 185 program. Unless otherwise noted, ``TSD'' 
refers to the first instance described herein.
    \3\ HRVOCs are important to control as they react quickly to 
form ozone.
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    We are also finding that the area has met all requirements under 
CAA section

[[Page 8412]]

110 and part D that are applicable for purposes of redesignation, and 
all such requirements have been fully approved (Criteria 2 and 5). As 
discussed in the Proposal, for the revoked ozone standards at issue 
here, over the past three decades the State has submitted numerous SIPs 
for the HGB area to implement those standards, improve air quality with 
respect to those standards, and address anti-backsliding requirements 
for those standards. The TSD documents many of these actions and EPA 
approvals. However, EPA has consistently held the position that not 
every requirement to which an area is subject is applicable for 
purposes of redesignation. See, e.g., September 4, 1992, Memorandum 
from John Calcagni (``Calcagni Memorandum'').\4\ As described in the 
Calcagni Memorandum, some of the Part D requirements, such as 
demonstrations of reasonable further progress, are designed to ensure 
that nonattainment areas continue to make progress toward attainment. 
EPA has interpreted these requirements as not ``applicable'' for 
purposes of redesignation under CAA section 107(d)(3)(E)(ii) and (v) 
because areas that are applying for redesignation to attainment are 
already attaining the standard. Similarly, as explained further below, 
EPA believes that the CAA section 185 fee requirement is not applicable 
for the purposes of redesignation. We note that we are approving the 
HGB equivalent alternative section 185 fee program for the revoked 1-
hour ozone standard separately in this action but do not believe it is 
an applicable requirement for redesignation. This means that we are 
terminating this requirement.
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    \4\ As referenced in our Proposal, see ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992. To view the memo, please visit https://www.epa.gov/sites/production/files/2016-03/documents/calcagni_memo_-_procedures_for_processing_requests_to_redesignate_areas_to_attainment_090492.pdf.
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    Finally, we are fully approving the maintenance plan for the HGB 
area. As discussed in the Proposal, we agree that Texas has provided a 
plan that demonstrates that the HGB area will maintain attainment of 
the revoked 1-hour and 1997 standards until 2032. The plan also 
includes contingency measures that would be implemented in the HGB area 
should the area monitor a violation of these standards in the future.

II. Response to Comments

    We received comments from six entities on the proposed rulemaking. 
These comments are available for review in the docket for this 
rulemaking. The comments were submitted by the following: Earthjustice 
(on behalf of five national, regional, and grassroots groups); Baker 
Botts, L.L.P on behalf of the Section 185 Working Group and BCCA Appeal 
Group (``Baker Botts''); the Texas Commission on Environmental Quality 
(TCEQ or State); the Texas Oil and Gas Association (TXOGA); and two 
anonymous commenters. Our responses to all relevant comments follow. 
Any other comments received were either deemed irrelevant or beyond the 
scope of this action and are also included in the docket to this 
action.

A. Comments on the Plan for Maintaining the Revoked Ozone Standards

    Comment: An anonymous commenter (``Commenter'') states that EPA 
mistakenly evaluates annual emissions inventories for nitrogen oxides 
(NOX) and volatile organic compounds (VOC) to show 
maintenance of the NAAQS. Commenter states that EPA must re-evaluate 
based on typical ozone season day values and show that permanent and 
enforceable measures have been enacted to maintain ozone season day 
averages that limit 1-hour and 8-hour ozone levels.
    Response: As described in our TSD, attainment of these ozone NAAQS 
is determined by reviewing specific data averaged over a three-year 
period. For example, the 1997 ozone standard is attained when the 3-
year average of the annual fourth highest daily maximum 8-hour average 
ambient air quality ozone concentration is less than or equal to 0.08 
ppm \5\ (69 FR 23857, April 30, 2004).\6\ Also, as mentioned in our 
TSD, ground-level ozone is formed when NOX and VOC react in 
the presence of sunlight. Therefore, having an inventory of emissions 
for NOX and VOC at the time the area first met both of these 
NAAQS (i.e., in 2014) helps determine what levels of emissions would be 
needed to maintain these NAAQS in the HGB area. As indicated in our 
Proposal, the 2014 base year emission inventories (EIs) for 
NOX and VOC represent the first year in which the HGB area 
is attaining both the 1-hour and 1997 ozone NAAQS and thus provide a 
starting point against which to evaluate the EI levels estimated for 
future years. In addition, consistent with the Calcagni Memorandum 
regarding a Maintenance Demonstration, ``[a] State may generally 
demonstrate maintenance of the NAAQS by either showing that future 
emissions of a pollutant or its precursors will not exceed the level of 
the attainment inventory or by modeling to show that the future mix of 
sources and emission rates will not cause a violation of the NAAQS.'' 
Calcagni Memorandum at 4. Because the State's estimated future EIs for 
the HGB area do not exceed the 2014 base year EI (i.e., the attainment 
inventory), we would not expect the area to have emissions leading to a 
violation of the 1-hour or 1997 ozone NAAQS.
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    \5\ This value becomes 0.084 ppm or 84 ppb when rounding is 
considered.
    \6\ Ambient air quality monitoring data for the 3-year period 
must meet a data completeness requirement. For details, please see 
40 CFR 50, Appendix I.
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    We disagree that we must re-evaluate based on ``typical ozone 
season day values'' because the EIs submitted by the State and 
evaluated in our Proposal were comprised of ozone season daily 
emissions of NOX and VOC. No re-evaluation is necessary. We 
agree that we must determine that improvements in air quality are due 
to permanent and enforceable reductions in emissions in the HGB area, 
and we listed such measures in Appendix A of our TSD. For example, one 
of the emission reduction measures adopted in the HGB Area under the 1-
hour ozone NAAQS is the HRVOC emissions cap, whose estimated VOC 
emission reductions were 135.79 tons per day (tpd) (see 71 FR 52656, 
September 6, 2006). See Appendix A in the TSD for a list of the 
permanent and enforceable measures approved in the HGB area under the 
1-hour and 1997 ozone NAAQS.\7\ Finally, in prior final actions, we 
established that the HGB area has attained the 1-hour and 1997 ozone 
NAAQS due to permanent and enforceable emission reductions.\8\
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    \7\ The TSD is in the docket for this action and Appendix A 
begins on page 14 of the TSD.
    \8\ See 80 FR 63429, October 20, 2015 and 81 FR 78691, November 
8, 2016.
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B. Comments on Termination of Anti-Backsliding Obligations for the 
Revoked Ozone Standards

    We proposed to find that the HGB area met all five redesignation 
criteria in CAA section 107(d)(3)(E), consistent with the decision of 
the U.S. Court of Appeals for the District of Columbia Circuit in South 
Coast Air Quality Management District v. EPA, 882 F.3d 1138 (D.C. Cir. 
2018) (``South Coast II'') for the revoked ozone standards and to 
terminate the anti-backsliding obligations for the HGB area associated 
with these standards. In the alternative, we proposed to redesignate 
the HGB area to attainment for the revoked ozone standards, taking 
comment on whether

[[Page 8413]]

we had authority to do so. In this action, based upon comments 
received, we are finalizing the first option.
    Comment: Earthjustice states that ozone is a serious health problem 
in Houston.
    Response: We agree that ozone is a significant health issue in the 
HGB area, but we also recognize that significant progress has been made 
in reducing ozone levels in the area. This action recognizes that the 
HGB area has met air emissions reductions milestones with respect to 
both the revoked 1-hour and 1997 ozone NAAQS. We also recognize that 
further air quality improvement is necessary in the area to meet the 
two current 2008 and 2015 ozone NAAQS and to protect public health. The 
HGB area was designated as nonattainment for both the revoked 1-hour 
and 1997 ozone NAAQS and is designated as nonattainment for the two 
current (2008 and 2015) 8-hour ozone NAAQS.\9\ As a result, the State 
and HGB area--including local governments, business and industry--have 
implemented measures to reduce emissions of NOX and VOC that 
form ozone (see, e.g., Appendix A: Permanent and Enforceable Measures 
Implemented in the HGB Area, in the TSD for this action). Accordingly, 
the HGB area has seen its 1-hour ozone design values decrease from over 
200 parts per billion (ppb) in 1997 to 112 ppb in 2018. Likewise, the 
HGB area design values for the 8-hour ozone NAAQS have decreased from 
102 ppb in 2003 to 78 ppb in 2018.\10\ Because the area has attained 
the revoked 1-hour and 1997 ozone NAAQS, and has also met the other CAA 
statutory requirements for redesignation for these standards, we 
believe it is appropriate to terminate the anti-backsliding 
requirements associated with these revoked NAAQS.
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    \9\ For the 1-hour and 1997 and 2008 8-hour ozone standards: The 
Houston nonattainment area consists of Brazoria, Chambers, Fort 
Bend, Galveston, Harris, Liberty, Montgomery and Waller Counties (56 
FR 56694, November 6, 1991; 69 FR 23858, April 30, 2004; and 77 FR 
30088, May 21, 2012). For the 2015 8-hour ozone NAAQS: The Houston 
nonattainment area consists of Brazoria, Chambers, Fort Bend, 
Galveston, Harris, and Montgomery Counties (83 FR 25776, June 4, 
2018).
    \10\ See the TCEQ ozone reports posted at https://www.tceq.texas.gov/airquality/monops/ozone.
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    The area will remain designated nonattainment for the 2008 and 2015 
ozone NAAQS. The HGB area was recently reclassified as a Serious 
nonattainment area for the 2008 ozone NAAQS, and therefore the State 
must submit SIP revisions and implement controls to satisfy the 
statutory and regulatory requirements for a Serious nonattainment area 
for the 2008 ozone standard.\11\
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    \11\ See 83 FR 25576, June 4, 2018, and 84 FR 44238, August 23, 
2019.
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    Comment: Earthjustice states that EPA cannot lawfully or rationally 
apply the criteria at CAA section 107(d)(3)(E) to terminate anti-
backsliding protections for the Houston area, because that statutory 
provision provides only minimum criteria that must be satisfied before 
a designated nonattainment area may be redesignated to attainment. 
Earthjustice states that the provision provides no authority to 
terminate anti-backsliding on the basis of an area meeting its criteria 
for a revoked standard. The commenter also states that EPA does not and 
cannot identify a source of authority for its application of the 
statutory provision for the purposes of terminating anti-backsliding 
provisions and has not purported to create regulations here under its 
general rulemaking authority of Clean Air Act section 301(a) to do so. 
Finally, the commenter alleges that the EPA's reliance on South Coast 
II to support its authority to terminate HGB's anti-backsliding 
requirements for the two revoked ozone NAAQS is unlawful and arbitrary. 
Earthjustice argues that the D.C. Circuit in South Coast II held only 
that the redesignation substitute was unlawful because it fell short of 
certain statutory requirements and did not address any other reasons 
why the regulation was unlawful and arbitrary. The commenter alleges 
that South Coast II ``says nothing'' about whether EPA could lawfully 
authorize termination of anti-backsliding requirements in the 
circumstance addressed here, where the area continues to violate the 
2008 and 2015 ozone NAAQS, and where termination ``weakens protections 
in the area.'' Earthjustice states that the South Coast II court's 
holding with respect to the EPA's authority to reclassify areas after 
revocation is irrelevant to the question of the EPA's authority to 
change an area's designation after revocation.
    Response: We disagree that the EPA lacks authority to terminate an 
area's anti-backsliding requirements for a revoked NAAQS and that we 
may not do so here for the HGB area with respect to the two revoked 
ozone NAAQS in question. The commenter's suggestion that the EPA may 
not look to the statutory redesignation criteria in CAA section 
107(d)(3)(E) for authority to terminate the HGB area's anti-backsliding 
requirements is contradicted by the D.C. Circuit's decision in South 
Coast II. In that decision, the court faulted the redesignation 
substitute, one of the EPA's mechanisms for terminating anti-
backsliding, but only because it had addressed only some, and not all, 
of the statutory redesignation criteria:

    ``The redesignation substitute request `is based on' the Clean 
Air Act's `criteria for redesignation to attainment' under [CAA 
section 107(d)(3)(E)], 80 FR at 12,305, but it does not require full 
compliance with all five conditions in [CAA section 107(d)(3)(E)]. 
The Clean Air Act unambiguously requires nonattainment areas to 
satisfy all five of the conditions under [CAA section 107(d)(3)(E)] 
before they may shed controls associated with their nonattainment 
designation. The redesignation substitute lacks the following 
requirements of [CAA section 107(d)(3)(E)]: (1) The EPA has `fully 
approved' the [CAA section 110(k)] implementation plan; (2) the 
area's maintenance plan satisfies all the requirements under [CAA 
section 175A]; and (3) the state has met all relevant [CAA section 
110 and Part D] requirements. 80 FR at 12,305. Because the 
`redesignation substitute' does not include all five statutory 
requirements, it violates the Clean Air Act.''

882 F.3d at 1152.
    We disagree that the D.C. Circuit ``said nothing'' with respect to 
how anti-backsliding controls could be lawfully terminated for areas 
under a revoked NAAQS. The court stated that the Act ``unambiguously'' 
requires that all five statutory redesignation criteria be met before 
anti-backsliding controls (i.e., controls associated with the 
nonattainment designation for a revoked NAAQS) could be shed. Id. The 
court's express basis for vacating the redesignation substitute was 
that the mechanism failed to incorporate all of the statutory criteria 
as preconditions. Id. (``Because the `redesignation substitute' does 
not include all five statutory requirements, it violates the Clean Air 
Act.''). We do not agree with the commenter's suggestion that the EPA 
may not rely on the court's plain interpretation of the Act and act in 
accordance with it. The EPA had previously approved redesignation 
substitutes for the HGB area for the 1-hour ozone NAAQS and the 1997 
ozone NAAQS. As discussed in our Proposal, this final action replaces 
our previous approvals of the Houston area redesignation substitutes 
for the 1-hour and 1997 ozone NAAQS.
    Furthermore, we reject the commenter's suggestion that 
nonattainment of the newer, current NAAQS is a unique set of 
circumstances that would reasonably alter the EPA's ability to either 
redesignate an area or terminate anti-backsliding requirements for a 
prior NAAQS. Nothing in CAA section 107(d)(3) suggests that the EPA's 
approval of a redesignation or termination of anti-backsliding for one

[[Page 8414]]

NAAQS should include evaluation of attainment of another newer NAAQS. 
It is common practice that areas designated nonattainment for an 
earlier, less stringent NAAQS come into compliance with that NAAQS, 
meet the requirements for redesignation for that NAAQS, and are 
redesignated to attainment for that NAAQS, while remaining 
nonattainment for a newer more stringent standard for the same 
pollutant. Indeed, with Congress' directive that the EPA review and 
revise the NAAQS as appropriate no less frequently than every five 
years, it would be nearly impossible for areas to be redesignated to 
attainment for an older NAAQS if nonattainment of a newer (often more 
stringent) standard barred EPA from approving redesignation requests 
for the older standard.
    We also disagree that this action's effects terminating anti-
backsliding requirements are in any way ``unique.'' Areas that are 
redesignated to attainment are permitted to stop applying nonattainment 
area New Source Review offsets and thresholds and transition to the 
Prevention of Significant Deterioration program, which the EPA does not 
agree is an unwarranted ``weakening'' of protections. In this case, 
because the HGB area remains nonattainment for the newer ozone NAAQS, 
it will continue to be subject to nonattainment new source review 
(NNSR) emissions offsets and threshold requirements, tailored to the 
current classifications that apply to the area. We do not agree that it 
is arbitrary or unlawful to hold areas that were nonattainment for a 
revoked NAAQS to the same standards that apply to areas that are 
nonattainment for the current NAAQS. EPA does not agree with 
commenter's suggestion that areas that have reached attainment should 
be subject to a more stringent process to shed obligations under a 
revoked NAAQS than the process required to shed obligations for a 
current NAAQS.
    Finally, with respect to Earthjustice's comment that the South 
Coast II court's holding regarding reclassification does not support an 
interpretation that the EPA has the authority to alter designations, 
the EPA is not finalizing a change in designation for the area for the 
two revoked NAAQS. Because we are not redesignating the HGB area to 
attainment no further response to this specific comment is required.
    Comment: Earthjustice states that EPA cannot lawfully or rationally 
change Houston's designation under revoked standards.
    Response: The EPA is not changing the designation for the HGB area 
under the 1-hour or 1997 ozone NAAQS in this action. As noted above, 
the designations for these areas were revoked when the NAAQS were 
revoked. In this action, EPA is terminating the anti-backsliding 
requirements associated with the two revoked NAAQS in this area.
    Comment: Earthjustice states that EPA arbitrarily fails to consider 
the consequences of terminating anti-backsliding protections. The 
commenter asserts that the EPA is not legally obligated to redesignate 
an area that meets criteria of CAA section 107(d)(3)(E), and that 
additionally, the EPA must also determine whether it should redesignate 
the area. Earthjustice states that finalization of this Proposal would 
ratify termination of key anti-backsliding protections, particularly 
the Severe area NNSR protections that would otherwise apply to proposed 
new and modified stationary sources and work to impose more stringent 
limits on harmful ozone-forming pollution attributable to those new and 
modified stationary sources. By authorizing Houston to have weaker 
protections than it otherwise would, while still having severely 
harmful levels of ozone air pollution, Earthjustice claims that the 
EPA's action irrationally deprives Houston communities of CAA public 
health protections intended to bring the area expeditiously into 
compliance with health-based ozone standards.
    Response: As stated previously, we are not in this action 
redesignating the HGB area for the revoked NAAQS. Rather, we find that 
all five CAA statutory criteria for redesignation are met, and 
therefore anti-backsliding obligations for the revoked NAAQS are 
appropriately terminated. We do not agree that the facts and 
circumstances before us support the commenter's reading that, despite 
Texas having met all five statutory criteria, the EPA should withhold 
approval of the state's request.
    We note that we have considered the consequence of terminating 
anti-backsliding protections raised by the commenter, i.e., the Severe 
classification requirements for NNSR. We believe that the improvement 
in air quality due to the permanent, enforceable controls included in 
the Texas SIP for the HGB area makes termination of these Severe area 
requirements appropriate and, as discussed previously, consistent with 
the Act's provisions.
    We note NNSR is still in place because the area remains 
nonattainment under the 2008 and 2015 standards. The HGB area is 
classified as a Marginal nonattainment area under the 2015 ozone NAAQS, 
and a Serious nonattainment area under the 2008 ozone NAAQS and as 
such, is required to implement NNSR consistent with the Serious area 
classification, as required by CAA sections 182(c)(6), 182(c)(7), 
182(c)(8), and 182(c)(10).12 13 In addition, approval of 
this final action does not relieve sources in the area of their 
obligations under previously established permit conditions. The Texas 
SIP includes a suite of approved permitting regulations for the Minor 
and Major NNSR for ozone that will continue to apply in the HGB area 
even after final approval of this action.\14\ Each of these permitting 
regulations has been evaluated and approved by EPA into the SIP as 
consistent with the requirements of the CAA and protective of air 
quality, including the requirements at 40 CFR 51.160 whereby the TCEQ 
cannot issue a permit or authorize an activity that will result in a 
violation of applicable portions of the control strategy or that will 
interfere with attainment or maintenance of a NAAQS. Thus, new sources 
and modifications will continue to be permitted and authorized under 
the existing SIP permitting requirements if they are determined to be 
protective of air quality.
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    \12\ See 84 FR 44238.
    \13\ Liberty and Waller Counties are designated as attainment/
unclassifiable for the 2015 ozone NAAQS, but these two counties are 
included in the Serious nonattainment area under the 2008 ozone 
NAAQS, so they must implement NNSR as a Serious ozone nonattainment 
area.
    \14\ For example, see the Texas SIP-approved rules addressing 
Prevention of Significant Deterioration (PSD) at 30 TAC 
116.12(20)(A), published at 79 FR 66626, November 10, 2014, and in 
www.regulations.gov docket ID: EPA-R06-OAR-2013-0808.
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    This action recognizes that the HGB area met the requirements for 
redesignation for both the revoked 1-hour and 1997 ozone NAAQS and as a 
result it is appropriate to relieve the area of the Severe NNSR 
requirements associated with these revoked standards.
    Comment: Earthjustice states that Houston was the only area in 
Texas to report violations of the revoked 1-hour standard in 2018, 
exceeding the standard at eleven air monitor locations on five days. 
Earthjustice states that EPA cannot rationally terminate anti-
backsliding protections in Houston as the area continues to experience 
some of the worst air pollution in the nation.
    Response: We do not agree that the HGB area experienced violations 
of the 1-hour ozone NAAQS in 2018. The area has consistently continued 
to attain that NAAQS since 2013. As noted above, the statutory 
requirements for redesignation (and in this case, for termination of 
anti-

[[Page 8415]]

backsliding) are not dependent on whether the area is failing to attain 
newer, more stringent NAAQS. Nor do we think it would be appropriate to 
disapprove a state's request to terminate anti-backsliding because an 
area experienced worse air quality than other areas in the nation, if 
that area met the statutory criteria associated with redesignation for 
that prior revoked NAAQS. The HGB area continues to be subject to the 
CAA statutory and regulatory requirements to meet the more stringent 
ozone NAAQS, and this action does not alter that obligation.
    We acknowledge that in 2018 the HGB area experienced several 
exceedances of the 1-hour ozone NAAQS. An exceedance of the 1-hour 
ozone NAAQS occurs when the maximum hourly average concentration at an 
ozone monitor is above 0.12 parts per million (or 120 ppb) \15\ and as 
Earthjustice notes, there were exceedances at monitors in the HGB area. 
Six of the regulatory monitors in the HGB area each recorded one 
exceedance, and a seventh regulatory monitor recorded two 
exceedances.\16\ However, these exceedances did not result in a 
violation of the 1-hour ozone NAAQS. As described earlier in this 
document and in our TSD, the 1-hour ozone NAAQS is determined by 
reviewing specific data averaged over a three-year period. The number 
of exceedances at a monitoring site would be recorded for each calendar 
year and then averaged over the past 3 calendar years to determine if 
this average is less than or equal to 1. A violation occurs when this 
average is greater than 1. Table 1 in this final action shows the 1-
hour ozone exceedances by monitor in the HGB area for calendar years 
2014 through 2018 to demonstrate the area's continued attainment of the 
1-hour ozone NAAQS.\17\ In addition, Table 1 in our Proposal provided 
the preliminary 2016-2018 1-hour and 1997 ozone design values for the 
HGB area. Quality-assured data collected through 2018 and preliminary 
data for 2019 indicate that the area has continued to maintain these 
NAAQS (see Table 2).
---------------------------------------------------------------------------

    \15\ For ease of communication, many reports of ozone 
concentrations are provided in ppb. To convert, ppb = ppm x 1000 
(0.12 x 1000 = 120). Thus, 0.12 ppm = 120 ppb (this value becomes 
124 ppb when rounding is considered).
    \16\ See Table 1 in this final action.
    \17\ Table 1 in our Proposal TSD provided the 1-hour ozone 
expected exceedances by monitor in the HGB area for 2014 through 
2017. At the time of this writing, data for the last quarter of 2019 
are not yet posted in EPA's Air Quality System (AQS) and thus, we 
are unable to add such to Table 1 in this final action. For more 
information on the AQS, visit https://www.epa.gov/aqs.
    \18\ The ozone monitor on Polk Avenue (AQS site number 48-201-
0070), was discontinued after 2012.
    \19\ At the time of this writing, the preliminary ozone data for 
2019 are posted on the TCEQ website but are not yet posted in AQS. 
See https://www.tceq.texas.gov/cgi-bin/compliance/monops/8hr_attainment.pl.

                                         Table 1--One-Hour Ozone Expected Exceedances by Monitor in the HGB Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Expected exceedances by year                 3 Years expected exceedances
                                                              -------------------------------------------------------              (average)
                HGB monitoring site (AQS site)                                                                       -----------------------------------
                                                                  2014       2015       2016       2017       2018     2014-2016   2015-2017   2016-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Manvel Croix (48-039-1004)...................................        1.0        0.0        0.0        0.0        0.0         0.3         0.0         0.0
Lake Jackson (48-039-1016)...................................        0.0        0.0        0.0        0.0        0.0         0.0         0.0         0.0
Galveston (48-167-1034)......................................        0.0        1.0        0.0        0.0        0.0         0.3         0.3         0.0
Houston Aldine (48-201-0024).................................        0.0        3.0        0.0        0.0        1.0         1.0         1.0         0.3
Channelview (48-201-0026)....................................        0.0        0.0        0.0        0.0        2.0         0.0         0.0         0.7
Tomball (48-201-0029)........................................        0.0        0.0        0.0        0.0        1.1         0.0         0.0         0.4
Houston N Wayside (48-201-0046)..............................        0.0        0.0        0.0        0.0        0.0         0.0         0.0         0.0
Lang (48-201-0047)...........................................        0.0        1.0        0.0        0.0        1.0         0.3         0.3         0.3
Croquet (48-201-0051)........................................        0.0        0.0        0.0        0.0        0.0         0.0         0.0         0.0
Houston Bissonett (48-201-0055)..............................        0.0        1.0        0.0        0.0        0.0         0.3         0.3         0.0
Monroe (48-201-0062).........................................        0.0        0.0        0.0        0.0        0.0         0.0         0.0         0.0
Houston Hwy 6 (48-201-0066)..................................        0.0        0.0        0.0        0.0        0.0         0.0         0.0         0.0
Polk (48-201-0070) \18\......................................         NA         NA         NA         NA         NA          NA          NA          NA
Park Place (48-201-0416).....................................        0.0        3.0        0.0        0.0        0.0         1.0         1.0         0.0
Lynchburg Ferry (48-201-1015)................................        0.0        0.0        0.0        0.0        1.0         0.0         0.0         0.3
Baytown Garth (48-201-1017)..................................        0.0        0.0        0.0        0.0        0.0         0.0         0.0         0.0
Houston East (48-201-1034)...................................        0.0        1.1        0.0        0.0        1.0         0.4         0.4         0.3
Clinton Drive (48-201-1035)..................................        0.0        0.0        0.0        0.0        1.0         0.0         0.0         0.3
Deer Park 2 (48-201-1039)....................................        0.0        0.0        0.0        0.0        0.0         0.0         0.0         0.0
Seabrook (48-201-1050).......................................        0.0        0.0        0.0        0.0        0.0         0.0         0.0         0.0
Conroe (48-339-0078).........................................        0.0        0.0        0.0        0.0        0.0         0.0         0.0         0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------


      Table 2--1-Hour and 1997 Ozone Design Values for the HGB Area
------------------------------------------------------------------------
                                           1-Hour ozone     1997 ozone
                  Years                    design value    design value
                                               (ppb)           (ppb)
------------------------------------------------------------------------
2011-2013...............................             121              87
2012-2014...............................             111              80
2013-2015...............................             120              80
2014-2016...............................             120              79
2015-2017...............................             120              81
2016-2018...............................             112              78
2017-2019 (preliminary) \19\............             114              81
------------------------------------------------------------------------


[[Page 8416]]

    Comment: Earthjustice states that unhealthy levels of ozone and 
other air pollutants disproportionally affect communities of color in 
the Houston nonattainment area, including facilities that handle 
extremely hazardous substances whose emissions must be reported to the 
Toxic Release Inventory (TRI). Earthjustice includes a document with 
their submitted comments titled, ``Evaluation of Vulnerability and 
Stationary Source Pollution in Houston'' that evaluates particulate 
matter, total VOCs, and a 19-pollutant index over three time periods 
(2007-2016, 2012-2016, and 2016). Earthjustice states that the weakened 
NNSR requirements will allow more VOC emissions than otherwise would be 
permitted, and communities along the Houston Ship Channel already bear 
a disproportionate burden of VOC emissions.
    Response: The EPA appreciates the work the commenter has performed 
to evaluate potential disproportionate impacts in vulnerable 
communities; in this final action, however, we are addressing only the 
determination that the HGB area is attaining the revoked standards and 
meets the five criteria for redesignation, which leads to the 
termination of anti-backsliding measures. We note that emissions of 
hazardous air pollutants (HAPs), which are reported to the TRI, are 
regulated by other provisions of the CAA and concerns regarding those 
emissions are outside the scope of this action.\20\
---------------------------------------------------------------------------

    \20\ Additional information on HAPs, including what is being 
done to reduce HAPs, may be found at https://www.epa.gov/haps.
---------------------------------------------------------------------------

    The report referred to by the commenter examined the geographic 
distribution of 4 classes of emissions and whether certain communities 
are disproportionately impacted by these pollutants. The pollutants 
examined were Particulate Matter (PM), i.e., PM2.5 and 
PM10, VOCs and an index of 19 pollutants that are hazardous 
air pollutants. Ozone was not one of the pollutants examined. The 
approvability of this action is based on requirements for ozone and the 
revoked standards being considered here. As discussed elsewhere, 
monitors throughout the Houston area have recorded levels meeting both 
the 1 hour and 1997 8-hour standards for some time. Moreover, Texas 
will continue to have to work to reduce ozone precursors to meet the 
2008 and 2015 ozone standards. Finally, we note that the monitors 
violating the 2015 ozone standard in the Houston area are located in 
Brazoria, Galveston, Harris, and Montgomery Counties.\21\
---------------------------------------------------------------------------

    \21\ See data posted at https://www.tceq.texas.gov/cgi-bin/compliance/monops/8hr_attainment.pl.
---------------------------------------------------------------------------

    Comment: Earthjustice states that EPA arbitrarily concludes that 
relevant statutory and executive order reviews are not required for 
this rule and EPA wrongly asserts that the proposed action would only 
accomplish a revision to the Texas SIP that EPA can only approve or 
disapprove. Earthjustice states that through this rule, EPA proposes to 
change and adopt national positions regarding its authority to 
redesignate areas under CAA section 107(d)(3)(E) and terminate anti-
backsliding protections for revoked standards. Earthjustice states 
these actions are not SIP revisions and thus necessitate the statutory 
and executive order reviews EPA avoids by citing only a portion of the 
actions it is taking in this rulemaking. Earthjustice states that, in 
addition to the environmental justice concerns relevant to the review 
required by Executive Order 12898, EPA ignores other important 
considerations that are a part of rational decision-making like effects 
on children's health and other public health factors.
    Response: As stated previously, we are not in this action 
redesignating the HGB area for the two revoked NAAQS. Earthjustice has 
not provided much detail regarding which statutory and executive order 
reviews it believes are applicable and that the EPA has not addressed. 
In section V of this notice, we discuss EPA's assessment of each 
statutory and executive order that potentially applies to this action. 
We note that the introductory paragraph to section VII of the Proposal 
preamble contains a typographical error that may have caused some of 
the commenter's concern. The last sentence of that paragraph appears to 
indicate that the reason for EPA's proposed assessment that the action 
is exempt from the enumerated statutory and executive orders is solely 
that the action is a review of a SIP. However, that sentence was 
intended to be inclusive of all the reasons stated in the introductory 
paragraph, including that the approval of the request to terminate 
anti-backsliding does not impose new requirements on sources (i.e., 
``For that reason'' more appropriately would have read ``For these 
reasons'').
    With respect to the commenter's concern that EPA has not adequately 
addressed environmental justice, we do not agree that Executive Order 
12898 applies to this action because this action does not affect the 
level of protection provided to human health or the environment. In 
this action the level of protection is provided by the ozone NAAQS and 
this action does not revise the NAAQS. As noted earlier in this final 
action, the HGB area will remain designated nonattainment for the 2008 
and 2015 ozone NAAQS. The HGB area was recently reclassified as a 
Serious nonattainment area for the 2008 ozone NAAQS, and therefore the 
State must submit SIP revisions and implement controls to satisfy the 
statutory and regulatory requirements for a Serious area for the 2008 
ozone standard.\22\
---------------------------------------------------------------------------

    \22\ See 83 FR 25576 and 84 FR 44238.
---------------------------------------------------------------------------

    With respect to commenter's concern that we have not adequately 
addressed executive orders regarding children's health, we do not agree 
that Executive Order 13045 applies to this action. Executive Order 
(E.O.) 13045 applies to ``economically significant rules under E.O. 
12866 that concern an environmental health or safety risk that EPA has 
reason to believe may disproportionately affect children.'' See 62 FR 
19885, April 23, 1997. As noted in the Proposal and below in section V 
of this preamble, this rule is not ``economically significant'' under 
E.O. 12866 because it will not have ``an annual effect on the economy 
of $100 million or more or adversely affecting in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities.'' 62 FR 19885.\23\
---------------------------------------------------------------------------

    \23\ See also ``Guide to Considering Children's Health When 
Developing EPA Actions: Implementing Executive Order 13045 and EPA's 
Policy on Evaluating Health Risks to Children.'' https://www.epa.gov/children/guide-considering-childrens-health-when-developing-epa-actions-implementing-executive-order.
---------------------------------------------------------------------------

    Comment: Earthjustice states that EPA should not revise the 
attainment designations in 40 CFR 81 because it has failed to consider 
the consequences of doing so, including whether changes in the 
designations listing will affect remaining maintenance plan and other 
requirements after redesignation.
    Response: In this action, we are not revising the designations for 
the HGB area for the two revoked ozone NAAQS, and therefore the 
comments regarding consequences of changing the area's designation are 
beyond the scope of this final action. We are revising the 40 CFR part 
81 tables for the HGB area, which currently reflect the approvals of 
the area's redesignation substitutes from 2015 and 2016. For revoked 
standards, the sole purpose of the part 81 table is to help identify 
applicable anti-backsliding obligations. Therefore, we are revising the 
part 81 tables to reflect that the HGB area has met all the 
redesignation criteria for the two revoked ozone NAAQS and therefore 
anti-backsliding obligations associated

[[Page 8417]]

with those two revoked NAAQS are terminated.
    Comment: Earthjustice states that EPA arbitrarily flouts important 
considerations relevant to this rulemaking, and states that this 
action's consequences on interstate and intrastate ozone transport are 
not considered. Earthjustice states EPA failed to consider how 
redesignation will affect Texas' interstate ozone transport obligations 
under existing regulations and how redesignation of the Houston area 
will affect attainment in other Texas areas, such as San Antonio and 
Dallas, both of which struggle with existing ozone pollution and are in 
nonattainment for several standards. Earthjustice states EPA must 
consider the interstate and intrastate consequences of redesignating 
and relaxing anti-backsliding controls in the Houston area.
    Response: We are not redesignating the HGB area for the revoked 1-
hour and 1997 ozone NAAQS. We disagree that EPA is required under the 
CAA to consider the effect of this action on interstate and intrastate 
ozone transport before it may terminate the HGB area's anti-backsliding 
requirements with respect to the two revoked ozone NAAQS in question, 
and we do not agree that such considerations are important or relevant 
to this rulemaking. At the outset, we note that the State is projecting 
HGB area ozone precursor emissions will decrease, reducing the HGB 
area's impact on other areas.
    Interstate ozone transport is addressed under CAA section 
110(a)(2),\24\ and Texas' interstate transport obligations under the 
Act are not in any way altered by this action. To the extent that Texas 
has outstanding interstate ozone transport obligations under CAA 
section 110(a)(2)(D), they remain obligated to address those statutory 
requirements after finalization of this action.
---------------------------------------------------------------------------

    \24\ See ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013. To 
view the guidance, see https://www.epa.gov/sites/production/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf.
---------------------------------------------------------------------------

    The TCEQ has also proposed Serious Area attainment plans for the 
Houston and Dallas-Fort Worth (DFW) areas for the 2008 eight-hour ozone 
standard, and those submittals--including any obligation to address 
intrastate transport as necessary to attain the NAAQS--will also be 
evaluated in separate actions.
    Comment: Earthjustice states that EPA's Proposal leaves important 
modeling questions unaddressed. Earthjustice states EPA predicts that 
point source VOC emissions will remain exactly the same in 2032 and in 
all intermediate years as they were in 2014, at 77.56 tpd. In its TSD, 
EPA does not explain how it arrived at its modeling prediction and 
given the tremendous growth of industrial facilities along the Houston 
Ship Channel that are known to emit huge quantities of VOCs, it is 
difficult to see how this prediction holds. NOX emissions 
from point sources steeply increase from 95.11 to 128.77 tpd between 
2014 and 2020 and remain practically identical until 2032, but EPA 
offers no explanation for the disparity.
    Response: As described in our Proposal and TSD, EPA evaluated the 
emission inventories submitted by the State in its Maintenance Plan and 
we found the State's approach and methods of calculating the base year 
and future year EIs appropriate.\25\ We disagree that we or the State 
did not provide an explanation for holding the point source VOC 
emissions constant for the projection years for the purposes of 
demonstrating that the standard would be maintained. As TCEQ explains 
in its SIP, it was following EPA guidance (noting that emissions trends 
for ozone precursors have generally declined) and thus, for planning 
purposes, TCEQ found it reasonable to hold point source emissions 
constant, rather than show such emissions as declining.\26\ For 
projection year EIs, TCEQ designated the 2016 EI as the baseline from 
which to project future-year emissions because using the most recent 
point source emissions data would capture the most recent economic 
conditions and any recent applicable emissions controls. As TCEQ 
further describes in its SIP, TCEQ noticed that the 2014 attainment 
year VOC emissions are higher than future-year emissions projected from 
the sum of the 2016 baseline emissions plus available emission 
credits.\27\ Therefore, future point source VOC emissions were 
projected by using the 2014 values as a conservative estimate for all 
future interim years. This approach is consistent with EPA's Emissions 
Inventory Guidance document at 26.
---------------------------------------------------------------------------

    \25\ See https://www.epa.gov/moves/emissions-models-and-other-methods-produce-emission-inventories#locomotive.
    \26\ See EPA's ``Emissions Inventory Guidance for Implementation 
of Ozone and Particulate Matter National Ambient Air Quality 
Standards (NAAQS) and Regional Haze Regulations'' published May 
2017, EPA-454/b-17-002. Section 5, beginning on p. 119 of this 
Guidance document addresses Developing Projected Emissions 
Inventories. This Guidance document is available on EPA's website at 
https://www.epa.gov/air-emissions-inventories/air-emissions-inventory-guidance-documents.
    \27\ Not to be confused with the 2016 baseline and as noted 
earlier in this action, the 2014 base year EIs for NOX 
and VOC represent the first year in which the HGB area is attaining 
both the 1-hour and 1997 ozone NAAQS and thus, the 2014 EI is also 
called the attainment inventory. The 2014 attainment inventory 
provides a starting point against which to evaluate the EI levels 
estimated for future years.
---------------------------------------------------------------------------

    For point source NOX emissions, TCEQ took a different 
approach that is also conservative and fully explained in the SIP 
submittal. We disagree that there is any disparity. As explained in the 
SIP submittal some 90% of point source NOX emissions are 
covered under the Mass Emissions Cap and Trade (MECT) program.\28\ The 
2016 base year emissions were adjusted to estimate future daily 
emissions. TCEQ applied the entire MECT cap to the first interim year 
inventory (2020), which we believe is a conservative estimate. In over 
10 years of implementation of the MECT, most facilities keep their 
emissions under the cap, to maintain compliance with the allowable 
limits. For NOX emissions sources not listed in the MECT 
program, TCEQ also assumed that additional emissions would occur based 
on the possible use of emission credits, which are banked emissions 
reductions that may return to the HGB area in the future through the 
use of emission reduction credits (ERCs) and discrete emissions 
reduction credits (DERCs). All banked (i.e., available for use in 
future years) and recently-used ERCs and DERCs were added \29\ to the 
future year inventories. We believe this is a conservative estimate 
because historical use of the DERC has been less than 10 percent of the 
projected rate--including all the banked ERCs and DERCs in the 2020 
inventory assumes a scenario where all available banked credits would 
be used in 2020, which is inconsistent with past credit usage.
---------------------------------------------------------------------------

    \28\ The MECT is mandatory under the Texas SIP for stationary 
facilities that emit NOX in the HGB area which are 
subject to emission specifications in the Texas NOX rules 
at 30 TAC Sections 117.310, 117.1210, and 117.2010; and which are 
located as a site where they collectively have an uncontrolled 
design capacity to emit 10 tpy or more of NOX. The 
program sets a cap on NOX emissions and facilities are 
required to meet NOX allowances on an annual basis. 
Facilities may purchase, bank, or sell their allowances. 82 FR 
21919, May 11, 2017.
    \29\ The ERCs were divided by 1.15 before being added to the 
future year EIs to account for the NNSR permitting offset ratio for 
moderate ozone nonattainment areas. Since the area is now classified 
as a Serious ozone nonattainment area however, any ERCs actually 
used will have to be divided by 1.2. See the SIP submittal for more 
specific detail on how Texas assumed and calculated the ERC and DERC 
use for the future EI years.
---------------------------------------------------------------------------

    Despite the conservative assumptions for point source growth, the 
total emissions estimated by the State for all anthropogenic sources of 
NOX and VOC in the HGB area for 2020, 2026, and 2032 are 
lower than those estimated for

[[Page 8418]]

2014 (the attainment inventory year). Consistent with the Calcagni 
Memorandum regarding a Maintenance Demonstration, ``[a] State may 
generally demonstrate maintenance of the NAAQS by either showing that 
future emissions of a pollutant or its precursors will not exceed the 
level of the attainment inventory or by modeling to show that the 
future mix of sources and emission rates will not cause a violation of 
the NAAQS.'' Calcagni Memorandum at 4. Because the State's estimated 
future EIs for the HGB area do not exceed the 2014 attainment year EI, 
we do not expect the area to have emissions sufficient to cause a 
violation of the 1-hour or 1997 ozone NAAQS.
    In addition, NNSR offsets will continue to be required in the HGB 
area because all eight counties are also designated nonattainment, and 
currently classified as Serious, under the 2008 ozone NAAQS. The 
required NNSR offset for the HGB area at this time is 1.2:1 for sources 
emitting at least 50 tpd, consistent with the Serious area requirements 
provided in CAA section 182(c)(10).\30\ Whether a new or modified major 
source in the HGB area chooses to offset NOX or VOC or a 
combination of the two, the offsets must be made in the same eight-
county ozone nonattainment area.
---------------------------------------------------------------------------

    \30\ The HGB area is designated as a Serious ozone NAA under the 
2008 ozone NAAQS (84 FR 44238).
---------------------------------------------------------------------------

    Finally, despite population and economic growth, emissions of 
NOX and VOC in the HGB area have been decreasing since 1990. 
Emissions of NOX in the 8-county HGB area have dropped from 
approximately 1368.97 tpd (1990 base year under the 1-hour ozone NAAQS) 
to 459.94 tpd (2011 base year under the 2008 ozone NAAQS) and emissions 
of VOC have dropped from approximately 1491.65 tpd (1990 base year) to 
531.40 tpd (2011 base year).\31\ See 59 FR 55586, November 8, 1994, and 
84 FR 3708, February 13, 2019.\32\ The HGB SIP must be further revised 
to meet the emission reductions required by CAA section 182(c)(2)(B) 
for the Serious ozone nonattainment classification under the 2008 ozone 
NAAQS.\33\ This progress reflects efforts by the State, area 
governments and industry, federal measures, and others.\34\
---------------------------------------------------------------------------

    \31\ The 1990 base year includes 335.47 tpd in biogenic VOC 
emissions. Biogenic emissions, i.e., emissions from natural sources 
such as plants and trees, are not required to be included in the 
2011 base year.
    \32\ We approved the area's Reasonable Further Progress (RFP) 
plan for the Moderate ozone NAAQS under the 2008 ozone NAAQS showing 
15% emission reductions from 2011 through the attainment year 
(2017), plus an additional 3% emission reductions to meet the 
contingency measure requirement.
    \33\ The State recently proposed a SIP revision to meet RFP 
Serious area requirements for HGB with an additional average of 3% 
emission reductions from 2017 through the attainment year (2020), 
plus an additional 3% emissions reductions to meet the contingency 
measure requirement (see https://www.tceq.texas.gov/airquality/sip/dfw/dfw-latest-ozone for the State's proposed Serious area RFP). See 
also 84 FR 44238.
    \34\ See also https://www.epa.gov/clean-air-act-overview/progress-cleaning-air-and-improving-peoples-health.
---------------------------------------------------------------------------

    Comment: Earthjustice asserts that EPA must either create 
regulations to authorize termination of anti-backsliding protections 
when certain conditions are met or reverse its duly adopted, nationally 
applicable position that EPA lacks authority to redesignate areas under 
revoked standards. Earthjustice states that either action would be 
reviewable exclusively in the D.C. Circuit. Earthjustice further 
asserts that even if aspects of EPA's action constitute a locally or 
regionally applicable action that overbears the nationally applicable 
aspects of the action, Earthjustice believes that EPA's action would 
still be ``based on a determination of nationwide scope and effect'' 
(citing CAA section 307(b)(1)). Earthjustice asserts that ``EPA 
expressly proposed in its FR publication to base action on that 
determination (via either pathway),'' but also states that if a more 
specific finding and publication were necessary, that EPA is obligated 
to make the finding and publish it because EPA's action here is a 
determination of nationwide scope and effect. The commenter concludes 
that the venue for judicial review of this action therefore necessarily 
lies in the D.C. Circuit.
    Response: First, as noted earlier, the EPA is not in this action 
changing HGB's designation, so Earthjustice's comments on that point 
are beyond the scope of this final action. Second, we disagree that 
promulgation of a regulation authorizing the action taken here is 
necessary or being undertaken in this notice. As mentioned earlier in 
this final action, we believe the D.C. Circuit's decision in South 
Coast II regarding the vacatur of the redesignation substitute 
mechanism made clear that under the CAA, areas may shed anti-
backsliding controls where all five redesignation criteria are met. 
Through this final action, we are replacing our previous approvals of 
the redesignation substitutes for the HGB area for the revoked 1979 1-
hour and 1997 ozone NAAQS, because that mechanism was rejected by the 
D.C. Circuit for its failure to include all five statutory 
redesignation criteria. Per the D.C. Circuit's direction, this action 
examines all five criteria, finds them to be met in the HGB area, and 
terminates the relevant anti-backsliding obligations for the HGB area, 
thereby replacing the prior invalid approvals for the HGB area. We do 
not agree that given the circumstances here, the parties must wait for 
EPA to promulgate a national regulation codifying what the D.C. Circuit 
has already indicated the CAA allows before we may replace the 
redesignation substitutes for the HGB area.
    As such, we do not agree that this action is reviewable exclusively 
in the D.C. Circuit. Under CAA section 307(b)(1),

A petition for review of action of the Administrator in promulgating 
[certain enumerated actions] or any other nationally applicable 
regulations promulgated, or final action taken, by the Administrator 
under this chapter may be filed only in the United States Court of 
Appeals for the District of Columbia. A petition for review of 
[certain enumerated actions] or any other final action of the 
Administrator under this chapter . . . which is locally or 
regionally applicable may be filed only in the United States Court 
of Appeals for the appropriate circuit. Notwithstanding the 
preceding sentence a petition for review of any action referred to 
in such sentence may be filed only in the United States Court of 
Appeals for the District of Columbia if such action is based on a 
determination of nationwide scope or effect and if in taking such 
action the Administrator finds and publishes that such action is 
based on such a determination.

To the extent the commenter is asserting otherwise, we do not agree 
that this is a ``nationally applicable'' action under CAA section 
307(b)(1). This final action approves a request from the State of Texas 
to find that the State has met all five of the statutory criteria for 
redesignation under CAA section 107(d)(3)(E) for the HGB area, it 
approves the submitted CAA section 175A(d) maintenance plan for the HGB 
area into the Texas SIP, and it approves the State's submitted 
equivalent alternative program addressing fees under CAA section 185 
for the HGB area. The legal and immediate effect of the action 
terminates anti-backsliding controls for only the HGB area with respect 
to two revoked NAAQS and amends the 40 CFR part 81 tables accordingly 
for only the HGB area. Nothing in this action has legal effects in any 
area of the country outside of the HGB area or Texas on its face. See 
Dalton Trucking, Inc. v. EPA, 808 F.3d 875, 881 (D.C. Cir. 2015) (``To 
determine whether a final action is nationally applicable, `this Court 
need look only to the face of the rulemaking, rather than to its 
practical effects.' '' (internal citations omitted)). The fact that 
this is

[[Page 8419]]

the first area in the country for which EPA will have approved 
termination of anti-backsliding per CAA requirements after South Coast 
II does not entail that the action itself is ``nationally applicable.''
    Earthjustice next contends that even if it is true that EPA's final 
action is not nationally applicable but is locally or regionally 
applicable, that judicial review of this action should still reside in 
the D.C. Circuit because EPA's action is based on a determination of 
nationwide scope or effect. The commenter alleges that ``EPA has 
expressly proposed in its FR publication to base action on that 
determination (via either pathway).'' This is plainly untrue. Nowhere 
in the Proposal or in this final action did EPA make a finding that the 
action is based on a determination of nationwide scope or effect. The 
requirements under CAA section 307(b)(1) that would allow for review of 
a locally or regionally applicable action in the D.C. Circuit--i.e., 
that EPA makes a finding that the action is based on a determination of 
nationwide scope or effect and that EPA publishes such a finding--have 
not been met. See Dalton Trucking, 808 F.3d at 882.
    Comment: The TCEQ states that Table 1 in the Proposal (84 FR 22093, 
22095) incorrectly lists the preliminary 2016-2018 1-hour ozone design 
value as 110 parts per billion (ppb) and the design value should be 
updated to 112 ppb.
    Response: We agree and have updated the data (see Table 2) in this 
rulemaking action.
    Comment: TCEQ, Baker Botts, and TXOGA submitted comments supporting 
our alternative Proposal to redesignate the HGB area to attainment for 
the revoked 1-hour and 1997 ozone standards.
    Response: After carefully considering comments on this issue, we 
continue to believe that we cannot redesignate areas to attainment for 
the revoked ozone standards (80 FR 12264, 12296-97, 12304-05, March 6, 
2015). When we revoked the ozone standards, we also revoked the 
designations for those standards (69 FR 23951, 23969-70, April 30, 2004 
and 80 FR 12264, 12287, March 6, 2015). Therefore, the HGB area has no 
designation under the 1-hour or 1997 ozone NAAQS that can be changed 
through redesignation as governed by CAA section 107(d)(3)(E). Thus, we 
are not redesignating the HGB area to attainment for the revoked ozone 
standards. Where we find an area has met the requirements of CAA 
section 107(d)(3)(E), we can and believe we should terminate anti-
backsliding requirements that are carried with these revoked standards.
    Comment: The TCEQ stated that our past failure to provide for a 
legally valid mechanism for termination of anti-backsliding obligations 
for revoked standards has created uncertainty and our reluctance to 
redesignate for the revoked standards creates severe economic 
consequences for the public, regulated industry, and states. TCEQ added 
that (1) certainty on the issue of how the EPA must act to remove anti-
backsliding requirements is an absolute necessity for states, 
potentially impacted regulated businesses, and citizens and (2) 
continued implementation of programs required for revoked, less 
stringent standards is costly and takes resources away from states and 
localities that are necessary to meet more stringent standards.
    Response: We understand the value of regulatory certainty. We also 
understand that there is a cost for implementing required programs for 
revoked, less stringent standards. We have endeavored to provide 
flexibility to states on implementation approaches and control 
measures. The D.C. Circuit has upheld our revocation of previous ozone 
standards as long as sufficient anti-backsliding measures are 
maintained. In South Coast II, the court was clear that anti-
backsliding measures could be shed if all five requirements for 
redesignation in CAA section 107(d)(3)(E) had been met. We are finding 
here that Texas has met all redesignation criteria necessary for 
termination of the anti-backsliding measures for the HGB area.
    Comment: TCEQ, Baker Botts, and TXOGA (``Commenters'') state that 
(1) we continue to have authority to redesignate areas from 
``nonattainment'' to ``attainment'' post-revocation of a NAAQS; and (2) 
if we determine we do not have authority to redesignate areas to 
attainment post-revocation, we clearly have authority to determine that 
an area has met all redesignation requirements necessary for 
termination of anti-backsliding requirements. Commenters state that EPA 
should redesignate the Houston area to attainment under the revoked 1-
hour and 1997 ozone NAAQS. Commenters state that EPA provides no 
statutory basis not to redesignate the area under these NAAQS. 
Commenters state that the D.C. Circuit recently held that EPA must 
continue to revise an area's classification under a revoked standard 
should the area fail to timely attain, and that it is not clear why the 
D.C. Circuit's holding as to classifications should not be extended to 
designations. Commenters encourage EPA to determine that it also has 
the authority to, and should, revise the listings in Part 81 of the 
Code of Federal Regulations to show the HGB area as an attainment area 
under the revoked 1-hour and 1997 ozone NAAQS. Commenters contend that 
such an approach will more fully clarify that the area has satisfied 
all requirements with respect to the revoked NAAQS, mitigating the 
potential for future challenges or confusion due to uncertainty 
regarding the area's attainment status.
    Response: EPA disagrees with Commenters regarding our authority to 
redesignate an area under the revoked 1-hour and 1997 ozone NAAQS. As 
explained above, in revoking both the 1-hour and 1997 ozone standards, 
EPA revoked the associated designations under those standards and 
stated we had no authority to change designations. See 69 FR 23951, 
April 30, 2004, 80 FR 12264, March 6, 2015, and NRDC v. EPA, 777 F.3d 
456 (D.C. Cir. 2014) (explaining that EPA revoked the 1-hour NAAQS ``in 
full, including the associated designations'' in the action at issue in 
South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. 
Cir. 2006) (``South Coast I'')). The recent D.C. Circuit decision 
addressing reclassification under a revoked NAAQS did not address EPA's 
interpretation that it lacks the ability to alter an area's designation 
post-revocation of a NAAQS. Moreover, the court's reasoning for 
requiring EPA to reclassify areas under revoked standards was that a 
reclassification to a higher classification is a control measure that 
constrains ozone pollution by imposing stricter measures associated 
with the higher classification. The same logic does not apply to 
redesignations, because redesignations do not impose new controls and 
can provide areas the opportunity to shed nonattainment area controls, 
provided doing so does not interfere with maintenance of the NAAQS. 
Therefore, we do not think it follows that the EPA is required to 
statutorily redesignate areas under a revoked standard simply because 
the court held that the Agency is required to continue to reclassify 
areas to a higher classification when they fail to attain. However, 
consistent with the South Coast II decision, we do have the authority 
to determine that an area has met all the applicable redesignation 
criteria for a revoked ozone standard and terminate the remaining anti-
backsliding obligations for that standard. We are therefore revising 
the tables in 40 CFR part 81 to reflect that the HGB area has attained 
the revoked 1979 1-hour and revoked 1997 8-hour NAAQS, and that all 
anti-backsliding

[[Page 8420]]

obligations with respect to those two NAAQS are terminated.
    Comment: TCEQ stated that when we began stating that we no longer 
make findings of failure to attain or reclassify areas for revoked 
standards, we provided no rationale supporting why we would no longer 
do so.
    Response: As noted above, in the Phase I rule to implement the 1997 
ozone standard, we revoked the 1-hour NAAQS and designations for that 
standard (see 69 FR 23951, 23969-70, April 30, 2004). Accordingly, 
there was neither a 1-hour standard against which to make findings for 
failure to attain nor 1-hour nonattainment areas to reclassify. We also 
explained that it would be counterproductive to continue to impose new 
obligations with respect to the revoked 1-hour standard given on-going 
implementation of the newer 8-hour 1997 NAAQS. Id. at 23985. We 
recognize that subsequent court decisions, such as the South Coast II 
decision, have affected our view. The South Coast II decision vacated 
our waiver of the statutory attainment deadlines associated with the 
revoked 1997 ozone NAAQS, for areas that fail to meet an attainment 
deadline for the 1997 ozone standard, and we are determining how to 
implement that decision going forward.
    Comment: TCEQ commented that if we interpreted revocation of ozone 
standards as limiting our authority to implement all statutory rights 
and obligations, including the rights of states to be redesignated to 
attainment, it would cause an absurd result: i.e., implementing anti-
backsliding measures in perpetuity. The commenter added that it would 
subvert one of the foundational principles of the CAA--restricting the 
right of states to be freed from obligations that apply to 
nonattainment areas upon the states achieving the primary purpose of 
Title I of the CAA--to attain the NAAQS.
    Response: The ``absurd result'' noted by the commenter is that an 
area would need to implement anti-backsliding measures in perpetuity. 
Through this action we are terminating anti-backsliding controls for 
the HGB area upon a determination that the five statutory criteria of 
CAA section 107(d)(3)(E) have been met. Therefore, although we are not 
redesignating the HGB area to attainment for the revoked ozone 
standards, the ``absurd result'' noted by the commenter does not 
remain.
    The EPA does believe it is appropriate for states to be freed from 
anti-backsliding requirements in place for the revoked NAAQS in certain 
circumstances, and we believe the court in South Coast II was clear 
that this could be done if all the CAA criteria for a redesignation had 
been met.
    Comment: TCEQ commented that the CAA makes no distinction between 
revoked or effective standards regarding EPA's authority to 
redesignate. TCEQ also commented that reading the CAA section granting 
authority for designations generally, it is apparent that Congress 
intended the same procedures be followed regardless of the status of 
the NAAQS in question. TCEQ added that nothing in CAA section 107 
creates differing procedures when we revoke a standard or qualifies our 
mandatory duty to act on redesignation submittals from states.
    Response: None of the substantive provisions of the CAA make 
distinctions between revoked and effective NAAQS and the redesignation 
provision in section 107 is no different. Nonetheless, as noted above, 
at the time that we revoked the ozone NAAQS in question, we also 
revoked all designations associated with that NAAQS. We therefore do 
not think a statutory redesignation is available for an area that no 
longer has a designation. However, in South Coast II, the D.C. Circuit 
found that the CAA allows areas under a revoked NAAQS to shed anti-
backsliding controls if the statutory redesignation criteria are met.
    Comment: The TCEQ suggests that the EPA should expand upon the 
rationale provided in our Proposal for our decision to take no action 
on the maintenance motor vehicle emission budgets (MVEBs) related to 
the 1-hour and 1997 ozone NAAQS.
    Response: The conformity discussion in our May 21, 2012 rulemaking 
(77 FR 30160) to establish classifications under the 2008 ozone NAAQS 
explains that our revocation of the 1-hour standard under the 1997 
ozone Phase I implementation rule and the associated anti-backsliding 
provisions were the subject of the South Coast I litigation (South 
Coast Air Quality Management District, 472 F.3d at 882). The Court in 
South Coast I affirmed that conformity determinations need not be made 
for a revoked standard. Instead, areas would use adequate or approved 
MVEBs that had been established for the now revoked NAAQS in 
transportation conformity determinations for the new NAAQS until the 
area has adequate or approved MVEBs for the new NAAQS. As explained in 
our May 16, 2019 proposal, the HGB area already has NOX and 
VOC MVEBs for the 2008 ozone NAAQS, which are currently used to make 
conformity determinations for both the 2008 and 2015 ozone NAAQS for 
transportation plans, transportation improvement programs, and projects 
according to the requirements of the transportation conformity 
regulations at 40 CFR part 93.\35\
---------------------------------------------------------------------------

    \35\ Transportation Conformity Guidance for the South Coast II 
Court Decision, EPA-420-B-18-050. November 2018, available on EPA's 
web page at https://www.epa.gov/state-and-local-transportation/policy-and-technical-guidance-state-and-local-transportation.
---------------------------------------------------------------------------

    The TCEQ offers its own basis to expand the rationale for EPA's 
action by citing the transportation conformity regulations at 40 CFR 
93.109(c), which provides that a regional emissions analysis for 
conformity is only required for a nonattainment or maintenance area 
until the effective date of revocation of the applicable NAAQS. The 
TCEQ concludes that this sufficiently justifies EPA's determination not 
to act on the MVEBs in this SIP submittal because the effective date of 
revocation for both the 1-hour and 1997 ozone NAAQS has passed, and 
therefore a regional emissions analysis for conformity is no longer 
required for these NAAQS in the HGB area. However, EPA notes that 40 
CFR 93.109 represents the criteria and procedures for determining 
conformity in cases where a determination is required. As previously 
explained, the HGB area is not required to demonstrate conformity under 
the revoked 1-hour and 1997 ozone NAAQS, hence 40 CFR 93.109(c) is not 
an applicable rationale for the HGB area.
    Comment: TCEQ stated that we have the authority to, and should, 
revise the designations listing in 40 CFR 81 to better reflect the 
status of applicable anti-backsliding obligations for the areas.
    Response: We believe that we have the authority to revise the 
tables in 40 CFR 81 to better reflect the status of applicable anti-
backsliding obligations, particularly because those tables currently 
reflect the invalid redesignation substitutes that this final action is 
replacing. We are making ministerial changes to the tables for the 1-
hour and 1997 ozone standards in 40 CFR 81.344 to better reflect the 
status of applicable anti-backsliding obligations for the HGB area.

C. Comments on the HGB Section 185 Fee Equivalent Alternative Program

    Comment: Comments were received from Earthjustice and an anonymous 
commenter that the CAA does not allow for approval of any alternative 
program for the CAA section 185 fee program. Earthjustice states that 
by its plain terms CAA section 172(e) applies directly only to the 
circumstance where EPA weakens a standard and that is not the 
circumstance here. They further state

[[Page 8421]]

that the rational interpretation of section 172(e) for when EPA 
strengthens a standard is that it bars weakening of protections but 
does not authorize EPA to depart from the program Congress 
unambiguously required. The anonymous commenter also stated that EPA's 
2010 guidance pertaining to section 185 fee programs is illegal as the 
CAA does not allow for any alternative methods.
    Response: CAA section 172(e) provides that when the Administrator 
relaxes a NAAQS, the EPA must ensure that all areas which have not 
attained that NAAQS maintain ``controls which are not less stringent 
than the controls applicable to areas designated nonattainment before 
such relaxation.'' EPA agrees with the commenter that section 172(e) 
does not apply directly to supplanting one NAAQS with a stronger 
standard, but the EPA has long applied the principles of CAA section 
172(e) following revocation of ozone standards. See 80 FR 12264 (March 
6, 2015) (revoking the 1997 ozone NAAQS); 69 FR 23951 (April 30, 2004) 
(revoking the 1979 1-hour ozone NAAQS). Because EPA has historically 
applied the principles of section 172(e) to define what are reasonable 
anti-backsliding controls following revocation of the 1-hour and 1997 
standards, we believe it is reasonable to continue to look to that 
provision to determine that it is reasonable to provide for equivalent 
alternative programs to address anti-backsliding requirements. For the 
past ten years, the EPA has interpreted the principles of section 
172(e) as authorizing the Administrator to approve on a case-by-case 
basis and through rulemaking, alternatives to the applicable CAA 
section 185 fee programs associated with a revoked ozone NAAQS that are 
``not less stringent.'' See generally 80 FR 12264, 12306 (March 6, 
2015); 84 FR 12511 (April 2, 2019) (approval of a section 185 fee 
equivalent alternative program for the New York portion of the New 
York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area for 
the 1-hour ozone NAAQS); 77 FR 74372 (December 14, 2012) (same for the 
South Coast nonattainment area); 77 FR 50021 (August 20, 2012) (same 
for the San Joaquin Valley nonattainment area); and the January 5, 2010 
EPA guidance on developing CAA section 185 fee programs for the 1-hour 
ozone standard (2010 guidance).\36\ EPA's ability to approve section 
185 fee equivalent alternative programs has been affirmed by the United 
States Court of Appeals for the Ninth Circuit in Natural Res. Def. 
Council v. EPA, 779 F.3d 1119 (9th Cir. 2015) (finding that ``[b]ecause 
EPA reasonably interpreted CAA Sec.  172(e) to give it authority to 
approve programs that are alternative to, but not less stringent than, 
Sec.  185 fee programs, EPA's approval of . . . such an alternative 
program, after reasoned consideration and notice and comment procedure 
regarding [the rule's] stringency and approach to fee collecting, was 
proper.'').
---------------------------------------------------------------------------

    \36\ ``Guidance on Developing Fee Programs Required by Clean Air 
Act Section 185 for the 1-hour Ozone NAAQS'', January 5, 2010 
memorandum from Stephen D. Page, Director, EPA Office of Air Quality 
Planning and Standards, available at: https://www.epa.gov/sites/production/files/2015-09/documents/1hour_ozone_nonattainment_guidance.pdf.
---------------------------------------------------------------------------

    To the extent the anonymous commenter is challenging the 2010 
guidance document itself, that is outside the scope of this action. 
Although the 2010 guidance pertaining to section 185 fee programs was 
previously vacated and remanded by the D.C. Circuit, the court's 
holding was based on procedural grounds. The court did not adversely 
rule on the permissibility of equivalent alternative programs, stating 
``neither the statute nor our case law obviously precludes that 
alternative.'' NRDC v. EPA, 643 F.3d 311, 321 (D.C. Cir. 2011).
    Comment: Earthjustice commented that even if EPA could allow an 
alternative fees program, EPA cannot approve the HGB alternative 
program because it is less stringent than what the CAA requires as it 
allows impermissible VOC and NOX baseline aggregation. 
Earthjustice alleges that this is less stringent than CAA section 185, 
which requires each major stationary source of VOCs to reduce emissions 
or pay a fee. Earthjustice comments that section 182(f) similarly 
extends an independent fee obligation to each major stationary source 
of NOX. Earthjustice further alleges that the HGB program 
allows aggregation of emissions across sources in different locations 
but under common control, which is less stringent than direct 
application of section 185. Earthjustice also commented that VOC and 
NOX baseline aggregation creates serious environmental 
justice issues. The commenter noted under the HGB program major sources 
can offset higher VOC emissions by reducing NOX emissions 
and that among VOCs are highly toxic compounds, like the carcinogen 
benzene.
    Response: We do not believe anything in the Act precludes 
provisions that allow aggregation of VOC and NOX emissions 
in calculating a source's baseline emissions. CAA section 185 expressly 
applies only to VOC, but section 182(f) extends the application of this 
provision to NOX, by providing that ``plan provisions 
required under [subpart D] for major stationary sources of [VOC] shall 
also apply to major stationary sources . . . of [NOX].'' 
\37\ Nothing in the language of CAA sections 182(f) and 185 states that 
VOC and NOX cannot be aggregated in the baseline calculation 
for a source and the commenters have not provided a reasoned 
explanation for why this would be so.
---------------------------------------------------------------------------

    \37\ Under CAA section 182(f) areas may obtain a 
``NOX waiver'' from these requirements, but such a waiver 
does not exist for the HGB area.
---------------------------------------------------------------------------

    The overall goal of subpart 2 of Part D of Title 1 is to bring 
areas into attainment of the ozone standard. Both VOCs and 
NOX are precursors in the formation of ozone and reductions 
of both are beneficial to reducing ozone in the HGB area. Therefore, we 
believe it is reasonable that Texas provided flexibility in 
establishing the baseline to allow aggregation of the pollutants.
    With regard to aggregating emissions among major sources in 
different locations but under common control, this provides for some 
consistency with the HGB attainment plan for the 1-hour ozone standard 
(71 FR 52670, September 6, 2006). The 1-hour ozone plan achieved very 
significant reductions through Cap and Trade Programs for 
NOX and for HRVOCs. (As noted earlier, HRVOCs react quickly 
to form ozone, thus making them important to control with regard to the 
1-hour ozone standard.) These cap and trade programs allowed sources to 
trade NOX and HRVOCs allowances amongst themselves, 
providing the flexibility for more controls to be applied to one source 
to offset less controls applied to another source. Overall, the Cap and 
Trade Program for NOX was designed to achieve a nominal 80% 
reduction in area-wide point source NOX emissions. The HRVOC 
Cap and Trade Program also achieved significant reduction of these 
emissions. The flexibility provided by these emissions trading programs 
was important to the success of the 1-hour ozone plan in achieving its 
aggressive goals to significantly reduce ozone levels and attain the 1-
hour ozone standard. Given our prior SIP approval of the HGB area Cap 
and Trade Programs, which helped to achieve significant ozone emission 
reductions and eventual attainment of the 1-hour standard in the area, 
it is reasonable to approve the HGB equivalent alternative section 185 
fee program that allows for similar aggregation of emissions from 
sources in different locations but under common control.

[[Page 8422]]

    With respect to the commenter's concern that baseline aggregation 
could result in higher VOC emissions that include toxic compounds, the 
CAA's provisions for implementing the ozone NAAQS do not directly 
address emissions of toxic VOCs. As noted above, nothing in the CAA 
prohibits the aggregation of VOC and NOX emissions in 
establishing the baseline under section 185. Our approval or 
disapproval of the HGB equivalent alternative section 185 fee program 
considers whether the program is as stringent for the purposes of ozone 
control as a section 185 fee program. While the CAA's NAAQS provisions 
do not directly address emissions of toxic VOCs, other CAA provisions 
address toxic VOCs. See CAA section 112.
    Comment: Earthjustice commented that the HGB alternative program is 
less stringent than what the CAA requires as it creates no new 
incentives for reducing emissions and uses programs that are already 
part of the Texas SIP for the HGB area. With respect to the Texas 
Emissions Reduction Plan (TERP), the commenter cited to a May 11, 2017 
EPA action approving 30 TAC 101.357 (Use of Emission Reductions 
Generated from the Texas Emissions Reduction Plan (TERP)) for the HGB 
area, in which we stated that HGB ``[s]ite owners or operators unable 
to meet [emissions limitations in a cap and trade program] and desiring 
to use TERP emission reductions for compliance relief, can petition the 
TCEQ Executive Director for a determination of technical 
infeasibility'' (82 FR 21919, 21983). With respect to Low Income Repair 
Assistance Program (LIRAP), the commenter cited to an October 7, 2016 
EPA action in which we stated ``[a]lthough the LIRAP is not required by 
the CAA, certain provisions relating to the program fees have been 
approved into the Texas SIP to allow for full implementation of the 
State's [vehicle inspection and maintenance] program'' (81 FR 69679).
    Response: In the HGB equivalent alternative section 185 fee 
program, fees for TERP and LIRAP collected in the HGB area from on-road 
and off-road mobile sources are used to offset the point source fee 
obligation. The TERP program was and is designed to accelerate the 
achievement of NOX reductions by repowering or retrofitting 
diesel equipment that would otherwise operate for many years before 
being replaced with new low emitting equipment. The TERP program was 
established by the Texas Legislature in 2001 and is approved in the 
Texas SIP as an economic incentive program (70 FR 48647, August 19, 
2005).\38\ Texas relied upon reductions from the TERP program in the 
HGB 1-hour ozone SIP submitted December 17, 2004 and approved in 2006 
(70 FR 52670, September 6, 2006). Based on the money allocated to TERP 
through 2007, the State committed in the 1-hour ozone attainment 
planning SIP that 38.8 tpd of emission reductions would be achieved by 
the TERP program before the 1-hour attainment date. The emission 
reductions were achieved through issuance of grants to equipment owners 
and operators to implement projects by 2007. While the State has 
continued to allocate money to the TERP after the 1-hour ozone NAAQS 
attainment date of 2007, the money goes to projects whose emissions 
reductions are surplus to the 1-hour ozone attainment demonstration, 
i.e., Texas has not otherwise taken credit for these emission 
reductions in the 1-hour ozone NAAQS nonattainment planning (70 FR 
52670, 52677). The continuation of the TERP program after 2007 was not 
required under the previously approved HGB 1-hour ozone standard SIP 
and any funds collected and resulting emission reductions achieved 
after 2007 are surplus to what was required under the 1-hour ozone 
standard attainment SIP. As there was no requirement to continue the 
TERP program after 2007, we believe that the HGB equivalent alternative 
section 185 fee program can take credit for continued funding of, and 
emissions reductions creditable to, the TERP program.
---------------------------------------------------------------------------

    \38\ See ``Texas Emissions Reduction Plan Biennial Report (2017-
2018), Report to the 86th Texas Legislature, December 2018, SFR-079/
18''. The document is available at: https://www.tceq.texas.gov/assets/public/comm_exec/pubs/sfr/079-18.pdf.
---------------------------------------------------------------------------

    As explained in the prior paragraph, the 1-hour ozone SIP does not 
take credit for any funds collected or emission reductions achieved 
after 2007. In the May 11, 2017 EPA SIP action that the commenter 
cites, we approved the State's rule that under limited conditions the 
Texas SIP does allow for a facility in the HGB area to pay $75,000 per 
ton of NOX to the TERP fund in lieu of reducing 
NOX emissions in the HGB MECT (30 TAC 101.357). This is not 
part of the approved HGB 1-hour ozone standard attainment 
demonstration, however. We do note that such payments would not affect 
calculation of the facility's section 185 fee obligation which is based 
on a facility's actual emissions.
    The LIRAP is a voluntary program designed to facilitate repair or 
replacement of vehicles that did not pass the inspection and 
maintenance (I/M) test by providing funding to eligible vehicle owners. 
As such, it could improve timely compliance with the I/M program. 
Consistent with the I/M program implemented in the HGB area, vehicles 
must comply with the applicable vehicle emissions I/M requirements in 
order to pass the inspection. These I/M requirements apply regardless 
of whether the vehicle operator is eligible for the LIRAP. The LIRAP 
was not included as a control measure relied on in the attainment 
demonstration for the 1-hour ozone standard in the HGB area and 
therefore is not part of the SIP for the HGB area. In the October 7, 
2016 action that the commenter cites, we were referring to EPA approval 
of LIRAP provisions for Travis and Williamson Counties. Specifically, 
the footnote for the sentence that the commenter cites refers to a 
final rule published August 8, 2005 (70 FR 45542). In that rule, we 
approved into the SIP provisions to implement the LIRAP as a voluntary 
program for Travis and Williamson Counties in the Austin-Round Rock 
area. We did note in our October 7, 2016 Federal Register action that 
LIRAP is a voluntary program that any county participating in the Texas 
vehicle I/M program may elect to implement in order to enhance the 
objectives of the Texas I/M program (81 FR 69679, 69680). In a later 
action finalizing approval of the LIRAP removal in the Austin-Round 
Rock area, we noted that the State's LIRAP implementation rules for the 
HGB area and other ozone nonattainment areas found at 30 TAC 114 
Subchapter C, Division 2 adopted by TCEQ created a voluntary program 
that could be implemented within the vehicle I/M areas in Texas ozone 
nonattainment areas and are not part of the approved Texas SIP (84 FR 
50305, 50306, September 25, 2019).
    The funds provided in and the implementation of the TERP and LIRAP 
on-road and off-road mobile source programs were additional to what 
would have occurred in the previously-approved 1-hour ozone standard 
SIP in the HGB area after the missed attainment deadline. Therefore, we 
disagree that the HGB equivalent alternative section 185 fee program 
created no new funding and emission reductions that can be counted in 
determining that the HGB alternative program is in fact equivalent to 
direct application of CAA section 185.
    In sum, the HGB equivalent alternative section 185 fee program for 
the 1-hour ozone standard does not rely on programs or emissions 
reductions already required by the applicable 1-hour ozone SIP.

[[Page 8423]]

    Comment: Earthjustice commented that the HGB alternative section 
185 fee equivalent program irrationally focuses on mobile source 
programs for section 185 fee offsets given that a significant 
percentage of daily VOC and NOX emissions are attributable 
to point sources, rather than mobile sources. The commenter 
acknowledges that EPA's previously-approved South Coast fee equivalent 
alternative program focused on mobile sources, and states that mobile 
sources accounted for 80% of pollution in the air district. The 
commenter alleges that targeting mobile source emissions in the HGB 
area reaches only a small amount of ozone precursor emissions and does 
not achieve the emissions reductions envisioned by CAA section 185.
    Response: EPA has consistently provided that an alternative program 
may be found to be equivalent to direct application of section 185 if 
the state can demonstrate that expected fees and/or emissions 
reductions directly attributable to application of section 185 is 
comparable to or exceeded by the expected fees and/or emissions 
reductions from the proposed alternative program. See the 2010 
guidance, 77 FR 50021 (August 20, 2012), 77 FR 74372 (December 14, 
2012) and 84 FR 12511 (April 2, 2019). The commenter fails to point to 
anything in the Clean Air Act or the legislative history that indicates 
Congress intended for the collection of the fees from the point sources 
to be used for point sources. In fact, both are silent are how the 
collected fees are to be used. Therefore, we believe it is reasonable 
that, as long as either an equivalent amount of fees are collected or 
an equivalent amount of emissions are reduced, or some combination 
thereof, an alternative program that includes such fees or emission 
reductions from mobile sources is ``no less stringent'' than direct 
application of section 185 in line with the principles of CAA section 
172(e).
    In addition, we dispute the commenter's contention that reduction 
of emissions from mobile sources is not important in the HBG area. 
Tables 2, 3 and 4 in our Proposal provide point source, on-road mobile 
source and off-road mobile source emission inventories for the years 
2011, 2014, 2020, 2026 and 2032 (84 FR 22093, 22097-98, May 16, 2019). 
As discussed previously, reductions in NOX emissions and a 
small subset of VOC emissions termed HRVOCs have been determined to be 
the most effective means of reducing ozone levels in the Houston area. 
As a result, it is important to reduce emissions of NOX from 
mobile sources. While emissions from mobile sources (on-road and off-
road) are expected to continue decreasing, these emissions were and 
continue to be a significant source of ozone precursors in the HGB 
area, particularly with respect to NOX. In 2011 (a year in 
which the area had not attained the 1-hour ozone standard), mobile 
sources accounted for 72% of the area's NOX emissions. In 
2014 (a year in which the area maintained the 1-hour ozone standard), 
mobile sources accounted for 65% of the area's NOX 
emissions. In 2020, it is projected that mobile sources will account 
for 48% of the area's NOX emissions. As (1) an objective of 
the HGB equivalent alternative section 185 fee program was to bring 
about attainment of the 1-hour ozone standard and (2) on-road and non-
road mobile sources were a significant portion of the emissions 
preventing attainment of the 1-hour ozone standard, we believe that a 
program focused on fees and emission reductions from mobile source 
programs is rational and can be considered equivalent to section 185.
    Comment: Earthjustice commented that the HGB alternative section 
185 fee equivalent program unlawfully and arbitrarily departs from the 
CAA by substituting publicly funded dollars for privately paid fees. 
The commenter further stated that ``EPA provides no explanation (and 
there is none) of how it is equally stringent to shift a new obligation 
to pay fees away from the producers of harmful emissions to the broad 
citizenry, which already funds TERP and LIRAP.''
    Response: We disagree that the HGB equivalent alternative section 
185 fee program unlawfully and arbitrarily departs from the CAA by 
substituting publicly funded dollars for privately paid fees. The 
commenter does not explain why this distinction is significant and why 
it should lead EPA to the conclusion that Texas's program is not at 
least as stringent as a 185 program. As noted above, we have 
historically considered an equivalent alternative program to be 
permissible if the state can demonstrate that expected fees and/or 
emissions reductions directly attributable to applicable of section 185 
would be equal to or exceeded by the expected fees and/or emissions 
reductions from the proposed alternative program. The Texas program is 
equally stringent as it provides greater or equivalent fees and 
emission reductions than those that would be provided by direct 
application of section 185.
    We also note that there is no requirement in the CAA that penalty 
fees collected from major stationary sources under section 185 be used 
by the State for control of air pollution. However, in the HGB 
equivalent alternative section 185 fee program, mobile source program 
fees are used to fund emission reductions in the HGB area. These 
emission reductions helped the area attain and maintain the 1-hour 
ozone standard.
    Comment: Earthjustice commented that carry over credits, which 
allow for accumulation of credits from mobile source programs from 
previous years to offset stationary source fees in future years, 
violate section 185 of the CAA. The commenter further stated that the 
offset and carry over features of the HGB alternative program ensure 
that fees will never be paid by Houston area stationary sources; the 
fee obligation is an annual obligation, not one that may be met by a 
one-time payment and accounting tricks; and that EPA has not explained 
how carry over credits are equally stringent as what the CAA requires.
    Response: The commenter fails to explain the significance of annual 
accounting as opposed to ensuring, as EPA has done here, that an 
overall equivalent amount of fees and/or emissions reductions have been 
achieved over the lifetime of the equivalent alternative program. Under 
the Texas program, fees collected from mobile sources in the HGB area 
for emission reduction projects go into a Fee Equivalency Account. 
Money in this account then is used to offset the annual fee obligation 
of major stationary sources. Any surplus in the Fee Equivalency Account 
in one year is available to be used (or carried over) to offset the 
next year's annual fee obligation of major stationary sources. If there 
are insufficient funds in this account, major stationary sources would 
need to make up the difference.
    Comment: Earthjustice commented that the HGB alternative section 
185 fee program is not enforceable, including by citizens; the CAA 
requires SIPs to be enforceable; and to ensure such enforceability, EPA 
must require Texas to report and publicly post information about 
equivalency, track the efficacy of emission reduction projects funded 
by the putative alternative fee source and report and make publicly 
available such information.
    Response: As implemented in 30 TAC Chapter 101 and explained in our 
TSD, the HGB equivalent alternative section 185 fee program is 
enforceable. The program was adopted by the appropriate State authority 
and is binding on subject sources. Texas submitted the program to EPA 
and through this action we are incorporating the program into the

[[Page 8424]]

Texas SIP. The program is explicit and clear as to what is required 
when it is in operation: i.e., that point sources must provide TCEQ 
with emissions reports and, if appropriate, pay fees while the program 
is in operation. The public has the right to request and view 
information on the HGB equivalent alternative section 185 program under 
the Texas Public Information Act.\39\ TCEQ--using information that is 
available to the public (including EPA) under the Texas Public 
Information Act--provided a report summarizing the implementation of 
the HGB alternative section 185 fee equivalent program over its 
duration. The report is available in the electronic docket for this 
action (https://www.regulations.gov/document?D=EPA-R06-OAR-2018-0715-0015). The TCEQ report found that the TERP fees collected for emission 
reduction projects in the HGB area for on-road mobile and off-road 
mobile sources more than fully offset the fees that would have been 
collected from major point sources under a direct application of 
section 185.
---------------------------------------------------------------------------

    \39\ See http://foift.org/resources/texas-public-information-act/ and Chapter 552 of the Texas Government Code at https://statutes.capitol.texas.gov/SOTWDocs/GV/htm/GV.552.htm.
---------------------------------------------------------------------------

    Comment: Earthjustice commented that rather than take no action, 
EPA should disapprove the aspects of the HGB alternative program that 
(1) end the program with an attainment finding (30 TAC 101.118(a)(2)) 
and (2) hold the program in abeyance after three consecutive years of 
data demonstrating that the 1-hour standard was not exceeded (30 TAC 
101.118(b)). Baker Botts and TXOGA commented that rather than take no 
action, we should approve 30 TAC 101.118(b).
    Response: As stated in the Proposal, we have decided not to take 
action on these aspects of the program at this time. Given that we did 
not issue a Proposal to approve or disapprove the aspects of the HGB 
equivalent alternative section 185 fee program cited by the commenters, 
we cannot now take final action on these portions of the HGB program. 
Any EPA action on the listed aspects of the HGB equivalent alternative 
section 185 fee program would occur through a separate rulemaking 
process, which would allow for public participation by the commenters.
    Comment: TCEQ commented that EPA is obligated to ensure that states 
may be relieved of the CAA section 185 penalty fee obligation in a 
timely manner. The commenter further states that (1) EPA has not issued 
rules to specify the requirements for state programs that implement the 
CAA 185 fee requirement and (2) EPA's changing interpretations of the 
CAA section 185 fee requirement resulted in the issuance of limited 
guidance over the course of many years discussing specific issues 
states should consider when developing their fee programs.
    Response: Where it is appropriate to relieve states of the CAA 
section 185 fee obligation, we agree that we should endeavor to do so 
in a timely manner when a request is made by a state. We acknowledge 
that we have not issued rules for the CAA section 185 fee requirement 
but we have issued guidance for specific issues on setting baselines 
\40\ and for equivalent alternative programs (the 2010 guidance). As 
noted in earlier responses, EPA has approved equivalent alternative 
programs for several areas, and these outline factors that EPA 
considers in determining whether an equivalent alternative program is 
approvable. If states have specific questions about section 185 fee 
programs or equivalent alternative programs, they are encouraged to 
contact their respective EPA Regional office.
---------------------------------------------------------------------------

    \40\ See ``Guidance on Establishing Emissions Baselines under 
Section 185 of the Clean Air Act (CAA) for Severe and Extreme Ozone 
Nonattainment Areas that Fail to Attain the 1-hour Ozone NAAQS by 
their Attainment Date'', March 21, 2008 memorandum from William T. 
Harnett, Director, EPA Air Quality Policy Division, available at: 
https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20080321_harnett_emissions_basline_185.pdf.
---------------------------------------------------------------------------

    Comment: TCEQ, Baker Botts, and TXOGA submitted comments supporting 
EPA's Proposal pertaining to the HGB equivalent alternative section 185 
fee program.
    Response: We acknowledge the support for the Proposal.
    Comment: TCEQ commented that EPA should correct typographical and 
other minor errors in the TSD for the Proposal to approve the HGB 
equivalent alternative section 185 fee program. TCEQ added that these 
errors inadvertently result in either incomplete or inaccurate 
statements regarding the HGB program.
    Response: We appreciate the feedback on typographical and other 
minor errors. An additional TSD titled ``TSD for the HGB Equivalent 
Alternative Section 185 Fee Program with Corrections Identified by the 
Texas Commission on Environmental Quality'' is being added to the 
electronic docket.

III. Final Action

A. Plan for Maintaining the Revoked Ozone Standards

    We are approving the maintenance plan for both the revoked 1-hour 
and 1997 ozone NAAQS in the HGB area because we find it demonstrates 
the two ozone NAAQS (1979 1-hour and 1997 8-hour) will be maintained 
for 10 years following this final action (in fact, the state's plan 
demonstrates maintenance of those two standards through 2032). As 
further explained in our Proposal and above, we are not approving the 
submitted 2032 NOX and VOC MVEBs for transportation 
conformity purposes because mobile source budgets for more stringent 
ozone standards are in place in the HGB area. We are finding that the 
projected emissions inventory which reflects these budgets is 
consistent with maintenance of the revoked 1-hour and 1997 ozone 
standards.

B. Redesignation Criteria for the Revoked Standards

    We are determining that the HGB area continues to attain the 
revoked 1-hour and 1997 ozone NAAQS. We are also determining that all 
five of the redesignation criteria at CAA section 107(d)(3)(E) for the 
HGB area have been met for these two revoked standards.

C. Termination of Anti-Backsliding Obligations

    We are terminating the anti-backsliding obligations for the HGB 
area with respect to the revoked 1-hour and 1997 ozone NAAQS. 
Consistent with the South Coast II decision, anti-backsliding 
obligations for the revoked ozone standards may be terminated when the 
redesignation criteria for those standards are met. This final action 
replaces the redesignation substitute rules that were previously 
promulgated for the revoked 1-hour ozone NAAQS (80 FR 63429, October 
20, 2015) and the 1997 ozone NAAQS (81 FR 78691, November 8, 2016.) for 
the HGB area.

D. HGB Equivalent Alternative Section 185 Fee Program

    We are approving 30 TAC sections 101.100-101.102, 101.104, 101.106-
101.110, 101.113, 101.116, 101.117, 101.118(a)(1), 101.118(a)(3) and 
101.120-101.122 as an equivalent alternative section 185 fee program. 
We are taking no action on 30 TAC sections 101.118(a)(2) and 101.118(b) 
at this time. We additionally are finding that the section 185 fee 
program is not an applicable requirement for redesignation.
    As noted above, the EPA has consistently held the position that not

[[Page 8425]]

every requirement an area is subject to is applicable for purposes of 
evaluating an area's request for redesignation, or in this case, a 
request to terminate an area's anti-backsliding requirements based on 
the redesignation criteria. Calcagni Memorandum at 4. EPA has 
consistently held that requirements designed to help an area plan for 
attainment--such as developing modeling demonstrating how the area will 
attain the NAAQS, adopting reasonably available control measures (RACM) 
that would advance attainment by one year or more, and demonstrating 
reasonable further progress towards attainment--are not applicable 
requirements under CAA section 107(d)(3)(E)(ii) and (v) because by 
definition those areas will already have attained the NAAQS in 
question. The Agency's position is based on the reasonable 
interpretation that Congress would not have intended to impose the 
substantial and costly administrative burden on states of adopting 
measures and making demonstrations that are aimed at progressing the 
area towards attainment when the area has already achieved the end goal 
of attainment. The EPA has also interpreted the submission of 
nonattainment area plan contingency measures, which apply if an area 
fails to timely achieve attainment or fails to demonstrate reasonable 
further progress to attainment, as not applicable requirements for 
purposes of redesignation.\41\ Other requirements such as an approved 
nonattainment new source review program, which by definition ends upon 
redesignation, are also not required to be approved prior to 
redesignation.\42\
---------------------------------------------------------------------------

    \41\ John Seitz Memorandum, Reasonable Further Progress, 
Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard (May 10, 1995).
    \42\ Mary Nichols, Part D New Source Review (part D NSR) 
Requirements for Areas Requesting Redesignation to Attainment (Oct. 
14, 1994).
---------------------------------------------------------------------------

    The CAA section 185 fee program must be implemented if an area 
fails to attain by its Severe or Extreme area attainment date. Like 
nonattainment new source review, the program is terminated once an area 
is redesignated to attainment. In the case of an area that is subject 
to a revoked NAAQS, the CAA section 185 fee program is an anti-
backsliding requirement,\43\ and anti-backsliding requirements 
associated with a revoked NAAQS are terminated by EPA's approval of a 
demonstration that all five redesignation criteria have been met. 
Additionally, the purpose of CAA section 185 is to provide incentives 
for emission reductions to occur that would provide for attainment and 
maintenance of an ozone standard in a Severe or Extreme nonattainment 
area that missed the attainment deadline for that standard. If a Severe 
or Extreme area has in fact attained the standard and has appropriate 
controls in place for maintaining the standard, the purpose of section 
185 will have been met. Consistent with EPA's position with regard to 
other nonattainment area requirements that are not CAA applicable 
requirements that must be approved prior to redesignation, we believe 
an area need not have an approved SIP revision addressing the CAA 
section 185 provision in order to determine that all the redesignation 
criteria to be met since that determination will (1) terminate the fee 
collection requirement and (2) meet the purpose underlying the CAA 
section 185 program.
---------------------------------------------------------------------------

    \43\ South Coast Air Quality Management District v. EPA, 472 
F.3d 882, 902 (D.C. Cir. 2006).
---------------------------------------------------------------------------

IV. Incorporation by Reference

    In this rule, we are finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, we are finalizing the incorporation by reference of the revisions 
to the State of Texas regulations as described in the Final Action 
section above. The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 6 Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information). Therefore, these materials have been approved by EPA for 
inclusion in the SIP, have been incorporated by reference by EPA into 
that plan, are fully federally enforceable under sections 110 and 113 
of the CAA as of the effective date of the final rulemaking of EPA's 
approval, and will be incorporated by reference in the next update to 
the SIP compilation.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of the maintenance plan under CAA section 
107(d)(3)(E) are actions that affect the air quality designation status 
of geographical areas and do not impose any additional regulatory 
requirements on sources beyond those required by state law. A 
redesignation to attainment does not in and of itself impose any new 
requirements. While we are not in this action redesignating any areas 
to attainment, we are approving the state's demonstration that all five 
redesignation criteria have been met. Similar to a redesignation, the 
termination of anti-backsliding requirements in this action does not 
impose any new requirements.
    With regard to the SIP approval portions of this action, 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 CAA. Accordingly, where EPA is acting on the SIPs in 
this action, we are merely approving State law as meeting Federal 
requirements and are not imposing additional requirements beyond those 
imposed by State law.
    For these reasons, this action as a whole:
     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 actions that are exempted under 
Executive Order 12866 are also exempted from Executive Order 13771;
     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, 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

[[Page 8426]]

     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).

B. Submission to Congress and the Comptroller General

    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).

C. Petitions for Judicial Review

    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 14, 2020. 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, Ozone, Nitrogen Oxides, Volatile organic compounds.

    Dated: January 29, 2020.
Kenley McQueen,
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:
0
a. In paragraph (c), the table titled ``EPA Approved Regulations in the 
Texas SIP'' is amended by adding an entry under Chapter 101 for 
``Subchapter B--Failure to Attain Fee''; and
0
b. In paragraph (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 of the table for 
``Houston-Galveston-Brazoria Redesignation Request and Maintenance Plan 
for the 1979 1-hour and 1997 8-hour Ozone Standards''.
    The additions read as follows:


Sec.  52.2270   Identification of plan.

* * * * *
    (c) * * *

                                    EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                       State approval/
         State citation              Title/subject        submittal      EPA approval date       Explanation
                                                            date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                     Chapter 101--General Air Quality Rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                       Subchapter B--Failure to Attain Fee
----------------------------------------------------------------------------------------------------------------
Section 101.100................  Definitions.........       5/22/2013  2/14/2020, [Insert
                                                                        Federal Register
                                                                        citation].
Section 101.101................  Applicability.......       5/22/2013  2/14/2020, [Insert
                                                                        Federal Register
                                                                        citation].
Section 101.102................  Equivalent                 5/22/2013  2/14/2020, [Insert
                                  Alternative Fee.                      Federal Register
                                                                        citation].
Section 101.104................  Equivalent                 5/22/2013  2/14/2020, [Insert
                                  Alternative Fee                       Federal Register
                                  Accounting.                           citation].
Section 101.106................  Baseline Amount            5/22/2013  2/14/2020, [Insert
                                  Calculation.                          Federal Register
                                                                        citation].
Section 101.107................  Aggregated Baseline        5/22/2013  2/14/2020, [Insert
                                  Amount.                               Federal Register
                                                                        citation].
Section 101.108................  Alternative Baseline       5/22/2013  2/14/2020, [Insert
                                  Amount.                               Federal Register
                                                                        citation].
Section 101.109................  Adjustment of              5/22/2013  2/14/2020, [Insert
                                  Baseline Amount.                      Federal Register
                                                                        citation].
Section 101.110................  Baseline Amount for        5/22/2013  2/14/2020, [Insert
                                  New Major                             Federal Register
                                  Stationary Source,                    citation].
                                  New Construction at
                                  a Major Stationary
                                  Source, or Major
                                  Stationary Sources
                                  with Less Than 24
                                  Months of Operation.
Section 101.113................  Failure to Attain          5/22/2013  2/14/2020, [Insert
                                  Fee Obligation.                       Federal Register
                                                                        citation].

[[Page 8427]]

 
Section 101.116................  Failure to Attain          5/22/2013  2/14/2020, [Insert
                                  Fee Payment.                          Federal Register
                                                                        citation].
Section 101.117................  Compliance Schedule.       5/22/2013  2/14/2020, [Insert
                                                                        Federal Register
                                                                        citation].
Section 101.118(a)(1) and        Cessation of Program       5/22/2013  2/14/2020, [Insert    SIP does not
 (a)(3).                                                                Federal Register      include
                                                                        citation].            101.118(a)(2) or
                                                                                              101.118(b).
Section 101.120................  Eligibility for            5/22/2013  2/14/2020, [Insert
                                  Equivalent                            Federal Register
                                  Alternative                           citation].
                                  Obligation.
Section 101.121................  Equivalent                 5/22/2013  2/14/2020, [Insert
                                  Alternative                           Federal Register
                                  Obligation.                           citation].
Section 101.122................  Using Supplemental         5/22/2013  2/14/2020, [Insert
                                  Environmental                         Federal Register
                                  Project to Fulfill                    citation].
                                  an Equivalent
                                  Alternative
                                  Obligation.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

              EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                        Applicable      State approval/
      Name of SIP provision           geographic or        effective     EPA approval date         Comments
                                    nonattainment area       date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Houston-Galveston-Brazoria         Houston-Galveston-       12/12/2018  2/14/2020, [Insert
 Redesignation Request and          Brazoria, TX.                        Federal Register
 Maintenance Plan for the 1-hour                                         citation].
 and 1997 8-hour Ozone Standards.
----------------------------------------------------------------------------------------------------------------

* * * * *

0
3. Section 52.2275 is amended by revising paragraphs (j) and (n) to 
read as follows:


Sec.  52.2275   Control strategy and regulations: Ozone.

* * * * *
    (j) Determination of Attainment. Effective November 19, 2015, the 
EPA has determined that the Houston-Galveston-Brazoria 1-hour ozone 
nonattainment area has attained the 1-hour ozone standard.
* * * * *
    (n) Termination of Anti-backsliding Obligations for the Revoked 1-
hour and 1997 8-hour ozone standards. Effective March 16, 2020 EPA has 
determined that the Houston-Galveston-Brazoria area has met the Clean 
Air Act criteria for redesignation. Anti-backsliding obligations for 
the revoked 1-hour and 1997 8-hour ozone standards are terminated in 
the Houston-Galveston-Brazoria area.

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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


0
5. Section 81.344 is amended:
0
a. In the table titled ``Texas--Ozone (1-Hour Standard)'' by:
0
i. Removing the footnote number ``2'' in the title heading ``Texas-
Ozone (1-Hour Standard)'' and adding in its place footnote number 
``1'';
0
ii. Under column headings ``Designation'' and ``Classification'' in the 
both headings for ``Date,'' removing the footnote number ``1'' and 
adding in its place the footnote number ``2'';
0
iii. Revising the entry for ``Houston-Galveston-Brazoria Area, TX''; 
and
0
iv. Revising footnotes 1, 2, and 4.
0
b. Amend table titled ``Texas--1997 8-Hour Ozone NAAQS [Primary and 
Secondary]'' by:
0
i. Adding footnote ``1'' to the table heading;
0
ii. Revising footnotes 1 and 4; and
0
iii. Revising the entry for ``Houston-Galveston-Brazoria Area, TX,'' 
including the removal of footnote 7.
    The revisions and additions read as follows:


Sec.  81.344   Texas.

* * * * *

[[Page 8428]]



                                                  Texas--Ozone
                                              [1-Hour standard] \1\
----------------------------------------------------------------------------------------------------------------
                                                Designation                           Classification
         Designated area         -------------------------------------------------------------------------------
                                       Date \2\              Type              Date \2\              Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Houston-Galveston-Brazoria Area,  See footnote 4....  See footnote 4....  See footnote 4....  See footnote 4.
 TX:.
    Brazoria County \4\
    Chambers County \4\
    Fort Bend County \4\
    Galveston County \4\
    Harris County \4\
    Liberty County \4\
    Montgomery County \4\
    Waller County \4\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ The 1-hour ozone standard, designations and classifications are revoked effective June 15, 2005 for areas in
  Texas except the San Antonio area where they are revoked effective April 15, 2009.
\2\ The date at the time designations were revoked is October 18, 2000, unless otherwise noted.
 * * * * * * *
\4\ The Houston-Galveston-Brazoria Area was designated and classified as ``Severe-17'' nonattainment on November
  15, 1990 and was so designated and classified when the 1-hour ozone standard, designations and classifications
  were revoked. The area has since attained the 1-hour ozone standard and met all the Clean Air Act criteria for
  redesignation. All 1-hour ozone standard anti-backsliding obligations for the area are terminated effective
  March 16, 2020.

* * * * *

                                         Texas--1997 8-Hour Ozone NAAQS
                                           [Primary and secondary] \1\
----------------------------------------------------------------------------------------------------------------
                                              Designation \a\                     Category/classification
         Designated area         -------------------------------------------------------------------------------
                                       Date \1\              Type              Date \1\              Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Houston-Galveston-Brazoria, TX:.  See footnote 4....  See footnote 4....  See footnote 4....  See footnote 4.
    Brazoria County \4\
    Chambers County \4\
    Fort Bend County \4\
    Galveston County \4\
    Harris County \4\
    Liberty County \4\
    Montgomery County \4\
    Waller County \4\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
 * * * * * * *
\1\ The 1997 8-hour ozone NAAQS, designations and classifications were revoked effective April 6, 2015. The date
  at the time designations were revoked is June 15, 2004, unless otherwise noted.
 * * * * * * *
\4\ The Houston-Galveston-Brazoria, TX area was designated nonattainment effective June 15, 2004 and was
  classified as ``Severe-15'' effective October 31, 2008. The area has since attained the 1997 8-hour ozone
  standard and met all the Clean Air Act criteria for redesignation. All 1997 8-hour ozone standard anti-
  backsliding obligations for the area are terminated effective March 16, 2020.

* * * * *
[FR Doc. 2020-02053 Filed 2-13-20; 8:45 am]
 BILLING CODE 6560-50-P