[Federal Register Volume 89, Number 119 (Thursday, June 20, 2024)]
[Rules and Regulations]
[Pages 51829-51843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13193]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R06-OAR-2023-0536; FRL-11640-02-R6]


Clean Air Act Reclassification of the San Antonio, Dallas-Fort 
Worth, and Houston-Galveston-Brazoria Ozone Nonattainment Areas; TX

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA), the Environmental 
Protection Agency (EPA) is granting a request from the Governor of the 
State of Texas to voluntarily reclassify the San Antonio, Dallas-Fort 
Worth (DFW), and Houston-Galveston-Brazoria (HGB) ozone nonattainment 
areas from Moderate to Serious for the 2015 ozone National Ambient Air 
Quality Standards (NAAQS). The EPA is also setting the date for the 
Texas Commission on Environmental Quality (TCEQ or State) to submit 
revised State Implementation Plans (SIPs) addressing the Serious ozone 
nonattainment area requirements and for the first transportation 
control demonstrations for these areas. The EPA is also setting the 
deadlines for implementation of new rules addressing Reasonably 
Available Control Technology (RACT) and for any new or revised Enhanced 
vehicle Inspection and Maintenance (I/M) programs. Finally, the TCEQ is 
no longer required to submit SIP revisions addressing the following 
requirements related to the prior classification level for these three 
ozone nonattainment areas: a demonstration of attainment by the prior 
attainment date; a Reasonably Available Control Measures (RACM) 
analysis tied to the prior attainment date; and contingency measures 
specifically related to the area's failure to attain by the prior 
attainment date.

DATES: This rule is effective on July 22, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID EPA-R06-OAR-2023-0536. 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. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Paige, EPA Region 6 Office, 
Infrastructure and Ozone Section, 214-665-6521, [email protected]. 
Please call or email the contact listed here if you need alternative 
access to material indexed but not provided in the docket.

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

I. Background

    The background for this action is discussed in detail in our 
January 26, 2024, proposal (89 FR 5145).\1\ In that document, we 
proposed to grant a request submitted by Texas Governor Greg Abbott to 
reclassify the San Antonio, DFW, and HGB ozone nonattainment areas from 
Moderate to Serious for the 2015 ozone NAAQS. We also proposed a 
deadline for the TCEQ to submit revisions to the SIP addressing the 
Serious area requirements for these areas. The SIP requirements that 
apply specifically to Serious areas include: Enhanced monitoring (CAA 
section 182(c)(1)); Emissions inventory and emissions statement rule 
(40 CFR 51.1300(p) and 40 CFR 51.1315); Reasonable Further Progress 
(RFP) (40 CFR 51.1310); Attainment demonstration and RACM (40 CFR 
51.1308 and 40 CFR 51.1312(c)); RACT (40 CFR 51.1312); Nonattainment 
New Source Review (NSR) (40 CFR 51.1314 and 40 CFR 51.165); Enhanced I/
M (CAA section 182(c)(3) and 40 CFR 51 Subpart S); Clean-fuel vehicle 
programs (CAA section 182(c)(4)); \2\ and Contingency measures (CAA 
sections 172(c)(9) and 182(c)(9)). In addition, a demonstration 
evaluating the need for a transportation control measure program (CAA 
section 182(c)(5)) is also required. We also proposed and took comment 
on a range of deadlines for the TCEQ to submit revisions to the SIP 
addressing the Serious area requirements, from 12 to 18 months from the 
effective date of the EPA's final rule reclassifying the San Antonio, 
DFW, and HGB areas as Serious. We also proposed a deadline for 
implementation of new RACT rules as expeditiously as practicable but no 
later than January 1, 2026, and proposed a deadline for any new or 
revised Enhanced vehicle I/M programs (for areas that do not need I/M 
emission reductions for attainment or RFP SIP purposes) to be fully 
implemented as expeditiously as practicable but no later than four 
years after the effective date of EPA's final rule reclassifying these 
areas as Serious. We also proposed a deadline for the first 
transportation control demonstration to be submitted two years after 
the attainment demonstration due date.
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    \1\ Henceforth we refer to this proposal as the ``January 2024 
proposal.'' The January 2024 proposal and related documents (e.g., 
the Texas Governor's request and our Environmental Justice 
Considerations) are provided in the docket for this action.
    \2\ In June 2022, the EPA released new guidance that provides 
several options for states to either continue to rely upon their 
existing Clean Fuel Fleets Program, to add new components to these 
programs, or to rely on recent EPA regulations to satisfy the Clean 
Fuel Fleets requirement. This new guidance reaffirms and supplements 
the 1998 guidance with new compliance options. This guidance is 
posted at https://www.epa.gov/state-and-local-transportation/clean-fuel-fleets-program-guidance.
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    The January 2024 proposal also outlined EPA's interpretation that 
following voluntary reclassification, a state is no longer required to 
submit certain SIP revisions addressing the following requirements 
related to the prior classification level for an ozone nonattainment 
area because they are tied to the prior (i.e., Moderate) attainment 
date: (1) a demonstration of attainment by the prior attainment date, 
(2) a RACM analysis tied to the prior attainment date, and (3) 
contingency measures specifically related to the area's failure to 
attain by the prior attainment date. Accordingly, with this final 
voluntary reclassification of the San Antonio, DFW, and HGB areas as 
Serious for the 2015 ozone NAAQS, Texas is no longer required to submit 
these three identified SIP elements as they relate to the Moderate 
classification level, and EPA's October 18, 2023, Finding of Failure to 
Submit is moot as to these specific SIP elements for Texas.\3\ However, 
as described in our January 2024 proposal, there remain several 
Moderate area SIP requirements that continue to be required after these 
areas are voluntarily reclassified as Serious because they are not 
dependent upon the Moderate attainment date itself.\4\
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    \3\ 88 FR 71757 (October 18, 2023). Henceforth referred to as 
the ``October 2023 findings.''
    \4\ See 89 FR 5145, 5147.

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[[Page 51830]]

    The comment period for our January 2024 proposal closed on February 
26, 2024. We received relevant comments during the comment period from 
eight sources: CPS Energy; Earthjustice--on behalf of Air Alliance 
Houston, Texas Environmental Justice Advocacy Services, and Sierra 
Club; Office of the Harris County Attorney; Texas Chemistry Council; 
TCEQ; Texas Oil & Gas Association; Texas Pipeline Association; and a 
member of the public. These comments are available for review in the 
docket for this rulemaking. Our responses to the comments are provided 
in Section II of this rulemaking.

II. Response to Comments

A. Reclassification of the Areas as Serious

    Comment: Commenters state that the EPA has no discretion to deny 
the reclassification request and the EPA should have issued a direct 
final approval granting the reclassification request.
    Response: The EPA is granting the request to reclassify the San 
Antonio, DFW, and HGB nonattainment areas from Moderate to Serious for 
the 2015 ozone NAAQS, but we disagree that a direct final action is 
appropriate in this circumstance for several reasons. First, our 
January 2024 proposal proposed to determine that the EPA's October 2023 
findings with respect to the Texas SIP revisions for the demonstration 
of attainment by the prior attainment date, the RACM analysis tied to 
the prior attainment date, and contingency measures specifically 
related to the area's failure to attain by the prior attainment date 
for the Moderate classification are now moot, and that the associated 
deadlines triggered by the October 2023 findings for imposition of 
sanctions or promulgation of a Federal Implementation Plan (FIP) no 
longer apply with respect to these three elements. Second, our January 
2024 proposal requested comments on deadlines proposed for SIP 
submission and for implementation of certain CAA requirements, which we 
are required to establish pursuant to CAA section 182(i). Thus, the 
proposal provides the public an opportunity to review and comment upon 
the proposed actions and deadlines. Finally, we disagree that a direct 
final action is a required vehicle to grant the voluntary 
reclassification request. CAA section 181(b)(3) provides that the EPA 
``shall publish a notice in the Federal Register of any such request 
and of action by the Administrator granting the request'' but does not 
dictate the form of such Federal Register action. Our action here is 
consistent with section 181(b)(3) and with a prior action granting the 
Texas Governor's request to reclassify the HGB area from Moderate to 
Severe for the 1997 ozone NAAQS, where we did not issue a direct final 
action but instead, used the same notice-and-comment format as we have 
here.\5\
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    \5\ 73 FR 56983 (October 1, 2008).
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    Comment: The Office of the Harris County Attorney asks that EPA 
provide guidance on how it interprets CAA section 181(b)(3) in the 
event a governor requests a reclassification after a missed SIP 
deadline. The commenter contends that the Governor's reclassification 
request and the reasoning behind it is contrary to the intent of the 
CAA, which is not to protect industry and economy but the people living 
and breathing in Texas. The commenter states that the January 2024 
proposal, if finalized, would give Texas several years to complete 
certain SIP requirements, and EPA has found some requirements 
pertaining to the prior attainment date to now be moot. The commenter 
states that this sets a precedent which may further delay ozone 
improvements, in contravention to the intent of the CAA. The commenter 
suggests clarifications on which requirements would be moot, deadlines, 
and other issues addressed in the January 2024 proposal would be 
helpful for both stakeholders and states when contemplating the 
consequences of such an action.
    Response: CAA section 181(b)(3) does not require states to provide 
a reason for their request for a voluntary reclassification, nor does 
it condition EPA's action on the request on such reasoning. Consistent 
with 40 CFR 51.1303(b), ``[a] state may request, and the Administrator 
must approve, a higher classification for an area for any reason in 
accordance with CAA section 181(b)(3).'' \6\ Reclassification is a 
legitimate method provided by the CAA to address the circumstances of 
the San Antonio, DFW, and HGB areas--as illustrated by the TCEQ's 
proposed Moderate attainment demonstration SIP revisions for these 
areas that indicated, based on the TCEQ's modeling and available data, 
these three areas were not expected to attain the 2015 ozone NAAQS by 
their 2024 attainment dates.\7\
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    \6\ Emphasis added.
    \7\ The proposed SIP revisions are posted on the TCEQ website at 
https://www.tceq.texas.gov/airquality/sip. Once there, click on the 
map for the DFW, HGB, and/or the San Antonio area, then scroll down 
and click on ``Latest Ozone Planning Activities'' and then scroll 
down to the ``Proposed Moderate AD SIP Revision for the 2015 Ozone 
NAAQS.''
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    We disagree that approving the request to reclassify the area from 
Moderate to Serious would delay implementation of the CAA SIP 
requirements in a manner inconsistent with the CAA. The commenter did 
not describe which ozone improvements would be delayed. Our January 
2024 proposal did not propose delays for the Moderate or Serious area 
SIP submissions. As mentioned in our January 2024 proposal, upon 
reclassification, stationary air pollution sources in the San Antonio, 
DFW, and HGB ozone nonattainment areas will be subject to Serious ozone 
nonattainment area NSR and Title V permit requirements. The source 
applicability thresholds for major sources and major source 
modification emissions will be 50 tons per year (tpy) for volatile 
organic compounds (VOC) and oxides of nitrogen (NOX). For 
new and modified major stationary sources subject to review under Texas 
Administrative Code Title 30, Chapter 116, Section 116.150 (30 TAC 
116.150) in the EPA approved SIP,\8\ VOC and NOX emission 
increases from the proposed construction of new or modified major 
stationary sources must be offset by emission reductions by a minimum 
offset ratio of 1.20 to 1 (see CAA section 182(c)(10)). We note that 
the DFW and HGB areas are classified as Severe under the 2008 ozone 
NAAQS and thus, the more stringent Severe area requirements are 
currently being implemented--and will continue to be implemented--in 
those areas.\9\ Our January 2024 proposal listed the remaining Moderate 
area SIP requirements that continue to be required after these areas 
are reclassified as Serious, which are: (1) a 15 percent rate-of-
progress (ROP) plan (40 CFR 51.1310), (2) contingency measures for 
failure to achieve RFP, including the 15 percent ROP requirement for 
Moderate areas (CAA sections 172(c)(9) and 182(c)(9)), (3) a RACT 
demonstration (40 CFR 51.1312), (4) Nonattainment New Source Review 
(NNSR) rules (40 CFR 51.165), and (5) a Basic I/M program (CAA section 
182(b)(4) and 40 CFR 51 subpart S). Because these SIP requirements are 
not dependent upon the Moderate attainment date itself, voluntary 
reclassification does not

[[Page 51831]]

change the submission requirement or implementation deadlines for these 
SIP elements that were due January 1, 2023, for the Moderate 
classification for the San Antonio, DFW, and HGB areas. Reclassifying 
the areas as Serious in response to a reclassification request does not 
result in an attainment date that is any later than the attainment date 
that would have applied had the area been initially classified as 
Serious, and the Serious requirements that depend on that date are all 
still applicable.
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    \8\ Specifically, we are referring to the EPA-approved Texas SIP 
at Section 116.150, titled ``New Major Source or Major Modification 
in Ozone Nonattainment Area.'' 60 FR 49781 (September 27, 1995) and 
subsequent revisions at 77 FR 65119 (October 25, 2012).
    \9\ For Severe ozone nonattainment areas, the nonattainment NSR 
source applicability thresholds for major sources and major source 
modification emissions are 25 tpy for VOC and NOX, and 
the minimum emissions offset ratio is 1.30 to 1 (see CAA sections 
182(d) and 182(d)(2)).
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    We disagree that approving the request to reclassify the area from 
Moderate to Serious would set a precedent that may further delay ozone 
improvements, as suggested by the commenter. We note that our approval 
of the prior Texas Governor's request to reclassify the HGB area from 
Moderate to Severe for the 1997 ozone NAAQS provided that once 
reclassified, the area would no longer be required to submit an 
attainment demonstration for the prior classification.\10\ In our 
January 2024 proposal, we explained that once reclassified as Serious, 
these three areas have a new statutory attainment deadline, so certain 
SIP elements (in this case, specifically, the Moderate area attainment 
demonstration and the associated RACM and contingency measures for 
failure to attain) that are dependent on the Moderate attainment 
deadline are no longer applicable or required for the lower, superseded 
(in this case, Moderate) classification. None of the remaining SIP 
requirements for the Moderate classification and none of the SIP 
requirements for the Serious classification were proposed as moot or 
delayed in our January 2024 proposal. We also note that for the prior 
voluntary reclassification of the HGB area from Moderate to Severe for 
the 1997 ozone NAAQS, the HGB area was able to attain the 1997 ozone 
NAAQS by the end of 2014, significantly ahead of the area's June 15, 
2019, attainment date.\11\
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    \10\ 73 FR 56983, 56987.
    \11\ See 73 FR 56983 and 80 FR 81466 (December 30, 2015).
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    We elaborate on the Serious SIP submission and implementation 
deadlines in our responses to the comments that follow.

B. Status of Certain Requirements of Previous Classification

    Comment: Commenters agree with EPA's determination that the 
attainment demonstration, RACM, and contingency measure elements for 
failure to attain for the Moderate level classification would no longer 
be due upon reclassification as Serious and that EPA's October 2023 
findings should be mooted for these elements.
    Response: The EPA appreciates these comments.
    Comment: The commenter states that the EPA repeatedly reassured the 
TCEQ that voluntary reclassification would provide an extended 
timeframe to meet the CAA deadlines. The commenter states that the 
January 2024 proposal is inconsistent with those representations as the 
January 2024 proposal continues to hold Texas to the Moderate 
nonattainment area deadlines.
    Response: We disagree that a voluntary reclassification provides 
the EPA with authority to extend existing deadlines associated with a 
prior nonattainment classification. The Moderate nonattainment SIP 
submission deadlines were established when the areas were reclassified 
from Marginal to Moderate and the TCEQ did not challenge the deadlines 
in that final action.\12\ We note that the period of time between the 
effective date of reclassification and the area's attainment date could 
be greater for an area requesting a voluntary reclassification, since 
the effective date of reclassification would presumably occur earlier 
than for an area mandatorily reclassified following a Finding of 
Failure to Attain.\13\ Thus, reclassification can have the practical 
effect of providing more time to develop and implement plans to meet an 
area's attainment date.
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    \12\ 87 FR 60897 (October 7, 2022).
    \13\ 73 FR 56983.
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    Our January 2024 proposal proposes to moot only the Moderate area 
attainment demonstration and associated RACM demonstration and 
contingency measures specifically tied to the Moderate attainment date. 
The remaining Moderate nonattainment SIP elements continue to be 
required and their associated deadlines are not otherwise altered.
    Comment: Commenters state that the CAA is explicit that a state has 
authority to request voluntary reclassification, and therefore to moot 
all elements required under the prior classification. Commenters state 
that voluntary reclassification allows the state to delay elements 
required under the prior classification, because the purpose of the 
reclassification is to permit states to develop and implement the most 
effective collection of measures associated with the required elements 
to attain the NAAQS. Commenters state that CAA section 181(b)(3) 
affects the CAA's other provisions that are key to reclassification. 
Commenters state that when a state exercises its authority under CAA 
section 181(b)(3), the voluntary reclassification works on the CAA's 
other components and abrogates the need for submittals associated with 
the lower classification.
    Response: The EPA disagrees. Commenters assert that voluntary 
reclassification to a higher classification exempts a state from 
needing to make a submittal for any SIP elements addressing the lower 
classification, but this assertion is inconsistent with the plain 
language of the statute. Specifically, CAA section 182(c) states that 
``each State in which all or part of a Serious Area is located shall, 
with respect to the Serious Area . . . make the submissions described 
under subsection (b) of this section (relating to Moderate Areas) and 
shall also submit the revisions to the applicable implementation plan 
(including the plan items) described under this subsection.'' Thus, the 
CAA clearly requires that Serious areas meet Moderate area requirements 
in addition to Serious area requirements (see CAA section 182(c)). 
These Moderate area requirements apply to areas initially classified as 
Serious as well as areas reclassified as Serious, whether their 
reclassification as Serious is mandatory as a result of failure to 
attain or is voluntary in response to a reclassification request. The 
CAA does not otherwise provide for delaying Moderate area requirement 
deadlines beyond their prescribed timeframes, regardless of how the 
area came to become classified as Serious. What the voluntary 
reclassification does provide is additional lead time before the 
attainment date, as compared to a mandatory reclassification, for the 
state to adopt and implement such measures as necessary to attain while 
recognizing that the CAA requires that reasonable further progress as 
required for Moderate areas must still be achieved.
    Our approach here is consistent with past actions to grant 
voluntary reclassifications. When Texas previously requested a 
voluntary reclassification for the HGB area from Moderate to Severe 
under the 1997 ozone NAAQS, we stated that, ``Texas has a continuing 
responsibility for certain elements of the Moderate area requirements. 
EPA has stated that reclassification does not provide a basis for 
extending submission deadlines for SIP elements unrelated to the 
attainment demonstration that were due for the area's Moderate 
classification.'' \14\ With the exception of the Moderate area 
attainment demonstration and the associated

[[Page 51832]]

RACM demonstration and contingency measures for failure to attain by 
the Moderate attainment date, the TCEQ has not been relieved of its 
obligation to comply with SIP submission deadlines for the Moderate 
area requirements.
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    \14\ 73 FR 56983, 56991.
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    Comment: Commenters disagree with EPA's assertion that RFP 
requirements are not tied to the attainment date and therefore cannot 
be mooted for the Moderate classification upon reclassification as 
Serious. Commenters state that EPA's assertion that RFP requirements 
are not tied to the attainment date runs counter to plain language in 
CAA section 182(b)(1)(A), which states: ``Such plan shall provide for 
such specific annual reductions in emissions of volatile organic 
compounds [VOC] and oxides of nitrogen [NOX] as necessary to 
attain the national primary ambient air quality standard for ozone by 
the attainment date applicable under this chapter'' [emphasis added by 
commenters]; as well as CAA section 182(c)(2)(B), which states: ``A 
demonstration that the plan, as revised, will result in VOC emissions 
reductions from the baseline emissions . . . until the attainment 
date'' [emphasis added by commenters]. Commenters state that while an 
RFP SIP revision is not designed to demonstrate attainment, the timing 
of the emissions reduction targets for the Moderate RFP demonstration 
are based on the attainment deadline for that Moderate classification, 
and the Moderate RFP contingency measures would be required if an area 
fails to meet those RFP targets that are based on the Moderate 
attainment deadline. Commenters state that EPA's argument for 
superseding the attainment demonstration and RACM requirements is that 
``EPA interprets the CAA such that following reclassification, any 
required attainment demonstration and associated RACM analysis must be 
done with respect to the new and current applicable attainment date.'' 
Commenters state that this interpretation should also apply to RFP as a 
new demonstration would be required with targets based on the Serious 
classification attainment date. Commenters add that the targets based 
on the Moderate attainment date would also be demonstrated within the 
Serious classification RFP SIP revision using the most recent emissions 
development methods (e.g., MOVES4); therefore, eliminating the need for 
the Moderate classification RFP submittal.
    Response: Commenters' assertions that RFP is tied to the attainment 
date as they suggest is inconsistent with the RFP requirements 
established in the implementing regulations for the 2015 ozone NAAQS 
which are based on a long-held EPA interpretation of RFP for ozone 
nonattainment areas. As commenters note, Moderate and higher ozone 
nonattainment areas are subject to the general requirements for 
nonattainment plans in CAA subpart 1 and the specific requirements for 
ozone areas in CAA subpart 2, including the requirements related to RFP 
and attainment. This is consistent with the structure of the CAA as 
modified under the 1990 amendments, which introduced additional 
subparts to part D of title I of the CAA to address requirements for 
specific NAAQS pollutants, including ozone (subpart 2), carbon monoxide 
(subpart 3), particulate matter (subpart 4), and sulfur oxides, 
nitrogen dioxide, and lead (subpart 5).
    These subparts apply tailored requirements for these pollutants, 
including those based on an area's designation and classification, in 
addition to and often in place of the generally applicable provisions 
retained in subpart 1. While CAA section 172(c)(2) of subpart 1 states 
only that nonattainment plans ``shall require reasonable further 
progress,'' CAA sections 182(b)(1) and 182(c)(2)(B) of subpart 2 
provide specific percent reduction targets for ozone nonattainment 
areas to meet the RFP requirement. Put another way, subpart 2 defines 
RFP for ozone nonattainment areas by specifying the incremental amount 
of emissions reduction required by set dates for those areas.\15\ For 
Moderate ozone nonattainment areas, CAA section 182(b)(1) defines RFP 
by setting a specific 15 percent VOC reduction requirement over the 
first six years of the plan. The 15 percent reduction is ``the base 
program that all moderate and above areas must meet. This base program 
is necessary to ensure actual progress toward attainment in the face of 
uncertainties inherent with SIP planning.'' \16\
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    \15\ CAA section 171(1) defines RFP as ``such annual incremental 
reductions in emissions of the relevant air pollutant as are 
required by this part or may reasonably be required by the 
Administrator for the purpose of ensuring attainment of the 
applicable national ambient air quality standard by the applicable 
date.'' The words ``this part'' in the statutory definition of RFP 
refer to part D of title I of the CAA, which contains the general 
requirements in subpart 1 and the pollutant-specific requirements in 
subparts 2-5 (including the ozone-specific RFP requirements in CAA 
sections 182(b)(1) and 182(c)(2)(B) for Serious areas).
    \16\ 57 FR 13498, 13507 (April 16, 1992).
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    For Serious or higher ozone nonattainment areas, the 15 percent 
requirement still applies, and section 182(c)(2)(B) further requires 
specific annual percent reductions for the period following the first 
six-year period and allows averaging over a three-year period. With 
respect to the 1-hour ozone NAAQS, the EPA stated that, by meeting the 
specific percent reduction requirements in CAA sections 182(b)(1) and 
182(c)(2)(B), the state will also satisfy the general RFP requirements 
of section 172(c)(2) for the time period discussed.\17\
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    \17\ See 57 FR 13498, at 13510 (for Moderate areas) and at 13518 
(for Serious areas).
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    The EPA has adapted the RFP requirements under the CAA to implement 
the three 8-hour ozone NAAQS that have been promulgated since the 1990 
CAA Amendments. In the ``Phase 2'' SIP Requirements Rule for the 1997 
Ozone NAAQS (Phase 2 rule),\18\ the EPA adapted the RFP requirements of 
CAA sections 172(c)(2) and 182(b)(1) to require plans to provide for 
the minimum required percent reductions and, for certain Moderate 
areas, to provide for the reductions as necessary for attainment. See, 
e.g., 40 CFR 51.910(a)(1)(ii)(A) and (b)(2)(ii)(C).
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    \18\ See 70 FR 71612 (November 29, 2005).
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    In 2015, the EPA replaced the regulations promulgated through the 
Phase 2 rule with the regulations promulgated through the 2008 Ozone 
SIP Requirements Rule (SRR).\19\ In the 2008 Ozone SRR, the EPA 
established RFP requirements for the 2008 ozone NAAQS that are similar, 
in most respects, to those in the Phase 2 rule for the 1997 ozone NAAQS 
but that do not define RFP for certain Moderate areas in terms of the 
reductions needed for attainment.\20\ More explicitly, in the 2008 
Ozone SRR, the EPA defined RFP as meaning both the ``emissions 
reductions required under CAA section 172(c)(2) which the EPA 
interprets to be an average 3 percent per year emissions reductions of 
either VOC or NOX and CAA sections 182(c)(2)(B) and (c)(2)(C) and the 
15 percent reductions over the first six years of the plan and the 
following three percent per year average under 40 CFR 51.1110.'' \21\ 
Thus, under the 2008 Ozone SRR, the RFP emissions reductions required 
for Serious or higher ozone nonattainment areas under CAA section 
172(c)(2) are based on a set annual percentage found in the CAA, not on 
the specific attainment needs for the area. In this regard, EPA has 
been even more explicit in our SRR for the

[[Page 51833]]

2015 ozone NAAQS: \22\ ``Reasonable further progress (RFP) means the 
emissions reductions required under CAA sections 172(c)(2), 
182(c)(2)(B), 182(c)(2)(C), and 40 CFR 51.1310. The EPA interprets RFP 
under CAA section 172(c)(2) to be an average 3 percent per year 
emissions reduction of either VOC or NOX.'' \23\
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    \19\ 80 FR 12264. Under 40 CFR 51.919 and 51.1119, the 
regulations promulgated in the 2008 Ozone SRR replaced the 
regulations promulgated in the Phase 2 rule, with certain exceptions 
not relevant here.
    \20\ Compare RFP requirements for the 1997 ozone NAAQS at 40 CFR 
51.910(a)(1)(ii)(A) and (b)(2)(ii)(C) with the analogous provisions 
for the 2008 ozone NAAQS at 40 CFR 51.1110(a)(2)(i)(B).
    \21\ See 40 CFR 51.1100(t) (emphasis added).
    \22\ See 83 FR 62998 (December 6, 2018).
    \23\ See 40 CFR 51.1300(l).
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    In the SRR for the 2015 Ozone NAAQS, which is the set of 
regulations that governs the EPA's action here, RFP is defined in terms 
of percent reduction from the area's emissions in the baseline year, 
not in terms of the reductions necessary for attainment. In other 
words, for the 2015 ozone NAAQS, the requirement to demonstrate RFP is 
independent of the requirement to demonstrate attainment by the 
attainment date. RFP for the 2015 ozone NAAQS represents the minimum 
progress that is required under the CAA, and our regulations, and does 
not necessarily need to provide for the reductions necessary to achieve 
attainment of the ozone NAAQS by the attainment date, which could vary 
largely from one nonattainment area to another. For all of these 
reasons, EPA disagrees with commenter's claim that RFP should be 
treated the same as the Moderate area attainment demonstration, RACM, 
and contingency measures for failure to attain. EPA's explanation for 
why those three particular SIP elements are no longer required 
following a voluntary reclassification does not apply to the Moderate 
area RFP SIP element. Unlike the other three SIP elements, RFP is not 
``tied to the applicable attainment deadline'' as explained above.
    Moreover, the SRR for the 2015 ozone NAAQS lists RFP and ROP as 
distinct provisions for implementation. See 40 CFR 51.1300(l), 
51.1300(m), 51.1310(a)(2)(i) and 51.1310(a)(4)(i). These provisions 
clearly demonstrate the necessity for RFP reductions during the first 6 
years of the plan, regardless of the area's initial classification, or 
whether it was Moderate before reclassifying as Serious, whether 
voluntarily, or mandatorily. EPA therefore disagrees with the 
commenter's implicit suggestion that the Moderate area RFP SIP 
submittal should be delayed until submitted within the Serious area RFP 
SIP submittal, as that would further delay submission of the Moderate 
RFP plans, which are addressed in our October 2023 findings. The 
Moderate RFP SIP submittal was due to EPA on January 1, 2023, and the 
State will also be required to provide an RFP SIP submittal for the 
Serious classification by January 1, 2026. Considering the reasoning 
above explaining that the State is still required to provide an RFP 
demonstration for the Moderate classification, and the undisputed fact 
that the area is required to demonstrate RFP for this time period, the 
EPA is not convinced by the commenter that further delay of the RFP 
demonstration is warranted.
    Comment: Commenters state that the EPA's proposal to require Texas 
to continue to meet Moderate RFP and contingency measure obligations 
does not align with EPA's rationale in its Clean Data Policy (40 CFR 
51.1318), which provides that elements related to the attainment date, 
including RFP and contingency measure obligations, are eligible for 
suspension if the area is meeting the NAAQS. Commenters state that the 
EPA has not identified a rationale for treating the nature of these 
elements differently in the context of voluntary reclassification.
    Response: Commenters misunderstand the purpose of the Clean Data 
Policy, which states, ``[u]pon a determination by the EPA that an area 
designated nonattainment for a specific ozone NAAQS has attained that 
NAAQS, the requirements for such area to submit attainment 
demonstrations and associated RACM, RFP plans, contingency measures for 
failure to attain or make reasonable progress, and other planning SIPs 
related to attainment of the ozone NAAQS for which the determination 
has been made, shall be suspended until such time as the area is 
redesignated to attainment for that NAAQS, at which time the 
requirements no longer apply; or the EPA determines that the area has 
violated that NAAQS, at which time the area is again required to submit 
such plans.'' (40 CFR 51.1318). The rationale for treatment of RFP in 
the Clean Data Policy is different from the rationale used here for 
reclassification. While the Clean Data Policy is reasonably based on 
the fact that an area that is attaining the NAAQS need not make further 
progress toward attainment in the form of RFP reductions, it does not 
follow that an area that is not attaining the NAAQS would be relieved 
of the need to make CAA-mandated progress toward attainment as a result 
of it being reclassified and given a later attainment date.
    The DFW, HGB, and San Antonio areas currently are not meeting the 
2015 ozone NAAQS, and thus the Clean Data Policy does not apply here. 
Moreover, as areas not meeting the standard, these areas must continue 
achieving emission reduction progress as required by the CAA and EPA's 
regulations.
    Comment: A commenter disagrees that RACT requirements are not tied 
to the attainment date and therefore cannot be mooted for the Moderate 
classification upon reclassification as Serious. Commenters cite to CAA 
section 182(b)(2)(A) that states must consider each category of VOC 
sources in the area covered by a control techniques guideline (CTG) 
document issued by the Administrator between November 15, 1990, and the 
date of attainment, and thus the statutory connection of the RACT 
review to the attainment date is clear. Commenters state that the EPA 
clearly bases RACT requirements on the attainment deadline for an 
area's classification as evidenced by this action in which EPA is 
proposing RACT implementation deadlines based on the timing required to 
influence attainment of the standard by the attainment date. Commenters 
state that the RACT connection to the attainment date is also evident 
through the connection with the classification level itself, as the 
RACT analysis is grounded in the review of the applicable major 
stationary source threshold. Commenters state that the reclassification 
as Serious would result in more stringent application of RACT 
requirements to the nonattainment areas under a major source threshold 
of 50 tpy, which would capture major sources under the 100 tpy Moderate 
classification threshold, thus eliminating the need for a submittal to 
address Moderate classification RACT.
    Response: The EPA disagrees. For reclassified areas, the RACT 
requirements at 40 CFR 51.1312(a)(2)(ii) and (3)(ii) obligate a state 
to conduct a new, individual RACT analysis for the new classification 
and implement any identified measures as necessary. Reclassification 
does not relieve the RACT obligation for the prior classification. As 
stated in our January 2024 proposal, the CAA requirement in section 
182(b)(2) to implement RACT for specified categories of sources is 
implemented and assessed based on whether the RACT rules are 
implementing what is economically and technologically feasible and is 
not based on reductions needed to attain by the attainment deadline (89 
FR at 5147).
    We disagree that CAA section 182(b)(2)(A) provides a statutory 
connection of RACT to the attainment date. Section 182(b)(2)(A) states 
that RACT requirements apply to each category of sources covered by a 
CTG document issued by the Administrator between November 15, 1990, 
``and the date of attainment.'' This language

[[Page 51834]]

establishes the sources covered by the RACT analysis that a Moderate or 
higher area must consider. The reference to the attainment date sets an 
outer bound of what CTGs will define the categories of sources that 
fall under the Moderate RACT requirement. It does not tie the 
substantive RACT analysis, and the level of controls required by 
application of RACT, to the attainment date.
    We also disagree that the stationary source threshold set by the 
classification level evidences a connection between RACT and the 
attainment date. Just as 182(b)(2)(A) defines the categories of sources 
that need to be covered by a RACT assessment so too the stationary 
source threshold associated with a classification level defines the 
sources that need to be covered in the state's RACT assessment. The 
stationary source threshold establishes the emission levels where RACT 
would be applied but does not define the substance or content of the 
RACT analysis. In this case, the prior Moderate classification required 
evaluation of any sources in any category subject to a CTG and any non-
CTG sources with a potential to emit more than 100 tpy of NOx or VOCs. 
The commenter is correct in that the new Serious classification means 
the State needs to address RACT for additional sources, namely non-CTG 
sources with a potential to emit 50 tpy or more of NOx. But the 
commenter has failed to explain why this fact, that RACT must be 
analyzed and implemented for additional smaller sources, should result 
in delayed submission and implementation of RACT on the original set of 
sources covered by the Moderate classification. If EPA were to go with 
such an interpretation, it would delay the requirement in this instance 
for Texas to submit a SIP addressing the RACT obligation from January 
1, 2023, to January 1, 2026, in an area that is not attaining the 2015 
ozone NAAQS. This would lead to a three-year delay in required controls 
in areas that have air quality that exceeds levels protective of human 
health and the environment. The commenter has not identified any 
language in the CAA that necessitates or even supports such a result.
    Finally, the commenters point to the fact that EPA has based RACT 
implementation deadlines on the timing required to influence attainment 
of the standard by the attainment date. This is a correct 
characterization of EPA's action, but also does not inevitably lead to 
an interpretation that required SIP revisions and RACT implementation 
should be delayed by three years following an area's reclassification. 
As explained at proposal and elsewhere in this action, the substantive 
analysis required in a RACT SIP, namely the implementation of controls 
that are economically and technologically feasible, does not hinge on 
what level of control is needed for the area's attainment by the 
attainment date (this is in contrast to, e.g., the analysis required 
for RACM). A state's RACT SIP should be based on, and EPA will review 
it for, imposition of reasonably available control technology, even if 
that imposition of reasonably available control technology is not 
nearly enough to get the area to attainment by the attainment date. At 
the same time, it is also true that implementation of RACT-level 
control should aid, at least in part, in getting an area to attainment 
by the attainment date. It defies logic to have an area's attainment 
date be in 2027, but for EPA to require a SIP revision requiring RACT 
level controls not due until 2028. Accordingly, both of these things 
can be true: that RACT is not a requirement directly tied to attainment 
while also requiring that RACT SIPs be due and RACT-level controls be 
implemented in time to matter for the overall efforts to get an area to 
attainment.
    Comment: Commenters state that while vehicle I/M and nonattainment 
new source review (NNSR) elements are not explicitly tied to the 
attainment date for a classification, as with the other elements, the 
Serious classification would supersede these requirements with more 
stringent requirements. Commenters repeat that the evident legislative 
goal of the CAA, Part D, Subpart 2 requirements for the ozone NAAQS 
clearly indicate that reclassification to more stringent requirements 
subsume the less stringent requirements. Commenters add that in cases 
where elements are often satisfied with the submittal of certification 
statements noting that the requirements have already been addressed, 
commonly used for addressing I/M and NNSR requirements, it is illogical 
to hold areas under a finding of failure to submit for elements that 
have already been submitted and approved under previous classifications 
or standards. Commenters state that submittal of a certification 
statement is not legally necessary for EPA to know that an element, 
upon which EPA has already acted and approved, has been addressed, as 
EPA's SIP approval actions legally stand on their own merit. Commenters 
state that EPA's treatment of those elements as ``not submitted'' is 
legally insufficient to support a finding of failure to submit that 
results in sanctions and FIP clocks. Commenters add that the 
infrastructure SIP submittal requirements for each NAAQS already 
provide certification from the state that existing regulations are 
adequate to meet the applicable nonattainment area planning 
requirements.
    Response: The EPA disagrees. Our January 2024 proposal did not 
propose to relieve the Basic I/M and Moderate NNSR requirements for the 
DFW, HGB, and San Antonio Moderate nonattainment areas. The Moderate 
nonattainment SIP submission deadlines, including the Basic I/M and 
Moderate NNSR requirements for the DFW, HGB, and San Antonio 
nonattainment areas, were established when the areas were reclassified 
from Marginal to Moderate and those deadlines were not challenged.\24\ 
Our January 2024 proposal only proposed to relieve the Moderate area 
attainment demonstration and associated RACM demonstration and 
contingency measures specifically tied to the Moderate attainment date. 
The remaining Moderate nonattainment plan SIP deadlines, including I/M 
and NNSR, are not otherwise altered. We do not believe that the 
specific control requirements of the prior classification can or should 
be relieved because an area has been reclassified. More stringent NNSR 
and I/M are required because the area is subject to Serious 
requirements and in this final action, EPA is establishing submission 
and implementation deadlines for these new requirements but not 
relieving the requirements that should be implemented on the schedule 
set in the reclassification from Marginal to Moderate.
---------------------------------------------------------------------------

    \24\ 87 FR 60897.
---------------------------------------------------------------------------

    While our October 2023 findings are outside the scope of this 
action, the EPA disagrees that SIP certification statements triggered 
by a reclassification are redundant and already accomplished through 
other SIP processes, including approved SIP submissions under prior 
classifications or NAAQS. We continue to interpret the specific 
nonattainment planning requirements of CAA section 182 to require a 
state to provide a SIP submission to meet each nonattainment area 
planning requirement for a revised ozone NAAQS.\25\ To the extent that 
commenters suggest the EPA should adopt a general presumption of 
adequacy for previously approved SIP elements, we disagree. The 
submission of individual nonattainment SIP elements for purposes of a 
reclassified area provides the public and the EPA an

[[Page 51835]]

opportunity to review and comment upon each element of a nonattainment 
SIP. If the air agency reviews an existing SIP element and concludes it 
does not need to be revised in light of the reclassification, 
submission of a certification SIP allows the public to review the air 
agency's assessment and provide comment on any changes they may think 
necessary. The EPA then also has an opportunity to review the air 
agency's assessment and ensure that it is consistent with CAA 
requirements in relation to the reclassified area. The certification 
statement option is intended to streamline the SIP submission process, 
providing air agencies with the flexibility to address multiple SIP 
elements in a single certification statement, and combine the SIP 
certification action with other actions subject to public notice and 
comment. The EPA does not believe that developing and submitting 
certification SIP elements will be a significant and unnecessary drain 
on state resources. We also note with regard to the I/M programs, as 
discussed in 40 CFR 51 Subpart S, the vehicle fleet can change and 
impact whether the program continues to meet the required performance 
standard.
---------------------------------------------------------------------------

    \25\ See 83 FR 10376 (March 9, 2018) and 40 CFR 51.1302.
---------------------------------------------------------------------------

    We disagree that the Texas infrastructure SIP submittal provides 
certification that existing regulations are adequate to meet the 
applicable nonattainment area planning requirements (CAA section 
110(a)(2)(I)). The Texas infrastructure submittal for the 2015 ozone 
NAAQS did not address CAA section 110(a)(2)(I).\26\ The infrastructure 
SIP submission is triggered by a NAAQS revision and provides the public 
and the EPA an opportunity to review the basic structure of a state's 
air quality management program. It is not intended--nor can it be 
presumed--to address the adequacy of individual nonattainment SIP 
elements for purposes of the revised NAAQS.
---------------------------------------------------------------------------

    \26\ 84 FR 49663 (September 23, 2019). The Texas submission for 
this infrastructure action is posted in the docket at 
www.regulations.gov and the docket ID is EPA-R06-OAR-2018-0673.
---------------------------------------------------------------------------

    Comment: Commenters state that the EPA's January 2024 proposal 
notes that ``changing the submission requirement or implementation 
deadlines for these [Moderate attainment area] elements would delay the 
implementation of these measures beyond what the CAA intended.'' 
Commenters claim however that, like the attainment demonstration and 
RACM, all Moderate classification requirements would be superseded with 
more stringent requirements under the Serious classification, which 
eliminates the need for submittals to cover less stringent requirements 
with deadlines that have already passed to meet attainment dates that 
would no longer apply. Commenters state that the EPA must give legal 
effect to all parts of the statute--not just the parts it prefers. 
Commenters state that requiring the state to submit and have EPA act on 
these superseded Moderate classification elements would make no logical 
or practical sense.
    Response: The EPA disagrees. As noted in our January 2024 proposal, 
the attainment demonstration with respect to the Moderate attainment 
date, the RACM analysis with respect to the Moderate attainment date, 
and contingency measures for failure to attain by the Moderate 
attainment date are all dependent on the Moderate attainment date. Once 
voluntarily reclassified, the area no longer has a Moderate attainment 
date. However, the other Moderate area requirements remain in place, 
even as the state works to implement the requirements of the higher 
classification. The Moderate nonattainment SIP submission deadlines, 
including the requirements for the DFW, HGB, and San Antonio Moderate 
areas, were established when the areas were reclassified from Marginal 
to Moderate--those deadlines were not challenged and they stand as 
finalized.\27\ As noted earlier, comments addressing the Moderate 
nonattainment area submissions, with the exception of the Moderate 
attainment demonstration and the associated RACM and contingency 
measures for failure to attain by the Moderate attainment date, are 
outside the scope of this action.
---------------------------------------------------------------------------

    \27\ 87 FR 60897.
---------------------------------------------------------------------------

    While the EPA agrees that it must give legal effect to all parts of 
the statute, the CAA requirements for nonattainment areas are 
cumulative, adding more stringent requirements with each higher 
classification and building on the requirements of the lower 
classifications, and the EPA disagrees that this building of 
requirements always results in the lower classification requirements 
being superseded. As noted earlier, pursuant to CAA section 182(c), 
``each State in which all or part of a Serious Area is located shall, 
with respect to the Serious Area . . . make the submissions described 
under subsection (b) of this section (relating to Moderate Areas) and 
shall also submit the revisions to the applicable implementation plan 
(including the plan items) described under this subsection.'' Except 
for elements specifically related to the attainment date, which are 
superseded by a voluntary reclassification, the higher classification 
requirements are added to the lower classification requirements. For 
example, although the Serious area major source threshold is more 
stringent than it is for a Moderate area, this does not supersede the 
NSR requirements for any source covered under the Moderate threshold. 
Instead, NSR requirements for smaller sources under the Serious 
threshold are in addition to those for sources covered under the 
Moderate threshold.
    Our approach here is consistent with past actions to grant 
voluntary reclassifications. When Texas previously requested a 
voluntary reclassification for the HGB area from Moderate to Severe 
under the 1997 ozone NAAQS, we noted that, ``Texas has a continuing 
responsibility for certain elements of the Moderate area requirements. 
EPA has stated that reclassification does not provide a basis for 
extending submission deadlines for SIP elements unrelated to the 
attainment demonstration that were due for the area's Moderate 
classification.'' \28\ We subsequently approved the HGB RFP for the 
Moderate nonattainment area for the 1997 ozone NAAQS.\29\ We maintain 
that Texas has not been released from its CAA obligations to comply 
with SIP submission deadlines for other Moderate area requirements not 
related to the attainment demonstration.
---------------------------------------------------------------------------

    \28\ 73 FR 56983, 56991 (October 1, 2008).
    \29\ 74 FR 18298 (April 22, 2009).
---------------------------------------------------------------------------

    Comment: The commenter states that, as an alternative to all 
Moderate classification requirements being mooted, the Moderate 
classification RFP contingency measure element could be mooted for 
areas where RFP targets have been met and requests clarification on how 
to demonstrate this element is no longer required. The commenter also 
cites 85 FR 40026, a proposed reclassification action in which EPA 
proposed to determine that contingency measures for RFP were no longer 
necessary for the prior Moderate classification nonattainment plan 
because the state had adequately demonstrated that the applicable 
quantitative milestones under the Moderate plan had been met.\30\ The 
commenter states that if it can demonstrate that the RFP targets have 
been met for the San Antonio, DFW, and HGB Moderate nonattainment 
areas, the requirement to submit RFP contingency

[[Page 51836]]

measures would be unnecessary. The commenter states that since the 
milestone compliance demonstration is not required for the Moderate 
areas, the TCEQ requests clarification regarding the appropriate 
mechanism to demonstrate that the Moderate RFP targets have been met.
---------------------------------------------------------------------------

    \30\ See ``Approval and Promulgation of Implementation Plans; 
Designation of Areas for Air Quality Planning Purposes; California; 
South Coast Moderate Area Plan and Reclassification as Serious 
Nonattainment for the 2012 PM 2.5 NAAQS.'' 85 FR 40026, 
40048-40049 (July 2, 2020).
---------------------------------------------------------------------------

    Response: The EPA acknowledges that in certain unideal situations, 
where the state has demonstrated that an RFP milestone has actually 
been met and where EPA has determined that demonstration to be 
adequate, the question of whether the state has adequate contingency 
measures for failure to meet RFP with respect to that milestone can be 
moot. This situation is unideal because the CAA is not designed to 
operate this way with respect to timing, and these situations typically 
arise because the state is overdue for submitting approvable 
contingency measures. Under normal CAA timelines, the contingency 
measures submittal and EPA approval should occur before the RFP 
milestone arrives so that the contingency measures could be triggered 
if the area failed to meet RFP. States should not delay submittal of 
required contingency submittals in the hopes that they may become moot 
at a later time. Such an approach contravenes the statutory timelines 
established by the CAA, and the intent of the contingency measures 
requirement. If this situation arises and the RFP milestone is not met, 
the CAA requires implementation of contingency measures without further 
action by the state or EPA. That requirement cannot be met on time if 
the contingency measures submittal is delayed.
    For these reasons, EPA made a finding of failure to submit for 
contingency measures triggered by failure to meet RFP for the Moderate 
ozone nonattainment areas at issue here (and other elements) in October 
2023. That finding started sanctions and FIP clocks that are still 
running because these (and other elements) are still outstanding. With 
this voluntary reclassification, EPA also urges the timely submittal of 
all required elements for the Serious classification, including 
contingency measures for all Serious RFP milestones and for failure to 
attain by the Serious area attainment date.
    Under unusual circumstances in which EPA determines the Moderate 
area RFP reduction target was met before the state makes its overdue 
submittal to satisfy the requirement for Moderate contingency measures 
for failure to meet RFP, the EPA believes that no submittal of 
contingency measures for Moderate area RFP would be necessary. We 
acknowledge the EPA took a similar position within a PM 2.5 
action cited by the commenter and believe the same logic could apply 
here.
    This situation is also somewhat similar to EPA's prior disapproval 
of contingency measures in Texas for the 2008 Ozone NAAQS where we 
stated that, ``EPA agrees with TCEQ that there is no longer a need for 
contingency measures triggered by failure to meet RFP for the DFW and 
HGB Serious nonattainment plan for purposes of the 2008 8-hour ozone 
NAAQS, because these areas met RFP for this specific classification. 
However, contingency measures are still required for the failure to 
attain (and indeed, noting the fact that areas failed to attain, should 
already have taken effect).'' \31\ There, the contingency measures were 
not needed for failure to meet RFP because EPA had previously 
determined that the area had met RFP, but contingency measures were 
still needed for failure to attain. But here, as explained previously, 
with this voluntary reclassification there will be no possibility of 
failure to attain by the Moderate area attainment date, and so the 
voluntary reclassification negates the need for contingency measures 
for failure to attain for the Moderate classification. Further, an RFP 
demonstration that EPA determined to be adequate would in this case 
negate the need to submit the Moderate contingency measures for failure 
to meet RFP, thus resulting in mooting the Moderate area contingency 
measures requirement entirely. Note, however, that the first Serious 
area RFP milestone is December 31, 2026, so a timely Serious area 
contingency measures submittal by January 1, 2026, is necessary to 
ensure that contingency measures are in place before the milestone 
occurs.
---------------------------------------------------------------------------

    \31\ 87 FR 67957 (October 3, 2023).
---------------------------------------------------------------------------

    Finally, in response to the commenter's inquiry as to the 
appropriate mechanism for demonstrating that the Moderate RFP emission 
reduction targets have been met, the EPA notes that it does not have 
specific guidance or rules for this. Section 182(g) of the CAA does not 
require a milestone compliance demonstration (MCD) for Moderate areas. 
EPA expects that the process would work similar to that for PM (40 CFR 
51.1013(b)) or for other MCDs for ozone (40 CFR 51.1310(c)(2)), where 
the state would provide to the EPA Regional Administrator a formal 
demonstration (e.g., from the Governor or designee) showing the basis 
for establishing that RFP was met. The contingency measures SIP 
submittal requirement for failure to meet RFP would not be mooted 
unless and until EPA formally responds with a determination that it is 
adequate. EPA encourages the state to work with the Regional Office to 
discuss the demonstration process further.
    Comment: The TCEQ states that the EPA should allow states 
flexibility in meeting RFP requirements, especially in areas where 
states can demonstrate that required reductions would not advance 
attainment. The TCEQ states that RFP requirements for areas classified 
as Moderate nonattainment for the 2015 ozone NAAQS are incredibly 
challenging to meet due to the significant reductions in ozone 
precursor emissions since 1990. The TCEQ states that as moderate 
classification RFP targets will still need to be demonstrated for the 
Bexar County nonattainment area under the Serious classification, EPA 
should allow states to substitute NOX emissions reductions 
in place of the 15 percent reduction in VOC required for initially 
designated Moderate ozone nonattainment areas when NOX 
emissions reductions are demonstrated to be at least as effective at 
reducing ozone concentrations. The TCEQ states that it recognizes that 
the CAA mandates the 15 percent VOC emissions reductions, but 
preliminary TCEQ photochemical modeling indicates that VOC reductions 
will not advance attainment of the 2015 ozone NAAQS in Bexar County. 
The TCEQ states that instead, this modeling indicates NOX 
emissions reductions will be more effective at reducing ozone 
concentrations in Bexar County. The TCEQ states that in Bexar County, 
point sources account for less than 5 percent of the total 
anthropogenic VOC emissions, and that area sources (including emissions 
from consumer products) account for about 70 percent of anthropogenic 
VOC emissions. The TCEQ states that the EPA should not require states 
to develop regulations that are ineffective at reducing ozone, 
economically penalizing to consumers, difficult to enforce, and 
unlikely to achieve the required reductions. The TCEQ states that 
allowing states flexibility in this sphere (and others discussed 
herein) will further the CAA's cooperative federalism framework, ensure 
proper respect for the states' role in fulfilling their CAA 
obligations, and result in better outcomes consistent with the aims of 
the CAA.
    Response: We appreciate these comments and recognize the challenges 
that meeting the 15 percent VOC emissions reduction requirement can 
pose for newly designated ozone nonattainment areas. The EPA is working 
on this issue with several states to identify approaches that would be

[[Page 51837]]

allowable under the Clean Air Act including under CAA section 
182(b)(1)(A)(ii), which specifically provides that a state may use a 
percentage less than 15 percent by adopting certain requirements.
    Comment: Commenter states that the TCEQ submitted SIP revisions to 
EPA addressing Basic I/M for the San Antonio Moderate nonattainment 
area on December 18, 2023.
    Response: The EPA agrees and will act on the SIP submissions for 
Basic
    I/M for the San Antonio area in a separate rulemaking action.
    Comment: Commenters state that the EPA must require RACM to be 
adopted for the DFW, HGB, and San Antonio Moderate nonattainment areas. 
Commenters mention that courts have deferred to EPA's decisions tying 
RACM to the statutory attainment deadlines and state that EPA has 
``authority to change its approach to RACM, so long as it ``displays 
awareness that it is changing position, provides a reasoned explanation 
for the change, and is also cognizant of reliance interests on the 
agency's prior policy.'' \32\
---------------------------------------------------------------------------

    \32\ Commenter referenced Encino Motorcars, LLC v. Navarro, 579 
U.S. 211, 221-22 (2016); FCC v. Fox Television Stations, Inc., 556 
U.S. 502, 515 (2009).
---------------------------------------------------------------------------

    Response: We appreciate the information provided by the commenters. 
The EPA disagrees that RACM is required in this circumstance for the 
DFW, HGB, and San Antonio Moderate nonattainment areas. EPA has long 
interpreted the CAA requirement for ozone nonattainment areas to assess 
and implement reasonably available control measures to mean that states 
need to analyze and implement measures that advance an ozone area's 
attainment, and a measure is not RACM if it would not advance the 
attainment date (57 FR 13498, 13560).\33\ As the commenters note, this 
interpretation has been upheld by federal courts. See Sierra Club v. 
EPA, 294 F.3d 155 (D.C. Cir. 2002) and Sierra Club v. United States 
EPA, 314 F.3d 735 (5th Cir. 2002). In developing a SIP revision 
pursuant to the RACM requirement, a state must consider all potentially 
available measures to determine whether they are reasonably available 
for implementation in the area, and whether they would advance the 
area's attainment date. The state may reject any measures as not RACM 
if they would not advance the attainment date, would cause substantial 
widespread and long-term adverse impacts, or would be economically or 
technologically infeasible. Sierra Club v. EPA at 162-163 (D.C. Cir. 
2002); Sierra Club v. EPA, 314 F.3d 735 (5th Cir. 2002); BCCA Appeal 
Group v. EPA, 355 F.3d 817 (5th Cir. 2003). Following reclassification 
as Serious, to demonstrate measures that advance attainment of the 
ozone standard the emission reductions from the measures must occur no 
later than the start of the 2015 ozone NAAQS attainment season--i.e., 
by January 1, 2026 (for the HGB area) and by March 1, 2026 (for the DFW 
and San Antonio areas). Because the relevant attainment date for such 
an analysis will be the Serious area attainment date, we believe it is 
appropriate to conclude that a demonstration of RACM with respect to 
the Moderate area attainment date no longer has meaning.
---------------------------------------------------------------------------

    \33\ See also EPA's ``Guidance on the Reasonably Available 
Control Measures (RACM) Requirement and Attainment Demonstration 
Submissions for Ozone Nonattainment Areas,'' John S. Seitz, 
Director, Office of Air Quality Planning and Standards, November 30, 
1999.
---------------------------------------------------------------------------

    We acknowledge and support the commenters' claim that the EPA has 
authority to change our approach to RACM, ``so long as we display 
awareness that we are changing position, provide a reasoned explanation 
for the change, and are also cognizant of reliance interests on the 
agency's prior policy.'' However, EPA is not changing its historical 
interpretation of the RACM requirement in this action, as outlined in 
our final rule for implementation of the 2015 ozone NAAQS, which 
retains our existing general RACM requirements \34\ and our 
reclassification of areas classified as Marginal for the 2015 ozone 
NAAQS does not address any change in our approach to RACM.\35\
---------------------------------------------------------------------------

    \34\ 83 FR 62998, 63007 and 40 CFR 51.1312(c).
    \35\ 87 FR 60897.
---------------------------------------------------------------------------

    Comment: Commenters provide examples of RACM that could be quickly 
implemented in the DFW, HGB, and San Antonio nonattainment areas.
    Response: The EPA appreciates the information and examples 
provided. Following reclassification, such measures must be considered 
as Texas undertakes the required RACM analysis for the newly 
reclassified Serious areas, and Texas must evaluate these measures for 
their potential to advance the attainment date ahead of the otherwise 
applicable Serious date.
    Comment: Commenters state that reclassification as Serious does not 
change the submission requirement or implementation deadlines for these 
five SIP elements that were due January 1, 2023, for the DFW, HGB, and 
San Antonio Moderate nonattainment areas: (1) a 15 percent rate-of-
progress (``ROP'') plan, (2) contingency measures for failure to 
achieve RFP, including the 15 percent ROP requirement for Moderate 
areas, (3) a RACT demonstration, (4) NNSR rules; and (5) a Basic I/M 
program.
    Response: The EPA agrees.

C. Required Plans, and Submissions and Implementation Deadlines

1. Serious Area Plan Requirements
    Our January 2024 proposal did not propose any changes to the 
Serious area plan requirements but instead listed the SIP requirements 
that apply specifically to Serious areas, consistent with CAA sections 
172(c) and 182(c), and 40 CFR 51 Subpart CC.\36\ We received no 
comments addressing the Serious area plan requirements. Therefore, we 
are finalizing the Serious area plan requirements as proposed and such 
plan requirements are listed in Section III of this final action.
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    \36\ 89 FR 5145, 5148.
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2. Submission Deadline for the San Antonio, DFW, and HGB Area SIPs for 
the 2015 Ozone NAAQS
    We invited comments on a range of deadlines, from 12 to 18 months 
from the effective date of reclassification, for submission of the 
revised SIPs for the San Antonio, DFW, and HGB Serious nonattainment 
areas.
    Comment: Commenters provide a wide range of recommendations, 
including ``as expeditiously as possible'' and that the SIP submission 
deadline be set at 12 months. Commenters also state that the 12-month 
SIP deadline based on CAA section 179(d) has no relevance to the 
current circumstance. Commenters state that a SIP deadline of 18 months 
or longer is consistent with CAA section 110(k)(5), allowing the EPA to 
establish reasonable deadlines. Commenters also state that the EPA 
should finalize a SIP submission deadline of 18 months or January 1, 
2026, whichever is later.
    One commenter (the TCEQ) urged the EPA to set a submittal deadline 
of at least 18 months from the effective date of reclassification, but 
no sooner than January 1, 2026. The TCEQ provided justification, citing 
the substantial amount of time to conduct modeling, evaluate controls, 
develop attainment plans, and conduct rulemaking while allowing 
affected sources sufficient time to implement control requirements. The 
TCEQ added that significant resources are required to address each of 
the three reclassified Serious nonattainment areas and expressed 
concern that an expedited SIP submittal deadline would reduce the time 
needed to prepare and submit approvable SIPs. The TCEQ also expressed 
the desire to incorporate on-road and non-road emission inventories

[[Page 51838]]

in the Serious SIP revisions using the newly released version of the 
Motor Vehicle Emission Simulator (MOVES4) model, which would require 
significant work to develop inventories for multiple years and areas.
    Response: The EPA notes that the proposal pointed to CAA sections 
179(d) and 110(k)(5) as examples of statutory provisions establishing 
timeframes for states to revise SIPs in instances where SIPs had been 
insufficient to result in an area's attainment by the attainment date 
and where SIPs had been identified as substantially inadequate to 
attain the NAAQS (among other things). To the extent that the commenter 
is asserting these provisions do not directly apply to the three areas 
being voluntarily reclassified, we agree. But we do not agree that the 
timing considerations of those provisions have no relevance to 
informing EPA's consideration and establishment of the SIP submission 
deadlines contemplated here. Here, as in the situation contemplated by 
CAA section 179(d), the areas in question would fail to timely attain 
by the Moderate area attainment date, absent the state's voluntary 
request to reclassify as Serious. Here, as in the situation 
contemplated by CAA section 110(k)(5), the state's SIPs have been 
inadequate to attain the NAAQS. So, while we agree that these 
provisions do not directly apply because EPA has not made the requisite 
findings to trigger those provisions, the Act's imposition of a 12-
month clock, or an outer limit of no more than 18 months, for states to 
submit revisions addressing these conditions are informative of the 
appropriate timeframe to apply to these areas under these 
circumstances. It was therefore reasonable for EPA to propose a range 
of statutory timeframes for the SIP submission deadline that were in 
part informed by the relevant, though not directly applicable, 
statutory situations presented in CAA sections 179(d) and 110(k)(5).
    We appreciate the information provided by the TCEQ. We are 
finalizing a SIP submission deadline of 18 months from the effective 
date of this action or January 1, 2026, whichever is earlier. As noted 
in the proposal, the 2026 ozone season, which in some areas begins on 
January 1, 2026, is the last ozone season that can impact air quality 
before the areas' attainment dates in 2027. We note that commenter's 
request that we establish a SIP submission deadline of ``no sooner than 
January 1, 2026'' appears to acknowledge the significance of that date 
with respect to the statutory and regulatory constraints on SIP 
submittal deadlines and implementation. Per EPA's 2015 ozone SRR, and 
as discussed below, states must implement RACT no later than the 
beginning of the ozone season of the attainment year, see 40 CFR 
51.1312(a)(3), and it is appropriate to establish SIP deadlines no 
later than when the control measures in those SIPs are required to be 
implemented.\37\ As discussed in the proposal, EPA's action 
establishing deadlines is informed by CAA section 182(i), which governs 
the adjustment of SIP revision deadlines following a mandatory 
reclassification for failure to timely attain by the attainment date. 
That provision instructs that the Administrator may adjust deadlines 
for meeting requirements associated with the reclassification, ``to the 
extent such adjustment is necessary and appropriate to assure 
consistency among the required submissions.'' CAA section 182(i). Given 
that the beginning of the attainment year ozone season for some of 
these areas is January 1, 2026 (and for the other two it is March 1) we 
are setting the maximum SIP submission deadline as no later than 
January 1, 2026, in order to assure consistency among all of the 
state's submissions.
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    \37\ 40 CFR 51.1312(a)(2)(ii) states that the SIP revision 
deadline for a RACT SIP required pursuant to a reclassification is 
either 24 months from the effective date of the reclassification 
action, or the deadline established by the Administrator in the 
reclassification action. In this case, given that a SIP revision 
deadline of 24 months from the effective date of reclassification 
would be after the deadline for RACT implementation, we are 
establishing a deadline in this reclassification action.
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    We are finalizing this more extended timeframe for submitting the 
Serious area requirements (as opposed to 12 months, which was also 
contemplated in the proposal), because we acknowledge, as raised by the 
commenter, the complexity in developing and implementing effective 
emission reductions for the areas, and the opportunity a longer 
timeframe provides for more robust attainment demonstration plans that 
include the newer MOVES modeling. Developing and implementing effective 
emission reductions for these areas is complex due to the complex 
coastal meteorology and large industrial area in the HGB area, and the 
large urban and growing populations in all three areas. With a SIP 
submission deadline of 18 months from the effective date of this action 
but no later than January 1, 2026, we believe the TCEQ will be able to 
use the best information available in its Serious SIP submissions, 
while ensuring that SIP elements requiring control measures needed for 
attainment are submitted no later than when those controls are required 
to be implemented.
3. Implementation Deadline for RACT
    Comment: A commenter states that there is no way for RACT to be 
implemented sooner, or more expeditiously, than the latest date 
required by the CAA. Commenters state that the EPA should set 
implementation deadlines for RACT by area instead of imposing one 
blanket deadline. Commenters state that the EPA has inappropriately 
proposed the same RACT implementation deadline (i.e., January 1, 2026) 
for all three areas without considering the circumstances of each area. 
Commenters state that the different ozone seasons, historic frequency 
of ozone exceedances, emission sources, and timelines for emission 
control compliance support different implementation deadlines. 
Commenters state that the ozone season for the HGB nonattainment area 
begins on January 1, but the ozone season for the DFW and San Antonio 
nonattainment areas begins on March 1. Commenters state that 
implementing RACT at the start of the ozone season would not likely 
influence the design values as most of the highest ozone observations 
occur in May or later for all three areas. Commenters provide, as an 
example, ``the HGB area has not measured an eight-hour ozone 
concentration greater than 70 ppb before March 1 for over 10 years so 
the requirement for RACT implementation by January 1, 2026, would not 
benefit the area's design value.'' Commenters state that advancing 
attainment of the area is not a factor of consideration when evaluating 
RACT and therefore, it is not imperative that RACT be implemented by no 
later than the beginning of the attainment year ozone season; and it is 
inadequate support for requiring RACT implementation dates to be 
uniform for all nonattainment areas.
    Commenters state that the EPA should finalize RACT implementation 
deadlines to allow affected entities to comply with RACT on a timeline 
that considers sources' ability to control emissions based on 
technological and economic feasibility, which are primary factors in 
determining RACT. Commenters state that the ability to control could 
vary between sources, source categories, and areas, particularly for 
Bexar County, and additional time may be needed to allow affected 
sources to comply with new rules. Commenters state that compliance may 
necessitate that affected sources purchase, install, test, and operate 
new equipment or control devices, and even if new

[[Page 51839]]

regulations only require affected sources to replace higher VOC-content 
materials with lower VOC-content materials, owners and operators would 
still need time to address existing stocks, find suppliers, and order 
new supplies.
    Response: We appreciate these comments. Texas is now required to 
submit SIP revisions to implement RACT level controls for all three 
nonattainment areas now classified as Serious, which includes a lower 
Serious area source threshold of a potential to emit 50 tpy or more 
down from the Moderate area level of 100 tpy.
    RACT-level controls should already be largely implemented in the 
DFW and HGB areas for sources within the Serious area source threshold, 
as these two areas were reclassified from Moderate to Serious for the 
2008 ozone NAAQS, effective September 23, 2019, and the required RACT 
implementation deadlines were August 3, 2020, and July 20, 2021.\38\ 
Any delays in implementing the more stringent requirements associated 
with reclassification would delay related air quality improvements and 
human health benefits for residents across these areas, including those 
that may already bear a disproportionate burden of pollution, as shown 
in the Environmental Justice (EJ) considerations referenced in our 
January 2024 proposal and included in the docket for this action.
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    \38\ See 84 FR 44238 (August 23, 2019). The implementation 
deadline for RACT measures tied to attainment was August 3, 2020, 
and the implementation deadline for RACT measures not tied to 
attainment was July 20, 2021.
---------------------------------------------------------------------------

    We appreciate the TCEQ's comments addressing eight-hour ozone 
concentrations greater than 70 ppb before March 1 in the HGB area. We 
reviewed the State's data for the San Antonio, DFW, and HGB areas for 
January and February, from 2013 through 2024, and did not see any 
regulatory monitors with concentrations over 70 ppb.\39\ However, 
consistent with our January 2024 proposal and the EPA's implementing 
regulations for the 2015 ozone NAAQS, for RACT required pursuant to 
reclassification, for the HGB area we are finalizing the Serious RACT 
implementation deadline to be as expeditiously as practicable, but no 
later than the start of the attainment year ozone season associated 
with the area's new attainment deadline, which is January 1, 2026.\40\ 
For the DFW area, consistent with our January 2024 proposal and the 
EPA's implementing regulations for the 2015 ozone NAAQS, for RACT 
required pursuant to reclassification we are finalizing the Serious 
RACT implementation deadline to be as expeditiously as practicable, but 
no later than the start of the attainment year ozone season associated 
with the area's new attainment deadline, which is March 1, 2026.\41\
---------------------------------------------------------------------------

    \39\ https://www.tceq.texas.gov/cgi-bin/compliance/monops/8hr_monthly.pl
    \40\ See 40 CFR 51.1312(a)(3)(ii).
    \41\ Ibid.
---------------------------------------------------------------------------

    We appreciate the TCEQ's concerns regarding RACT in Bexar County. 
However, the implementation deadline for the Moderate area RACT was 
January 1, 2023, and by this time, implementation of RACT for the 
Moderate area should already be underway in the San Antonio area. 
Accordingly, most sources should already be under RACT controls for the 
Moderate classification and this voluntary reclassification as Serious 
will add those sources emitting less than 100 tpy that have the 
potential to emit 50 tpy or more. In addition, and as noted earlier, 
delays in implementing the more stringent requirements associated with 
reclassification would delay related air quality improvements and human 
health benefits for residents across the San Antonio nonattainment 
area, including those that may already bear a disproportionate burden 
of pollution, as shown in the EJ considerations referenced in our 
January 2024 proposal and included in the docket for this action. 
Therefore, consistent with our January 2024 proposal and the EPA's 
implementing regulations for the 2015 ozone NAAQS, for RACT required 
pursuant to reclassification we are finalizing the Serious RACT 
implementation deadline to be as expeditiously as practicable, but no 
later than the start of the attainment year ozone season associated 
with the area's new attainment deadline, which is March 1, 2026.\42\
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    \42\ Ibid.
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4. Implementation Deadline for Enhanced I/M Programs
    Comment: The Office of the Harris County Attorney states that 
vehicle emissions in Harris County are especially important in tackling 
ozone because the area's vehicle emissions will likely increase in the 
next several years as heavy traffic and population increase. The 
commenter believes a three-year deadline is reasonable and more 
appropriate than the proposed four-year deadline.
    Response: We appreciate the commenter's concerns. The HGB (which 
includes Harris County), as well as the DFW, Serious ozone 
nonattainment areas are currently implementing Enhanced I/M pursuant to 
the requirements for the 2008 ozone NAAQS.\43\ However, as described in 
our January 2024 proposal and consistent with the I/M regulations, for 
the existing Enhanced I/M programs in these areas, the TCEQ would need 
to conduct and submit a performance standard \44\ modeling (PSM) 
analysis \45\ as well as make any necessary program revisions as part 
of the Serious area I/M SIP submissions to ensure that I/M programs are 
operating at or above the Enhanced I/M performance standard level for 
the 2015 ozone NAAQS.\46\ The TCEQ may determine through the PSM 
analysis that an existing SIP-approved program would meet the Enhanced 
performance standard for purposes of the 2015 ozone NAAQS without 
modification. In this case, the TCEQ could submit an I/M SIP revision 
with the associated performance modeling and a written statement 
certifying their determination in lieu of submitting new revised 
regulations.\47\ To this end, the TCEQ included a PSM analysis for the 
existing Enhanced I/M program in Appendix C of the SIP revisions, 
proposed by the State on May 31, 2023, for the DFW and HGB Moderate 
attainment demonstrations for the 2015 ozone NAAQS.\48\ The EPA will 
address these SIP revisions in a separate future action after the TCEQ 
has finalized the proposed I/M SIP revisions and submitted them to the 
EPA for consideration.
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    \43\ See 88 FR 61971 (September 8, 2023).
    \44\ An I/M performance standard is a collection of program 
design elements which defines a benchmark program to which a state's 
proposed program is compared in terms of its potential to reduce 
emissions of the ozone precursors, VOC, and NOX.
    \45\ See Performance Standard Modeling for New and Existing 
Vehicle Inspection and Maintenance (I/M) Programs Using the MOVES 
Mobile Source Emissions Model (October 2022, EPA-420-B-22-034) at 
https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P1015S5C.pdf.
    \46\ 40 CFR 51.372(a)(2).
    \47\ See Implementation of the 2015 National Ambient Air Quality 
Standards for Ozone: Nonattainment Area Classifications and State 
Implementation Plan Requirements, 83 FR 62998, 63001-63002 (December 
6, 2018). Performance standard modeling is also required for 
Enhanced I/M programs in Serious and above ozone nonattainment areas 
for the 2015 ozone NAAQS.
    \48\ The DFW proposed SIP revision is identified as Project No. 
2022-021-SIP-NR and the HGB proposed SIP revision is identified as 
Project No. 2022-022-SIP-NR. The Texas proposed SIP revisions are 
posted at https://www.tceq.texas.gov/airquality/sip/Hottop.html.
---------------------------------------------------------------------------

    We also discussed in our January 2024 proposal that if the State 
wishes to rely upon emission reductions from any revisions to its I/M 
programs in SIPs demonstrating attainment or RFP, the State would need 
to fully implement these I/M program revisions as expeditiously as 
practicable but no later than the beginning of the applicable

[[Page 51840]]

attainment year, i.e., January 1, 2026 for the HGB area and March 1, 
2026 for the DFW and San Antonio areas. However, the EPA has long taken 
the position that, like VOC RACT, the statutory requirement for states 
to implement I/M in ozone nonattainment areas classified Moderate and 
higher generally exists independently from the attainment planning 
requirements for such areas.\49\ Thus, EPA believes that if the 
emission reductions from any I/M program revisions are not relied upon 
to demonstrate attainment by the attainment deadline or towards RFP for 
the 2015 ozone NAAQS, then an implementation deadline of no more than 
four years after the effective date of reclassification is reasonable 
given the unique nature of I/M programs and the many challenges, tasks, 
and milestones that must be met in implementing an Enhanced I/M 
program.
---------------------------------------------------------------------------

    \49\ John S. Seitz, Memo, ``Reasonable Further Progress, 
Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard,'' May 10, 1995, at 4.
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    Furthermore, giving up to a four-year timeframe to implement 
Enhanced I/M in reclassified Serious nonattainment areas (that do not 
rely upon emission reductions from the new or revised Enhanced I/M 
programs for attainment demonstration or RFP SIP purposes) is 
consistent with the no more than four-year I/M implementation period 
established in the recent final rule that reclassified Marginal 
nonattainment areas to Moderate for the 2015 ozone NAAQS (which 
triggered requirements for Basic I/M programs).\50\ Therefore, the EPA 
is finalizing its proposed deadline, that any new or revised Enhanced 
I/M programs, not intending to rely upon emission reductions from the 
new or revised Enhanced I/M programs for attainment demonstration or 
RFP SIP purposes, are to be fully implemented as expeditiously as 
practicable but no later than four years after the effective date of 
this final action.
---------------------------------------------------------------------------

    \50\ See 87 FR 60897.
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    Comment: The commenter disagrees that it is necessary to establish 
a January 1, 2026, implementation date for the Enhanced I/M program 
under the Serious classification in order to use the emissions 
reductions toward meeting Serious area attainment demonstration and RFP 
SIP obligations. The commenter states that the EPA has not provided a 
rationale for why newly required Enhanced I/M programs for the 2015 
ozone standard would have to be fully implemented by no later than 
January 1, 2026, the beginning of the Serious classification attainment 
year. The commenter contends that if emissions reductions from 
implementation of an Enhanced I/M program can be used for meeting SIP 
requirements under the Serious classification, the reductions can be 
based on when the program starts within the attainment year. The 
commenter states that emissions reductions from I/M programs are 
variable, depending on the number of vehicles tested in any given 
month, the vehicles' emissions profiles, and state of repair.
    Response: We appreciate these comments. However, as mentioned in 
our proposal and the SRR for the 2015 ozone NAAQS, all control measures 
in the attainment plan and demonstration must be implemented no later 
than the beginning of the attainment year ozone season, notwithstanding 
any alternate RACT and/or RACM implementation deadline requirements in 
40 CFR 51.1312 (see 40 CFR 51.1308(d) and 83 FR 62998). Therefore, for 
those areas intending to rely upon emissions reductions from any 
revisions to its I/M programs for the Serious attainment demonstration 
or RFP SIP purposes, it is necessary to establish an I/M implementation 
deadline of no later than the start of the attainment year ozone 
season.
    The EPA is finalizing its proposed deadline, that any new or 
revised Enhanced I/M programs, intending to rely upon emission 
reductions from the new or revised Enhanced I/M programs for attainment 
demonstration or RFP SIP purposes, are to be fully implemented as 
expeditiously as practicable but no later than January 1, 2026 (for the 
HGB area) and March 1, 2026 (for the DFW and San Antonio areas).
5. Reporting Deadline for the Transportation Control Demonstration
    We received no comments addressing the reporting deadline for the 
transportation control demonstration. Therefore, consistent with our 
proposal and CAA section 182(c)(5), the first transportation control 
demonstration is due no later than January 1, 2028, which is two years 
after the attainment demonstration SIP is due, and subsequent 
transportation control demonstrations are due every three years 
thereafter.
Environmental Justice
    Comment: The Office of the Harris County Attorney states that EPA 
provides an analysis of the HGB area's environmental justice (EJ) 
considerations in the proposed rule and notes that analyzing Harris 
County and its population with the inclusion of two other counties 
might not be the most accurate or effective way of understanding the EJ 
issues in Harris County. The commenter states that Harris County is 
geographically larger than Rhode Island, has a population larger than 
several states, is the third largest county in the United States, and 
has a sizable income gap. The commenter states that Harris County 
contains urban, suburban, and rural populations and does not have 
zoning laws, so commercial and industrial areas are often sited within 
or near residential areas, and consequently, neighborhoods in Harris 
County experience ozone pollution and EJ factors in different degrees. 
The commenter states that EPA noted this discrepancy in denying Texas's 
request for a 1-year extension of the attainment date for the HGB area 
for the 2008 ozone NAAQS--EPA based its denial, in part, on 
``considerations of existing pollution burdens for some communities 
within the area.'' \51\ The commenter states that EPA noted communities 
residing and working near violating ozone monitors in the Houston area 
and the Houston Ship Channel are exposed to a significant and 
disproportionate burden of ozone pollution and other sources of 
pollution (e.g., vehicle traffic and particulate matter emissions) 
compared to the greater Houston area and the U.S. as a whole.\52\ The 
commenter asks the EPA to factor this disparity between populations in 
Harris County into future EJ analysis in actions concerning Harris 
County.
---------------------------------------------------------------------------

    \51\ 87 FR 60926, 60927 (October 7, 2022).
    \52\ Ibid, page 60929. Emphasis added by the commenter.
---------------------------------------------------------------------------

    Response: The EPA appreciates these comments.
    Comment: Commenters state that the EPA's analysis failed to 
identify that EJScreen indicators in Bexar County exceed the 80th 
percentile for particulate matter and ozone pollution, although a graph 
provided in the docket did so.\53\ Commenters state that this 
information does not change the result, but it is essential that EPA 
accurately identify environmental justice issues.
---------------------------------------------------------------------------

    \53\ See ``Environmental Justice Considerations'' in the docket 
for this action.
---------------------------------------------------------------------------

    Response: The EPA appreciates these comments.

D. General

    Comment: The TCEQ states that the EPA should conduct rulemaking to 
establish requirements for approvable contingency measures or, in the 
absence of rulemaking, finalize and respond to the comments submitted 
on the March 2023 draft guidance on contingency measure requirements. 
Commenters

[[Page 51841]]

state that finalization of this guidance is necessary for the TCEQ to 
meet the deadlines required for SIP development related to this 
reclassification action and to develop effective measures that EPA may 
find approvable.
    Response: The EPA acknowledges this comment. Our draft guidance 
serves as a useful interim statement of EPA policy that can inform 
States' contingency measures SIP development. As to the necessity or 
desirability of EPA conducting a rulemaking or finalizing guidance, or 
the timing thereof, these comments are outside the scope of this 
action. With respect to TCEQ's concerns about developing approvable 
contingency measures for the Serious attainment plan in the absence of 
finalized guidance, EPA staff is available to assist the TCEQ in the 
development and implementation of approvable contingency measures that 
are consistent with the statute and relevant court decisions.
    Comment: Commenters state that it is not logical to run a sanctions 
clock for deadlines that have already passed and will be reset based on 
a higher classification. Commenters state that the EPA should terminate 
all sanctions clocks associated with its October 2023 findings. Other 
commenters state that the EPA should move forward with FIPs under the 
October 2023 findings.
    Response: The EPA did not propose sanctions in our January 2024 
proposal. Comments addressing our October 2023 findings are outside the 
scope of this action. However, as discussed in detail elsewhere in this 
final action, all Moderate area requirements remain in effect with the 
exception of the Moderate attainment demonstration, contingency 
measures associated with failure to attain by the Moderate attainment 
date, and RACM associated with the Moderate area attainment date.
    Comment: Commenters state that the EPA is well within its authority 
to direct for any judicial review of final action to the D.C. Circuit.
    Response: The EPA appreciates these comments.

III. Final Action

    Pursuant to CAA section 181(b)(3), we are granting the Texas 
Governor's request to voluntarily reclassify the San Antonio, DFW, and 
HGB nonattainment areas from Moderate to Serious for the 2015 ozone 
NAAQS. The EPA is also finalizing a deadline of 18 months from the 
effective date of this action or January 1, 2026, whichever is earlier, 
for the TCEQ to submit SIP revisions addressing the CAA Serious ozone 
nonattainment area requirements for the San Antonio, DFW, and HGB 
areas. The Serious area requirements include Enhanced monitoring (CAA 
section 182(c)(1)); Emissions inventory and emissions statement rule 
(40 CFR 51.1300(p) and 40 CFR 51.1315); RFP (40 CFR 51.1310); 
Attainment demonstration and RACM (40 CFR 51.1308 and 40 CFR 
51.1312(c)); RACT (40 CFR 51.1312); Nonattainment NSR (40 CFR 51.1314 
and 40 CFR 51.165); Enhanced I/M (CAA section 182(c)(3) and 40 CFR 51 
Subpart S); Clean-fuel vehicle programs (CAA section 182(c)(4); and 
Contingency measures (CAA sections 172(c)(9) and 182(c)(9)). In 
addition, a demonstration evaluating the need for a transportation 
control measure program (CAA section 182(c)(5)) is also required. We 
are also finalizing deadlines for implementation of new RACT controls: 
in the HGB area, implementation shall occur as expeditiously as 
practicable but no later than January 1, 2026, and in the San Antonio 
and DFW areas implementation shall occur as expeditiously as 
practicable but no later than March 1, 2026. We are also finalizing a 
deadline for any new or revised Enhanced I/M programs in the HGB area 
to be fully implemented as expeditiously as practicable but no later 
than January 1, 2026, if emission reductions from I/M program revisions 
are relied upon for attainment demonstration or RFP SIP purposes and no 
later than four years after the effective date of the final action 
reclassifying these areas as Serious for the 2015 ozone NAAQS if 
emission reductions from I/M program revisions are not relied upon for 
attainment demonstration or RFP SIP purposes. We are also finalizing a 
deadline for any new or revised Enhanced I/M programs in the San 
Antonio and DFW areas to be fully implemented as expeditiously as 
practicable but no later than March 1, 2026, if emission reductions 
from I/M program revisions are relied upon for attainment demonstration 
or RFP SIP purposes and no later than four years after the effective 
date of the final action reclassifying these areas as Serious for the 
2015 ozone NAAQS if emission reductions from I/M program revisions are 
not relied upon for attainment demonstration or RFP SIP purposes. We 
are also finalizing a deadline for the first transportation control 
demonstration, as required by CAA section 182(c)(5), of no later than 
January 1, 2028, and for subsequent transportation control 
demonstrations every 3 years thereafter.

IV. Environmental Justice Considerations

    As stated in our January 2024 proposal and for informational 
purposes only, EPA conducted screening analyses of the San Antonio, 
DFW, and HGB areas using EPA's Environmental Justice (EJ) screening 
tool (EJScreen tool, version 2.2).\54\ The results of this analysis are 
provided for informational and transparency purposes, not as a basis of 
our proposed action. The EJScreen analysis reports are available in the 
docket for this rulemaking. The EPA found, based on the EJScreen 
analyses, that this final action will not have disproportionately high 
or adverse human health or environmental effects on a particular group 
of people, because EPA's granting of the Texas Governor's request to 
reclassify the San Antonio, DFW, and HGB ozone nonattainment areas from 
Moderate to Serious will require ongoing reductions of ozone precursor 
emissions, as required by the CAA. Specifically, this final rule would 
require that Texas submit plans for each area including: Enhanced 
monitoring (CAA section 182(c)(1)); Emissions inventory and emissions 
statement rule (40 CFR 51.1300(p) and 40 CFR 51.1315); RFP (40 CFR 
51.1310); Attainment demonstration and RACM (40 CFR 51.1308 and 40 CFR 
51.1312(c)); RACT (40 CFR 51.1312); Nonattainment NSR (40 CFR 51.1314 
and 40 CFR 51.165); Enhanced I/M (CAA section 182(c)(3) and 40 CFR 51 
Subpart S); Clean-fuel vehicle programs (CAA section 182(c)(4); 
Contingency measures (CAA sections 172(c)(9) and 182(c)(9)); and a 
demonstration evaluating the need for a transportation control measure 
program (CAA section 182(c)(5)). These required measures would help to 
improve air quality in the affected nonattainment areas. Information on 
ozone and its relationship to negative health impacts can be found at 
https://www.epa.gov/ground-level-ozone-pollution.
---------------------------------------------------------------------------

    \54\ See https://www.epa.gov/ejscreen.
---------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review, Executive 
Order 13563: Improving Regulation and Regulatory Review, and Executive 
Order 14094: Modernizing Regulatory Review

    This final action is not a significant regulatory action as defined 
in Executive Order 12866, as amended by Executive Order 14094, and was 
therefore not subject to a requirement for Executive Order 12866 
review. Because the statutory requirements are clearly defined with 
respect to the differently classified areas, and because those 
requirements are automatically triggered by reclassification, the 
timing of the submittal of the Serious area

[[Page 51842]]

requirements does not impose a materially adverse impact under 
Executive Order 12866.

B. Paperwork Reduction Act (PRA)

    This final action does not impose an information collection burden 
under the provisions of the PRA.

C. Regulatory Flexibility Act (RFA)

    I certify that this final rule will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
final action will not impose any requirements on small entities. 
Granting a request to reclassify an area to the next higher 
classification does not in and of itself create any new requirements 
beyond what is mandated by the CAA. Instead, this rulemaking only makes 
factual conclusions, and does not directly regulate any entities.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This final action does not contain an unfunded mandate of $100 
million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The final action 
imposes no new enforceable duty on any State, local or Tribal 
governments or the private sector.

E. Executive Order 13132: Federalism

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

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

    This final action does not have Tribal implications as specified in 
Executive Order 13175. There are no Indian reservation lands or other 
areas where the EPA or an Indian tribe has demonstrated that a tribe 
has jurisdiction within the San Antonio, DFW, or HGB ozone 
nonattainment areas. Therefore, this final action does not have tribal 
implications and will not impose substantial direct costs on tribal 
governments or preempt tribal law as specified by Executive Order 
13175.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern health or safety risks that the EPA has 
reason to believe may disproportionately affect children, per the 
definition of ``covered regulatory action'' in section 2-202 of the 
Executive Order. This action is not subject to Executive Order 13045 
because it does not establish an environmental standard intended to 
mitigate health or safety risks.

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

    This final action does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and Low-
Income Populations and Executive Order 14096: Revitalizing Our Nation's 
Commitment to Environmental Justice for All

    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    This final action would reclassify the San Antonio, DFW, and HGB 
nonattainment areas from Moderate to Serious for the 2015 ozone NAAQS, 
set deadlines for the submission of revised SIPs addressing the Serious 
area requirements for these three nonattainment areas, and set 
deadlines for implementation of controls required for these three 
nonattainment areas. This final does not revise measures in the current 
SIP. As such, at a minimum, this action would not worsen any existing 
air quality and is expected to ensure the areas are meeting 
requirements to attain and/or maintain air quality standards. Further, 
there is no information in the record indicating this action is 
expected to have disproportionately high or adverse human health or 
environmental effects on a particular group of people. The EPA 
performed an environmental justice analysis, as described earlier in 
this action under ``Environmental Justice Considerations.'' The 
analysis was done for the purpose of providing additional context and 
information about this action to the public, not as a basis of the 
action.

K. Congressional Review Act (CRA)

    This final rule is exempt from the CRA because it is a rule of 
particular applicability. The rule makes factual determinations for 
specific entities and does not directly regulate any entities. The 
EPA's approval to grant the request to reclassify does not in itself 
create any new requirements beyond what is mandated by the CAA.

L. 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 August 19, 2024. 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 81

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

    Dated: June 10, 2024.
Earthea Nance,
Regional Administrator, Region 6.

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

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

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


[[Page 51843]]


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

Subpart SS--Texas

0
2. Section 81.344 is amended in the table for ``Texas--2015 8-Hour 
Ozone NAAQS [Primary and Secondary]'' by revising the entries for 
``Dallas-Fort Worth, TX'', ``Houston-Galveston-Brazoria, TX'', and 
``San Antonio, TX'' to read as follows:


Sec.  81.344   Identification of plan.

* * * * *

                                         Texas--2015 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                             Designation                             Classification
     Designated area \1\      ----------------------------------------------------------------------------------
                                  Date \2\               Type                 Date \2\               Type
----------------------------------------------------------------------------------------------------------------
Dallas-Fort Worth, TX........  ..............  Nonattainment..........  July 22, 2024.......  Serious.
    Collin County.
    Dallas County.
    Denton County.
    Ellis County.
    Johnson County.
    Kaufman County.
    Parker County.
    Tarrant County.
    Wise County.
 
                                                  * * * * * * *
Houston-Galveston-Brazoria,    ..............  Nonattainment..........  July 22, 2024.......  Serious.
 TX.
    Brazoria County.
    Chambers County.
    Fort Bend County.
    Galveston County.
    Harris County.
    Montgomery County.
San Antonio, TX..............       9/24/2018  Nonattainment..........  July 22, 2024.......  Serious.
    Bexar County.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the
  boundaries of any area of Indian country in this table, including any area of Indian country located in the
  larger designation area. The inclusion of any Indian country in the designation area is not a determination
  that the state has regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is August 3, 2018, unless otherwise noted.

* * * * *
[FR Doc. 2024-13193 Filed 6-18-24; 8:45 am]
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