[Federal Register: October 1, 2008 (Volume 73, Number 191)]
[Rules and Regulations]
[Page 56983-56995]
[DOCID:fr01oc08-10]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R06-OAR-2007-0554; FRL--8721-8]

Clean Air Act Reclassification of the Houston/Galveston/Brazoria
Ozone Nonattainment Area; Texas; Final Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting a request by the Governor of the State of
Texas to voluntarily reclassify the Houston/Galveston/Brazoria (HGB)
ozone nonattainment area from a moderate 8-hour ozone nonattainment
area to a severe 8-hour ozone nonattainment area. EPA is also setting
April 15, 2010, as the date for the State to submit a revised State
Implementation Plan (SIP) addressing the severe ozone nonattainment
area requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on October 31, 2008.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R06-OAR-2007-0554. All documents in the docket
are listed at http://www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the Air Planning Section (6PD-L), Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made
available by appointment for public inspection in the Region 6 Freedom
of Information Act (FOIA) Review Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal holidays. Contact the person
listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr.
Bill Deese at<PHONE_NUMBER> to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a 15 cent per page fee for making photocopies of
documents. On the day of the visit, please check in at the EPA Region 6
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Carl Young, Air Planning Section (6PD-
L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite
700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>; fax number
214-665-7263; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'',
``us'', and ``our'' are used, we mean the EPA.

Table of Contents

I. What Is the Background for This Action?
II. What Action Is EPA Taking?
III. What Comments Did EPA Receive on the December 31, 2007,
Proposal and How Has EPA Responded to Them?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

    The HGB area consists of Brazoria, Chambers, Fort Bend, Galveston,
Harris, Liberty, Montgomery and Waller counties. On April 30, 2004, we
classified the area as a moderate nonattainment area for the 1997 8-
hour ozone standard, with an attainment date no later than June 15,
2010 (69 FR 23858). On June 15, 2007, we received a request from the
Governor of Texas seeking voluntary reclassification of the HGB area
from a moderate nonattainment area to a severe nonattainment area under
the 1997 standard. On December 31, 2007, we proposed to reclassify the
HGB area to a severe nonattainment area for the 1997 8-hour ozone
standard (72 FR 74252). In our proposal we discussed the consequences
of reclassification. We also proposed and solicited comment on a range
of dates, from December 15, 2008 to April 15, 2010, for the State to
submit a revised SIP addressing the severe ozone nonattainment
requirements. In this final rulemaking, for the reasons set forth below
in Section II and in the responses to comments, we are (1)
reclassifying the HGB area as a severe nonattainment area for the 1997
8-hour ozone standard and (2) selecting April 15, 2010 as the deadline
by which the State must submit a revised SIP addressing the applicable
severe area requirements.\1\
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    \1\ In our December 31, 2007 proposal we stated that a revised
8-hour SIP submittal must contain fees on major sources if the area
fails to attain the standard (CAA 182(d)(3) and 185). Currently EPA
is developing regulations and guidance to address section 185 fees.
The regulations and guidance will supersede any conflicting
requirements in this final action.
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II. What Action Is EPA Taking?

A. Reclassification of the HGB Area

    After fully considering all comments received on the proposed rule
and pursuant to CAA section 181(b)(3), the HGB area is reclassified as
a severe nonattainment area for the 1997 8-hour ozone standard. The new
severe area attainment date for the HGB area is as expeditiously as
practicable, but no later than June 15, 2019. The plain language of CAA
section 181(b)(3) mandates that we approve the request to reclassify
the area to severe, as requested by the Governor of Texas, and that we
have no discretion to deny the request. Section 181(b)(3) provides in
relevant part that ``[t]he Adminstrator shall grant the request of any
State to reclassify a nonattainment area in that State in accordance
with table 1 of subsection (a) of this section to a higher
classification.''
    A revised SIP for the HGB area must include all the requirements
for serious ozone nonattainment area plans, such as: (1) Enhanced
ambient monitoring (CAA section 182(c)(1)); (2) an enhanced vehicle
inspection and maintenance program (CAA section 182(c)(3)); (3) a clean
fuel vehicle program or an approved substitute (CAA section 182(c)(4)),
and (4) gasoline vapor recovery for motor vehicle refueling emissions
(CAA section 182(b)(3) \2\). The revised SIP must also meet the severe
area requirements, including: (1) An attainment demonstration (40 CFR
51.908); (2) provisions for reasonably available control technology
(RACT) and reasonably available control

measures (RACM) (40 CFR 51.912); (3) reasonable further progress (RFP)
reductions in volatile organic compound (VOC) and nitrogen oxide
(NOX) emissions (40 CFR 51.910); (4) contingency measures to
be implemented in the event of failure to meet a milestone or attain
the standard (CAA sections 172(c)(9) and 182(c)(9)); (5) transportation
control measures to offset emissions from growth in vehicle miles
traveled (CAA section 182(d)(1)(A)); (6) reformulated gasoline (CAA
section 211(k)(10)(D)); and (7) NSR permits (40 CFR part 165). See also
the requirements for serious and severe ozone nonattainment areas set
forth in CAA sections 182(c), 182(d) and 185. Because the HGB area was
classified as severe under the 1-hour ozone standard, many of these
requirements are currently being implemented.
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    \2\ Under CAA section 202(a)(6) gasoline vapor recovery remains
a requirement for serious and above nonattainment areas but is no
longer a requirement for moderate nonattainment areas. Please see 59
FR 16262, April 6, 1994.
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B. Deadline for Submission of Revised SIP

    In our proposal to this final rule, we identified a range of dates
and requested supporting information to consider in setting the
appropriate severe classification submittal date. We received a number
of comments discussing the full range of dates offered. We considered
each comment carefully before setting a submission date. Since CAA
section 181(b)(3) does not establish a precise timeframe for submitting
an attainment plan under a voluntary reclassification request, we
reviewed the information provided by commenters and other information
in the record before us and the particular set of circumstances related
to HGB to establish a deadline that is consistent with and that will
ensure that the 8-hour ozone standard will be attained as expeditiously
as practicable but no later than June 15, 2019. After fully considering
all comments received on the proposed rule and pursuant to CAA section
181(b)(3) we find that April 15, 2010, is the appropriate SIP submittal
date for a revised SIP.
    In selecting the April 15, 2010 date, we considered that this would
allow the amount of time necessary to incorporate more recently
available information into the photochemical modeling and provide time
for control strategy development. The new information includes improved
meteorological information available from the Texas Air Quality Study
II (TexAQS II study) which took place in the 2005 and 2006 time period,
improved emissions data from the HRVOC source monitoring rules that
took effect in 2006, greater ambient data available from the TexAQS II
study and incorporation of more advanced modeling techniques. An
earlier date for submissions would have required the use of existing
modeling episodes without the benefit of this more recent data. EPA
believes, with this more robust data set, a more reliable control
strategy can be developed. We discuss the points in more detail below.
    Historically, the Houston area meteorology has been very difficult
to model due to a combination of issues. The Houston area meteorology
is very complex and is impacted by both a land/sea breeze interaction
and a bay breeze function that make meteorological modeling of the area
difficult. Modeling of other meteorological phenomena such as frontal
passages/weak fronts, nocturnal jets, convergence zones, etc.; are also
difficult to model and made even more difficult by the land/sea/bay
breeze influences. TexAQS II data includes meteorological observations
from numerous surface sites, two towers, hundreds of balloons, five
aircraft, a research vessel and an offshore platform. These data will
help to characterize important meteorological phenomena affecting ozone
in the HGB area, including land/sea/bay breeze, nocturnal jets,
stagnation, frontal passages, dispersion and mixing of ozone
precursors, and transport.
    Photochemical modeling of the Houston Area is also complicated by
the significant difference between reported emissions from industrial
sources and emissions estimated from actual monitored emissions from
ambient concentrations. Previous 1-hour modeling included in a 2004 HGB
1-hour ozone SIP showed the benefit of modeling episodes that had more
data collected than normal, such as in a field study. In the past,
adjustments to reported emissions have been necessary to resolve the
discrepancy between the emissions inventory and emissions estimated
from ambient measurements. The field study data from 2005 and 2006 will
help identify and quantify any continuing discrepancies between
reported and actual emissions. During 2006, intensive monitoring was
conducted that included monitoring from aircraft, intensive monitoring
from a ship based platform, additional ground monitoring, collection of
hourly specific emission inventory information for over 100 industrial
facilities, and numerous additional meteorological monitoring sites.
TCEQ has chosen to include episodes from 2006 that will benefit from
the additional data and will result in higher confidence in any
emission inventory adjustments that are done and the resulting
photochemical modeling.
    In addition, a large amount of federal, state, and scientific
community resources have been enlisted to refine and analyze the data
collected for use in the new 2005 and 2006 modeling. Analyses from the
TexAQS II study only recently have become available in 2007 and 2008,
and are critical to guiding the TCEQ modeling development and
validating the results. Texas should be allowed time to incorporate
these results, since otherwise the modeling would then likely need to
be redone to incorporate these findings. We expect the TexAQS II data
will contribute to better understanding of the adequacy of emissions
inventories in several key areas, including shipping, onroad mobile
sources, industrial VOCs and formaldehyde. It should also aid in the
representation of chemical pathways in the models, since key parameters
controlling the formation and destruction of ozone in the HGB area were
investigated. Texas is also engaged in a number of activities to
improve the model's ability to replicate the complex interactions
leading to high ozone, including model enhancements to incorporate
temperature variations, better land use and land cover data, improved
information on biogenic emissions, better data for emissions and
monitored concentrations, and advanced modeling techniques. See TCEQ
Comments, page 3. TCEQ is modeling more than 50 episode days while
making improvements in the modeling process and incorporating TexAQS II
results.
    TCEQ estimates it will take until March 2009 to complete the
modeling work and associated quality assurance and peer review to
support a proposed modeling and attainment demonstration. An April 15,
2010 submission date will allow a little more than a year for control
strategies to be proposed and adopted. EPA believes that a year's
period of time is as expeditious as practical for the development of
the necessary control strategies given the complexity and difficulty of
the HGB area ozone problem. The HGB area has one of the most severe
ozone problems in the country. High ozone results from emissions both
from the large industrial sector and the large urban population. The
necessary controls to reach attainment are likely to be far reaching
and technology forcing. Texas has already initiated a stakeholder
process for strategy development so that they will be well positioned
when the modeling work is completed.
    An earlier date would mean the TCEQ would have to rely on a less
reliable 2000 modeling episode that would yield

more uncertainty to the modeling analysis, and suspend work on the new
modeling episodes. At best, a June 2009 date may have included initial
work with the 2005 and 2006 episodes in addition to the 2000 episode,
but would not have incorporated much of the data that was collected
during TexAQS II, and thus, would have more uncertainties and would be
less representative. A deadline for submission of the attainment
demonstration that is earlier than April 2010 would inhibit the
development of effective attainment strategies based upon new modeling
of ozone episodes that occurred in 2005 and 2006, the more recent 2006
emissions inventory, and incorporation of findings from TCEQ's most
recent field study of ozone formation, TexAQS II. Relying on the 2000
episode likely would result in the need to subsequently revise the SIP,
and would delay the development of effective and defensible control
strategies. Overall, it is EPA's judgment that the longer submittal
date will give TCEQ the necessary time to develop the modeling and
control strategies using the 2005 and 2006 episodes with the TexAQS II
field study data resulting in a more representative and accurate
attainment demonstration.
    In addition to modeling, TCEQ must also analyze emissions data to
develop ozone control strategies. To do so, TCEQ must incorporate the
findings from TexAQS II into its SIP planning, and must also rely on
the 2006 NOX and VOC emissions inventory, which was not
expected to be complete until early 2008 and would therefore not allow
for some early aspects of control strategy development until 2008. It
is important to use the 2006 inventory since it will provide the most
accurate VOC emissions data, in part as a result of monitoring and
testing requirements established in the HRVOC rules for flares, vents
and cooling towers. The 2006 point source inventory represents years of
efforts to improve emissions data, including more accurate speciation
and reporting of VOC emissions.
    In summary, the April 15, 2010 is appropriate as the submission
date due to: (1) The complexity in developing and implementing
effective emission reductions for the area; and (2) the opportunity for
a more robust attainment demonstration plan that relies on better data
and modeling. Developing and implementing effective emission reductions
for the area is complex due to its: (1) Complex coastal meteorology;
(2) large urban population; (3) large industrial area; and (4) the
current underestimation issues of industrial emissions. With this
submission, more recent data and modeling episodes may be used to
identify control strategies and demonstrate attainment of the standard.
In our December 31, 2007, proposal, we stated that the new attainment
demonstration should be based on the best information available (72 FR
74252, 74254). A SIP revision submission date of April 15, 2010, allows
for the best information to be used to produce an attainment
demonstration that is representative, robust and accurate. This date is
most likely to ensure that the 8-hour ozone standard will be attained
as expeditiously as practicable but no later than June 15, 2019.

III. What Comments Did EPA Receive on the December 31, 2007, Proposal
and How Has EPA Responded to Them?

    We received 35 comments on our December 31, 2007 proposal from
citizens, public interest groups, business groups, elected officials
and governmental organizations. The comments we received on our
proposal can be found on the internet in the electronic docket for this
action. To access the comments, please go to http://www.regulations.gov
and search for Docket No. EPA-R06-OAR-2007-0554, or contact the person
listed in the FOR FURTHER INFORMATION CONTACT paragraph above. The
discussion below addresses the comments we received on our proposed
action. The discussion addresses comments received on (1)
reclassification of the area to severe, (2) the date for a revised SIP
submittal, and (3) relief of CAA attainment demonstration and related
requirements.

A. Reclassification of the Area to Severe

    Comment: Comments were received that EPA should not reclassify the
area to severe. Comments were submitted that (1) EPA is limited by
language in CAA section 181(b)(3) that EPA ``* * * shall grant the
request of any State to reclassify a nonattainment area in that State
in accordance with table 1 of subsection (a) to a higher
classification'' (emphasis added); (2) table 1 had been superseded by
the 8-hour ozone standard table at 40 CFR 51.903; and (3) the
appropriate 8-hour ozone design value range for table 1 is 0.107-0.199
parts per million (ppm), which would make the area's classification
``serious''. Comments were also submitted that reclassification to
severe, which is two levels higher than moderate, conflicts with other
CAA provisions for ozone nonattainment areas (CAA Title I, Part D,
Subpart 2), and EPA's action on the State's reclassification request
must be reasonable.
    Response: We reiterate our position that the plain language of
section 181(b)(3) mandates that we approve the request to reclassify
the area to severe, as requested by the Governor of Texas, and that we
have no discretion to deny the request. Section 181(b)(3) provides in
relevant part that ``[t]he Adminstrator shall grant the request of any
State to reclassify a nonattainment area in that State in accordance
with table 1 of subsection (a) of this section to a higher
classification.'' Several commenters agreed with EPA's position on this
matter as well as the position that the State could select the higher
classification best suited to its needs. EPA agrees with these
commenters.
    One commenter cited to our Phase 1 final rule to implement the 8-
hour ozone national ambient air quality standard (NAAQS) response to
comments section for EPA's rationale for voluntary reclassifications
(69 FR 23951, 23962). We agree with this commenter. In the response to
comments on that rule, we stated that voluntary reclassification is the
mechanism defined in the CAA for states to obtain additional time for
attainment when necessary. In the Phase 1 rule responses to comments,
we stated:

    A State can receive more time to attain by voluntarily
submitting a request to EPA for a higher classification--including
the classification they had under the 1-hour NAAQS. The CAA (Section
181 (b)(3)) directs EPA to grant a State's request, and to publish
notice of the request and EPA's approval.

This is precisely the situation in HGB. It was designated severe under
the 1-hour standard and under the 8-hour standard it was designated as
moderate. Texas is now asking for the area to be reclassified to severe
under the 8-hour standard. We further stated that we recognized that
voluntary reclassification is a legitimate option under the CAA, and
may be an attractive option if the State is unable to develop a plan
that demonstrates that an area will attain within the time period for
its assigned classification.
    Table 1 of CAA section 181(a) (for the 1-hour ozone standard) and
table 1 of 40 CFR 51.903 (for the 8-hour ozone standard) list
classifications for nonattainment designations, the ozone design values
used for initial designations, and the maximum period for attainment of
the standard. Table 1 from 40 CFR 51.903 is reprinted below. Table 1
refers to classifications ranging from marginal to extreme. For the
reasons set forth below, in acting on a request for voluntary
reclassification, we are not constrained by the 8-hour design values
for initial classifications

set forth in table 1. Therefore the request by Texas to reclassify the
area from moderate to severe is in accordance with table 1.

    Table 1--Classification for 8-hour Ozone NAAQS for Areas Subject to Sec.   51.902(a) (From 40 CFR 51.903)
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                                                                                Maximum period
                                                                                for attainment
                                                                                dates in state
                                                                                plans  (years
                 Area class                                                   8-hour design     after  effective
                                                                            value (ppm ozone)       date of
                                                                                nonattainment
                                                                                designation for 8-
                                                                                hour NAAQS)
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Marginal...................................  From up to \1\...............              0.085                  3
                                                                                0.092
Moderate...................................  From up to \1\...............              0.092                  6
                                                                                0.107
Serious....................................  From up to \1\...............              0.107                  9
                                                                                0.120
Severe-15..................................  From up to \1\...............              0.120                 15
                                                                                0.127
Severe-17..................................  From up to \1\...............              0.127                 17
                                                                                0.187
Extreme....................................  Equal to or above............              0.187                20
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\1\ But not including.

    Some commenters contended that a severe classification is not
justified by the HGB area's air quality design value as interpreted by
table 1, and thus the request is not in accordance with table 1 and EPA
is not mandated to grant the request. This contention misreads section
181(b)(3).
    The plain meaning of CAA section 181(b)(3) is clear, and, in
addition, if one compares it with the other provisions of section
181(b) of the CAA it supports our position that Congress meant there to
be no discretion on the part of EPA in approving a voluntary
reclassification, and the State can request any higher reclassification
it deems appropriate. The authority to seek a reclassification beyond
the next highest classification is evident when one contrasts the
statutory language governing voluntary reclassification in section
181(b)(3) with statutory language governing reclassification upon
failure to attain in the previous paragraph of the CAA. In section
181(b)(2), Congress specified that:

    Except for any Severe or Extreme area, any area that the
Administrator finds has not attained the standard by [the attainment
date] shall be reclassified by operation of law in accordance with
the table 1 of subsection (a) of this section to the higher of--
    (i) The next higher classification for the area, or
    (ii) The classification applicable to the area's design value at
the time of the [reclassification] notice * * *

    The specific direction in section 181(b)(2) that, upon failure to
attain, a nonattainment area shall be reclassified to the higher of
``the next higher classification'' or ``the classification applicable
to the area's design value'' contrasts with the language of section
181(b)(3), which states that a voluntary reclassification may be to ``a
higher classification.'' In section 181(b)(3), there is no reference to
the area's design value or limitation that the reclassification must be
equivalent to the area's design value. Under section 181(b)(3),
reference to ``in accordance with table 1'' means in accordance with
the area classification categories of marginal to extreme, not air
quality design values used for initial classifications. Section
181(b)(3), unlike section 181(b)(2), does not direct comparison to the
area's air quality design value. As in section 181(b)(2), Congress also
referred explicitly to design values in section 181(a), providing that
an ozone nonattainment area's initial classification should be ``based
on the design value of the area.'' No such limitation is placed on a
voluntary reclassification under section 181(b)(3). As one commenter
pointed out, reclassification from ``moderate'' to ``severe'' is in
accordance with table 1, since it defines the range of what is a
``higher classification'' and the associated attainment dates. If
Congress had meant to restrict or specifically direct what
classification a State could choose, it would have written similar
limiting language into section 181(b)(3), and would have included, as
it did in section 181(b)(2), a specific time for determining the design
value of the area. (Without such a timeframe being defined, it is not
possible to determine the area's design value). While both sections
181(b)(2) and 181(b)(3) provide that reclassification shall be ``in
accordance with table 1 of subsection (a)'', section 181(b)(3) does not
direct that the design value of the area being reclassified fall within
the range of design values corresponding to a particular
classification. Even under section 181(b)(2), reclassification is not
required to be equivalent to the air quality of the area at the time of
classification. Under section 181(b)(2), an area being reclassified is
not required to match its design value to the design value for the
classification category in table 1, but rather to the ``higher'' of the
next classification or its design value at the time of
reclassification. It would be illogical for Congress, as it did, to
require areas to be reclassified to classifications higher than their
design value under the mandatory provisions of section 181(b)(2), while
prohibiting such reclassification under the voluntary provision of
181(b)(3). Nor is there any basis, as a commenter suggests, to construe
the reference in section 181(b)(3) to reclassification to ``a higher
classification'' to be limited to ``the next higher classification'' or
a single classification level. Therefore EPA's approval of the
voluntary reclassification from moderate to severe is reasonable and in
keeping with the statutory provisions, which provide EPA no discretion
to deny a request for voluntary reclassification to a higher
classification.
    A commenter's argument that, in order to be ``in accordance with
table 1,'' the area's design value at the time of reclassification must
match the design value for initial classification in

table 1, contradicts the commenters' own position that the area should
be reclassified to serious, since, according to the commenter, the more
recent design values do not match the severe area concentrations. The
area's most recent design values are 103 parts per billion (ppb) in
both 2005 and 2006, and 96 ppb in 2007--these levels match the design
value for initial classification for moderate areas. Of course, as
pointed out above, section 181(b)(3) makes no reference to design
values nor any timeframe for determining them--thus there is confusion
in the commenters' discussions about the appropriate dates for
determining the area's design value, with one commenter arguing that
``the HGB area's design value is most consistent with 0.107-0.119
ppm,'' the serious range, EDF Comments at 8, while another notes that
the ``2005 eight-hour design value was 103 ppb''. GHASP Comments, at 2.
Thus the commenters' argument that a voluntary reclassification can
only be to a classification that matches the area's design value, is
further undermined by the indeterminacy of the relevant design value
with regard to section 181(b)(3). To the extent that the most recent
design values match the initial classification levels for moderate
areas, this also conflicts with the commenters' assertions that the
area should be reclassified to serious and not severe.
    Other provisions in the CAA do not conflict with our action to
reclassify the area to severe. Sections 181(a)(4) and (5) were cited in
a comment. Neither section has anything to do with the voluntary
reclassification provision in section 181(b)(3). CAA section 181(a)(4)
gives the Administrator discretion, within 90 days of an original
classification, to ``adjust'' that initial classification upwards or
downward if an area's design value places it within 5 percent of the
next classification. It has no bearing on the circumstances for
granting a request for voluntary reclassification as set forth in
section 181(b)(3). For more information, please see our September 22,
2004, action reclassifying certain 8-hour ozone nonattainment areas
from moderate to marginal under section 181(a)(4) (69 FR 56697). CAA
section 181(a)(5) simply sets forth the criteria for granting
attainment date extensions if an area is not being reclassified, and it
does not affect or shed light on the criteria for granting voluntary
reclassifications. It provides for a maximum of two 1-year extensions
of the attainment date for the 1-hour ozone NAAQS. The attainment date
can be extended--without reclassifying the area--if the State has
complied with all requirements and commitments pertaining to the area
in the applicable implementation plan and there was no more than 1
exceedance of the 1-hour ozone NAAQS preceding the extension year. CAA
section 181(a)(4) contains very specific language regarding how to make
immediate, minor adjustments to initial classifications, and section
181(a)(5) contains specific language on how to extend an attainment
date when an area is not being reclassified. Congress addressed
separately and equally specifically voluntary reclassifications in
section 181(b)(3). Thus EPA interprets the voluntary reclassification
differently from these other provisions. Based on the language in CAA
section 181(b)(3), our action is consistent with the CAA, and it is
reasonable. Section 181(a)(4) applies only in limited circumstances to
initial designations, and is not applicable here. Section 181(a)(5)
applies to circumstances for extending attainment dates without
changing the classification of the area, and is not applicable here.
Neither provision conflicts with or limits the scope of section
181(b)(3).
    Comment: Several comments were received stating that HGB had never
attained any standard and that further delay in attaining the standard
by granting the reclassification is not warranted. Comments were
received that the goal of the SIP is attainment of the 8-hour ozone
standard, not simply a reduction in ozone precursors. Comments
contended that TCEQ has repeatedly failed to reach this goal and to
implement adequate control measures, and that sanctions should be
imposed and that it should not be rewarded with extra time. One
commenter cited an April 2007 letter from the Mayor of Houston and
Harris County Judge Emmett, stating that they opposed the idea of a
double ``bump-up'' and that the resulting delay in attainment was
unacceptable.
    Response: As stated above, voluntary reclassification is a
legitimate option under the CAA, and it is an appropriate option if the
State is unable to develop a plan that demonstrates that an area will
attain within the time period for its assigned classification. Texas'
8-hour submittal demonstrated that the State could not model attainment
by its moderate attainment date. Moreover, under the Act, EPA does not
have discretion to deny a request for voluntary reclassification.
    With respect to the April letter from the Mayor of Houston and
Judge Emmett, subsequent comments from them on EPA's proposed
reclassification were more supportive of EPA's proposed action than the
April 2007 letter indicated. These comments stated that ``whether the
EPA determines that a single or double bump up in classification for
the HGB is appropriate, our concern remains the timely attainment of
the NAAQS. The control measures included in the SIP must ensure that
the NAAQS is attained as expeditiously as practicable as required by
the Clean Air Act.'' The comments noted that ``[w]hile the City and
County are concerned that the SIP submittal date of 2010 could delay
achieving attainment, the TCEQ believes that this extended period will
allow TCEQ to develop the most effective SIP possible. This up front
investment of time should result in a SIP that will not have to be
significantly changed or corrected to include revised data. Developing
a quality SIP should avoid delays in implementation.'' EPA notes that,
under the Clean Air Act, when an area is reclassified, it must still
attain the standard as expeditiously as practicable. Thus the concerns
expressed in the comment should be alleviated by an appropriate
attainment demonstration.
    As set forth in other responses to comments, EPA does not believe
it appropriate to impose sanctions for attainment demonstration-related
moderate area SIP requirements, where the area has been unable to
demonstrate attainment by the moderate area deadline, is being
reclassified to severe, and is in the process of developing a severe
area attainment demonstration and related requirements. As set forth in
the proposal, Texas has submitted other non-attainment demonstration-
related moderate area requirements, and as a former 1-hour severe ozone
nonattainment area, is already implementing other severe area
requirements. Once reclassified the area is no longer required to
submit an attainment demonstration for the prior classification, so
sanctions for failure to submit such a SIP would be inappropriate. The
area has demonstrated that it could not develop a reasonable attainment
demonstration for a moderate area deadline so sanctions could never be
cured in the area, if applied.
    Comment: A comment was received that if we grant Texas'
reclassification request of the area to severe that the approval should
be conditioned upon adoption by Texas of further control measures
within 12 months of approval of the reclassification.
    Response: CAA section 181(b)(3) directs EPA to grant a State's
request to reclassify a nonattainment area in that State to a higher
classification. Section

181(b)(3) does not authorize EPA to attach conditions (such as
additional control measures) upon our granting of such a request, but
there are consequences to being reclassified. Reclassification to a
severe designation will result in the HGB ozone nonattainment area
being subjected to severe 8-hour ozone nonattainment area requirements,
including New Source Review (NSR) and Title V permit requirements, in
addition to applicable 1-hour requirements. For example, Texas will
have to meet the more stringent reasonable further progress (RFP)
reductions in VOC and NOX emissions required by a severe
classification (40 CFR 51.910).
    In addition, TCEQ has already initiated stakeholder meetings
addressing additional control measures. CAA section 172(c)(1) requires
SIPs for all nonattainment areas to provide for the implementation of
all reasonably available control measures (RACM) as expeditiously as
practicable. When we receive the HGB attainment demonstration for the
1997 ozone standard, we will review it to determine whether it provides
for all RACM necessary to attain the standard as expeditiously as
practicable and provides for implementation of those measures as
expeditiously as practicable. For more information on RACM, please see
our ``Guidance on Reasonably Available Control Measures (RACM)
Requirement and Attainment Demonstration Submissions for Ozone
Nonattainment Areas,'' (Memorandum from John Seitz, Director, Office of
Air Quality Planning and Standards, November 30, 1999, available at
http://www.epa.gov/ttn/oarpg/t1/memoranda/revracm.pdf). With respect to
the commenter's suggestion that additional controls be adopted and
submitted within 12 months, please see Section II above, as well as
EPA's responses to comments on the timing of submission for the revised
SIPs that are due as a result of reclassification to severe.
    Comment: A comment was received that reclassification of the area
to severe subjects the action to review under Executive Order 12866
(Regulatory Planning and Review, 58 FR 51735, October 4, 1993) as a
significant regulatory action. The commenter also noted that protecting
children from environmental health risks is a priority concern, as
expressed in Executive Order 13045 (Protection of Children From
Environmental Health Risks and Safety Risks, 62 FR 19885, April 23,
1997).
    Response: We continue to believe that reclassification of the area
to severe is not a ``significant regulatory action'' under Executive
Order 12866, and therefore is not subject to Executive Order 12866.
Voluntary reclassifications to a higher classification under section
181(b)(3) of the CAA are based solely on requests by the State, and we
are required under the CAA to grant them. As we explained in response
to comments above, EPA's approval of the State's request for
reclassification is mandatory and is in accordance with the
requirements of section 181(b)(3) of the CAA. Contrary to commenter's
contention, the reclassification of HGB from moderate to severe is
consistent with the statutory provisions. With respect to the
commenter's concern regarding E.O. 13045, EPA interprets that provision
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the E.O. has the potential to influence the regulation. This action is
not subject to E.O. 13045 because it grants a voluntary
reclassification, and EPA's approval is mandatory. Moreover, regardless
of its classification, the HGB area remains subject to the obligation
to attain as expeditiously as practicable.

B. Date for a Revised SIP Submittal

    Comment: Comments were received opposing April 15, 2010, the date
requested by TCEQ, as the submission date for a SIP revision. One
commenter stated that: (1) There is no precedent for such a long
timeframe; (2) for the San Joaquin Valley area voluntary
reclassification, EPA allowed only 7 months to submit a new attainment
plan and 12 months to incorporate new extreme area SIP elements; (3)
EPA should treat these two voluntary ``bump-up'' requests similarly and
apply an equally short SIP submission date to the HGB area; and (4) EPA
should not reward delay by Texas in implementing all RACM and
completing an attainment demonstration with a protracted timeframe in
which to develop a new SIP.
    One commenter stated that: (1) A state is generally provided 12
months to modify and revise the applicable SIP if there was a failure
to meet an attainment date; (2) when EPA finds that the applicable
implementation plan for any area is substantially inadequate to attain
or maintain the relevant NAAQ standard, it has the authority to require
the state to revise the plan and submit a new plan no later than 18
months after notice to the state of the need for revision; (3) the
initial SIP submission deadline when drafting a plan for the first time
``from scratch'' is a maximum of three years; and (4) it seems
unreasonable to need 34 months to revise a SIP that was revised in May
2007. Another commenter stated that it was unacceptable that TCEQ would
be allowed to delay until April 2010 before it had to adopt further
control measures. Other commenters stated that the sooner we reach the
point when planning stops and action starts, the sooner we will all
enjoy the benefits of cleaner, healthier air.
    Response: In our proposal to this final rule, we identified a range
of dates and requested supporting information to consider in setting
the appropriate severe classification submittal date. Many of these
factors were discussed by the commenters who advocated a shorter
timeframe than requested by Texas. We considered each comment carefully
before setting a submission date. Since CAA section 181(b)(3) does not
establish a precise timeframe for submitting an attainment plan under a
voluntary reclassification request, we must review the record before us
and each particular set of circumstances to establish a deadline that
is consistent with and that will ensure that the 8-hour ozone standard
will be attained as expeditiously as practicable but no later than June
15, 2019. See section 182(i), which provides that when reclassifying
areas under section 181(b)(2), EPA may adjust applicable deadlines for
requirements other than attainment dates to the extent such adjustment
is necessary or appropriate to assure consistency among the required
submissions. EPA believes that, by analogy, it would be logical to
assume that EPA has this same authority in granting reclassifications
under section 181(b)(3). We requested in the proposal that commenters
state their choice of a submittal date and justify their selection.
After reviewing all the justifications before us, we have determined
the April 15, 2010, date is appropriate and reasonable based on the
totality of the information. As we set forth in Section II above, and
in our responses to comments, we believe that TCEQ and the other
commenters supporting an April 15, 2010, date presented compelling
support for this submission deadline.
    Historically, the Houston area has been very difficult to model due
to a combination of issues. The Houston area meteorology is very
complex and is impacted by both a land/sea breeze interaction and a bay
breeze function that make meteorological modeling of the area
difficult. Modeling of other meteorological phenomena such as frontal
passages/weak fronts, nocturnal jets, convergence zones, etc. are also
difficult to model and made even more difficult by the land/sea/bay
breeze

influences. TexAQS II data includes meteorological observations from
numerous surface sites, two towers, hundreds of balloons, five
aircraft, a research vessel and an offshore platform. These data will
help to characterize important meteorological phenomena affecting ozone
in the HGB area, including land/sea/bay breeze, nocturnal jets,
stagnation, frontal passages, dispersion and mixing of ozone
precursors, and transport.
    Photochemical modeling of the Houston Area is also complicated by
the significant difference between reported emissions from industrial
sources and emissions estimated from ambient concentrations. Previous
1-hour modeling included in a 2004 HGB 1-hour ozone SIP highlights the
benefit of using modeling episodes that had more data collected than
normal, such as in a field study. In the past, adjustments to reported
emissions have been necessary to resolve the discrepancy between the
emissions inventory and emissions estimated from ambient measurements.
The field study data from 2005 and 2006 will help identify and quantify
any continuing discrepancies between reported and actual emissions.
During 2006 intensive monitoring was conducted that included monitoring
from aircraft, intensive monitoring from a ship based platform,
additional ground monitoring, collection of hourly specific emission
inventory information for over 100 industrial facilities, and numerous
additional meteorological monitoring sites. TCEQ has chosen to include
episodes from 2006 that will benefit from the additional data and will
result in higher confidence in any emission inventory adjustments that
are done and also in the resulting photochemical modeling.
    In addition, a large amount of federal, state, and scientific
community resources have been enlisted to refine and analyze the data
collected for use in the new 2005 and 2006 modeling. Analyses from the
TexAQS II study only recently have become available in 2007 and 2008,
and are critical to guiding the TCEQ modeling development and
validating the results. Texas should be allowed time to incorporate
these results, since otherwise the modeling would likely need to be
redone to incorporate these findings. We expect the TexAQS II data will
contribute to better understanding of the adequacy of emissions
inventories in several key areas, including shipping, onroad mobile
sources, industrial VOCs and formaldehyde. It should also aid in the
representation of chemical pathways in the models, since it
investigated key parameters controlling the formation and destruction
of ozone in the HGB.
    Overall, it is EPA's judgment that the longer submittal date will
give TCEQ the necessary time to develop the modeling and control
strategies using the 2005 and 2006 episodes with the TexAQS II field
study data resulting in a more representative and accurate attainment
demonstration. It will take time to incorporate the field study data
collected in 2005 and 2006 into the meteorological and photochemical
modeling for the area. This includes processing of radar data
(available in mid-2008), compilation and review of 2006 emission
inventory data (mid-2008), inclusion of additional meteorological data
(2007-2008), inclusion of Continuous Emission Monitoring (CEM) data
from the HRVOC sources that have CEMs (mid-2008), analysis and
inclusion of data from ground, ship, and aircraft data collected (2007-
2009).
    With regard to the commenter's contention that the SIP was revised
in May 2007, it is important to note that the 2007 SIP revision did not
demonstrate attainment and that extensive additional work would be
required to do so and to adopt new requirements as appropriate.
    Even with an April 15, 2010, submission date, we expect the area to
continue to reduce VOC and NOX emissions through Federal,
State and local controls. Provisions for reasonable further progress
(RFP) reductions in these ozone precursor emissions is a requirement
for a severe area SIP (40 CFR 51.910). For the HGB area where 15% VOC
reductions have already been achieved, required severe area reductions
are an average of 3 percent per year of VOC and/or NOX for:
(1) The 6-year period following the baseline emissions inventory year
(2002); and (2) all remaining 3-year periods after the first 6-year
period out to the area's attainment date (40 CFR 51.910(a)(1)(B)).
These reductions will lead to lower ozone levels. As noted above, TCEQ
has already conducted stakeholder meetings on additional control
measures. TCEQ is also implementing the Texas Emission Reduction
Program (TERP) and the AirCheckTexas program to reduce emissions. TERP
provides funding for reducing NOX emissions from diesel
engines. AirCheckTexas provides funding for replacing older, higher
polluting automobiles with newer less polluting ones.
    With respect to the comments supporting submission dates earlier
than April 2010, see the responses to comments below. With respect to
the comment concerning the 7-month submission deadline for the San
Joaquin Valley voluntary reclassification, EPA notes that contrary to
commenter's contention, EPA's actions in setting the submittal date and
the timeframes in the voluntary reclassification of San Joaquin are
consistent with the deadline set here. Although in its April, 2004
notice EPA set a submittal date of November 15, 2004 (and some months
later for Title V and NSR requirements), EPA noted that additional time
was not warranted ``because the District has been working on the
extreme area plan since 2002, and has indicated that they can meet the
November 15, 2004 deadline.'' 69 FR 20550, 20551. (April 16, 2004).
Thus the time period for work on the plan in San Joaquin is comparable
to that being afforded the State here, and, as in San Joaquin, is
consistent with what the State has requested. Moreover, as set forth in
detail elsewhere in this notice, under the circumstances presented
here, the complex challenges confronting the HGB area justify the
length of time provided for submittal of the plan.
    Comment: Comments were received supporting dates earlier than April
15, 2010, as the submission date for a SIP revision. One comment stated
that the submission date for a revised SIP should be as expeditiously
as practicable but no later than December 15, 2008, which would be 18
months from the reclassification request. Other comments supported a
June 2009 date by which the SIP revision should be submitted.
Commenters stated that a June 15, 2009, date allows Texas much more
time than normal, but less than requested. One commenter stated that a
June 2009 date would ensure that sufficient work can be completed on
the plan while respecting the need for urgent action.
    Response: As stated above, we believe that TCEQ and the other
commenters who supported the April 15, 2010, date have presented
compelling arguments and information, and that this date is as soon as
practicable. If December, 2008 were set as the deadline, TCEQ would
have to rely on a 2000 modeling episode instead of newer, more
comprehensive and representative modeling episodes. Due to the
limitations of the 2000 episode (since the 2000 episode large
reductions in NOX and HRVOCs with the Cap and Trade program
have occurred which add uncertainity to future year modeling
projections and the 2000 episode had some periods of unrepresentative
meteorological conditions), reliance on it would likely result in less
accurate and representative projections of future

design values (especially when weighed against using the more recent
field study data collected in 2005 and 2006 and the modeling of more
recent episodes). See the Comments of the TCEQ, pages 1-2. Thus, TCEQ
is modeling a number of episodes from 2005 and 2006, in order to
develop an adequate basis for developing an attainment strategy. This
allows for the episodes to include the effects of earlier reductions of
NOX and HRVOCs in the base inventories and also base the
episodes on periods with more intensive data collection to further
lessen the uncertainties in modeling projections. The episodes from
2005 and 2006 are more representative of the typical conditions that
lead to high ozone levels. Due to complicated source-receptor
relationships and meteorology in the HGB, this modeling requires an
intensive effort, involving six-twelve months more time than when
modeling more typical urban areas. These complex relationships are in
large part due to the complicated meteorological characteristics of the
HGB area, including land/bay/sea breeze and their interaction with
other meteorological features that impact the dispersion and mixing of
ozone precursors; and also the complex mixture of industrial emissions
of VOCs (including HRVOCs) and NOX that make modeling the
HGB area much different than most other areas of the country. The
additional field study data and detailed emission inventory data
collected during the 2005 and 2006 period will improve the accuracy of
the base case modeling (meteorology, emissions, and chemistry) and help
to yield more representative SIP modeling demonstration.
    A large amount of federal, state, and scientific community
resources have been enlisted to refine and analyze the data collected
for use in the new 2005 and 2006 modeling. Analyses from the TexAQS II
study only recently have become available in 2007 and 2008, and are
critical to guiding the TCEQ modeling development and validating the
results. Texas should be allowed time to incorporate these results,
otherwise the modeling would then likely need to be redone to
incorporate these findings. We expect the TexAQS II data will
contribute to better understanding of the adequacy of emissions
inventories in several key areas, including shipping, onroad mobile
sources, industrial VOCs and formaldehyde. It should also aid in the
representation of chemical pathways in the models, since key parameters
controlling the formation and destruction of ozone in the HGB area were
investigated. TexAQS II data includes meteorological observations from
numerous surface sites, two towers, hundreds of balloons, five
aircraft, a research vessel and an offshore platform. These data will
help to characterize important meteorological phenomena affecting ozone
in the HGB area, including land/sea/bay breeze, nocturnal jets,
stagnation, frontal passages, dispersion and mixing of ozone
precursors, and transport. In addition, Texas is engaged in a number of
activities to improve the model's ability to replicate the complex
interactions leading to high ozone, including model enhancements to
incorporate temperature variations, better land use and land cover
data, improved information on biogenic emissions, better data for
emissions and monitored concentrations, and advanced modeling
techniques. See TCEQ Comments, page 3. TCEQ is modeling more than 50
episode days while making improvements in the modeling process and
incorporating TexAQS II results. TCEQ estimates it will take until
March 2009 to complete the modeling work and associated quality
assurance and peer review to support a proposed modeling and attainment
demonstration.
    A December 2008 date would mean the TCEQ would have to rely on the
less reliable 2000 modeling episode, and suspend work on the new
modeling episodes. At best a June 2009 date may have included initial
work with the 2005 and 2006 episodes in addition to the 2000 episode,
but would not have incorporated much of the data that was collected
during TexAQS II, and thus would have more uncertainties and would be
less representative. A deadline for submission of the attainment
demonstration that is earlier than April 2010 would inhibit the
development of effective attainment strategies based upon new modeling
of ozone episodes that occurred in 2005 and 2006, the more recent 2006
emissions inventory, and incorporation of findings from TCEQ's most
recent field study of ozone formation, TexAQS II. Relying on the 2000
episode would likely result in the need to subsequently revise the SIP,
and would delay the development of effective control strategies.
    In addition to modeling, TCEQ must also analyze emissions data to
develop ozone control strategies. To do so, TCEQ must incorporate the
findings from TexAQS II into its SIP planning, and must also rely on
the 2006 NOX and VOC emissions inventory, which was not
complete until the middle of 2008, and would therefore not allow for
some early aspects of control strategy development until late 2008. It
is important to use the 2006 inventory since it will provide the most
accurate VOC emissions data, as a result of monitoring and testing
requirements established in the HRVOC rules for flares, vents and
cooling towers. The 2006 point source inventory represents years of
efforts to improve emissions data, including more accurate speciation
and reporting of VOC emissions. For details of these improvements, see
TCEQ Comments at 5.
    Due to the extensive controls already required for major sources in
the HGB area, TCEQ may need to consider more stringent strategies that
will require time for conducting more inventory and survey work on area
sources, as well as for researching control technologies on sources
that have not historically been regulated for ozone, or that are
smaller than what has previously been regulated. More evaluation and
stakeholder outreach may also be needed for control strategies that
impact small businesses and sources not historically regulated for
ozone. Issues being studied that could have an affect on control
strategies include the role of ozone levels aloft in model performance
and control strategy assessment, differences between measured on-road
mobile source CO-to-NOX ratios and those predicted by the
national mobile source emissions model, MOBILE6, and indications that a
great degree of variability exists in VOC emissions, with some sources
emitting large quantities within a short period of time and also the
general underestimation for many industrial sources of VOCs (recent
field study information indicates VOCs may still be under-reported by a
factor of 2 or more). As one commenter has pointed out, in the past
when results and insights from field studies were not included in the
development of attainment plans, the plans subsequently had to be
revised. Moreover, if an earlier deadline is imposed, it would result
in the loss of the full complement of modeled episode days, and
diminish confidence that the control strategies would work under a
range of meteorological conditions. Since different control strategies
were being introduced in 2005 and 2006, eliminating the 2006 episodes
would result in the loss of information about the effectiveness of
these controls. A deadline prior to April, 2010 also would not allow
sufficient time for rule development after identification of control
strategies. The rulemaking process under the Texas Administrative
Procedure Act, combined with TCEQ rulemaking practice, typically takes

about one year. Texas has also commented that sensitivity analyses to
assess the benefits of selected controls also are not currently
available.
    In developing control measures, an extensive public participation
process is needed, since emissions reductions will be required from all
source categories. A shorter timeline would not allow sufficient input
by community stakeholders and outside scientists, on such issues as
data, modeling, and other analyses, as well as emissions factors. This
input is important for the development of effective control strategies
and their implementation. Thus, EPA finds that the April 2010 deadline
is necessary to provide sufficient time to allow adequate modeling
episodes and control strategies based on best available data.
    Comment: A comment was received that if EPA is convinced that it
will legitimately take until 2010 to complete the technical work to
support the required demonstration of attainment, EPA should require
TCEQ to work with local stakeholders to adopt available control
measures on an expedited schedule.
    Response: As noted above: (1) TCEQ has already initiated
stakeholder meetings on additional control measures, and is
implementing the Texas Emission Reduction Program and the AirCheckTexas
program to reduce emissions; and (2) control measures will be adopted
as expeditiously as practicable, and will be submitted with the
attainment demonstration in 2010. Given the time necessary for updating
the emissions inventory, episode modeling, and control strategy
development adoption of significant numbers of new control measures
cannot be expected earlier than April 2010.
    Comment: We invited comments on a range of dates from December 15,
2008 to April 15, 2010 for a revised SIP submittal. Comments were
received supporting April 15, 2010 as the submission date for a SIP
revision. One commenter (TCEQ) recommended this date due to: (1) The
extraordinarily complex nature of ozone formation in the HGB area; (2)
the need to successfully model a large number of ozone days; (3) the
new scientific information beginning to emerge from the Texas Air
Quality Study II; (4) complicated issues associated with developing and
implementing emission reduction measures; and (5) the need for
extensive stakeholder involvement. TCEQ further stated that: (1)
Requiring the state to submit an attainment demonstration any time
before April 2010 does not change the attainment date nor does it
advance the protection of public health; (2) an earlier submission date
is counterproductive to protecting public health; (3) a December 2008
deadline would mean that all initial technical work on the HGB SIP
would be discontinued; and (4) the SIP revision would contain little
more than previous modeling and a control strategy package that relies
on fleet turnover from federal rules. Texas also provided detailed
justification for the April 15, 2010 submission date addressing: (1)
Modeling, (2) control strategy development, (3) the stakeholder
process, and (4) the reasonable further progress SIP.
    Another commenter stated that: (1) The timeline requested by Texas
is necessary in order to integrate recent field study data, new
episodes, and state-of-the-art modeling; (2) imposing artificial
deadlines would mean that key components would be omitted, which would
all but guarantee a flawed plan; and (3) the result (of a flawed plan)
would be a costly and wasteful regulatory re-work, which could delay,
rather than accelerate attainment.
    Response: We agree with these commenters that April 15, 2010 is
appropriate as the submission date for a SIP revision due to: (1) The
complexity in developing and implementing effective emission reductions
for the area; and (2) the opportunity for a more robust attainment
demonstration plan that relies on better data and modeling. Developing
and implementing effective emission reductions for the area is complex
due to its: (1) Complex coastal meteorology; (2) large urban
population; and (3) large industrial area (4) the current
underestimation issues of industrial emissions. With a SIP submission
date of April 15, 2010, more recent data and modeling episodes may be
used to identify control strategies and demonstrate attainment of the
standard. In our December 31, 2007, proposal, we stated that the new
attainment demonstration should be based on the best information
available (72 FR 74252, 74254). A SIP revision submission date of April
15, 2010, allows for the best information to be used. See also section
II above, and responses to comments above.

C. Relief of CAA Attainment Demonstration and Related Requirements

    Comment: Several commenters stated that reclassification should not
be a means to avoid meeting fundamental CAA requirements, and that
Texas is therefore still required to complete and submit, as components
of its May 2007 SIP, an adequate RACM analysis, an adequate attainment
demonstration, supporting photochemical modeling, and contingency
measures. Comments stated that ``Congress intended the reclassification
process to be used as a last resort, [to be undertaken] after all
[RACM] have been implemented and all best efforts undertaken to reduce
emissions.''
    Response: As we stated in the proposal, 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. In June 2007, Texas submitted an 8-hour SIP to EPA that
included the requirements of (1) a moderate area reasonable further
progress demonstration (40 CFR 51.910), which includes contingency
control measures if the area fails to meet reasonable further progress
(CAA section 172(c)(9)); (2) a reasonably available control technology
(RACT) demonstration (40 CFR 51.912); and (3) a 2002 emissions
inventory (40 CFR 51.915). Other moderate area SIP requirements are
currently being implemented. These include NSR rules (40 CFR part 165)
and a vehicle inspection and maintenance program (40 CFR
51.905(a)(1)(i)). Also, as stated above, reclassification is not
without consequences for the area. Reclassification to a severe
designation will result in the HGB ozone nonattainment area being
subjected to severe 8-hour ozone nonattainment area requirements,
including New Source Review (NSR) and Title V permit requirements, in
addition to applicable 1-hour requirements. For example, Texas will
have to meet the more stringent reasonable further progress (RFP)
reductions in VOC and NOX emissions required by a severe
classification (40 CFR 51.910). For other serious and severe area
requirements, see section 182(c) and (d).
    EPA disagrees with the commenters to the extent they believe that a
full attainment demonstration plan including modeling, attainment
contingency measures and RACM needs to be submitted and approved by the
moderate area deadline. Once an area is reclassified it retains the SIP
due date for certain SIP elements that applied for the area's initial
classification. However it can receive a new date for the attainment
demonstration and related elements, in addition to the SIP elements
required under its new (higher) classification. It is EPA's belief that
the CAA provides that, upon

reclassification, relief can be granted from the submittal deadline for
the requirements of the lower classification related to the attainment
demonstration. As a reclassified area the area is no longer obligated
to demonstrate attainment by the date previously required for the prior
classification. The area must then provide an attainment demonstration
for the new classification, but must still demonstrate attainment as
expeditiously as practicable. Such deadlines are determined on a case-
by-case basis for each area and proposed and finalized through
rulemaking. As discussed previously, we believe it is appropriate in
this case to allow time to develop an attainment demonstration based on
more complete information available through additional episode days and
the TexAQS II study. This approach is balanced by the fact that the CAA
provides for additional more stringent requirements to be placed upon a
nonattainment area when it is given a higher classification. In
addition, we expect that the additional time will provide for a more
robust attainment demonstration. In the meantime, the State has made
submittals to meet and/or is implementing the moderate area
requirements not related to an attainment demonstration. When a
nonattainment area is reclassified, the CAA attainment demonstration
requirements of the new classification supersede those of the previous
classification. In other words, once a nonattainment area has been
reclassified and as a result has a new attainment deadline, the
deadline applicable to the attainment demonstration under the previous
classification no longer has any logical, practical or legal
significance. The State has already demonstrated its inability to meet
the moderate area deadline for attainment, and is preparing its new
demonstration under the severe classification. Therefore, EPA is not
evaluating the sufficiency of the attainment demonstration or RACM
submissions made pursuant to the area's moderate classification, or
imposing sanctions for insufficiency. EPA's conclusion not to require a
moderate area attainment demonstration is logical, since the State is
unable to demonstrate attainment by the moderate area attainment date,
and the area is being reclassified. It is also consistent with its
action in the voluntary reclassification of San Joaquin Valley, 69 FR
20550 (April 16, 2004).
    As noted in EPA's proposal, Texas submitted contingency measures to
be triggered if the area fails to meet reasonable further (RFP)
progress under the moderate area requirements. 72 FR 74253. A commenter
contends that the State's failure to include an attainment
demonstration under its moderate area classification makes an attempt
to include contingency measures impossible, arguing that such
contingency measures can only be determined if they are surplus to the
measures needed for attainment. For contingency measures to meet RFP,
however, EPA will be able to evaluate and, if appropriate, approve
these measures in advance of an attainment demonstration. If, when the
attainment demonstration is submitted, it is determined that additional
contingency measures are required to meet severe area RFP or
attainment, EPA will require such measures. A commenter cited to the
February 12, 2007 Thomas Diggs (Chief, Air Planning Section, EPA Region
6) letter to Joyce Spencer (TCEQ), which stated: ``EPA cannot approve
any contingency measures unless and until the state makes an adequate
demonstration that they are surplus to the measures needed for
attainment.'' In response, EPA is clarifying Mr. Diggs statement to
make explicit that it is limited it to the context of contingency
measures for failure to attain. Contingency measures for failure to
meet RFP are only those surplus to the RFP demonstration, and, as noted
above, unlike contingency measures for attainment, EPA can evaluate
such contingency measures in advance of the attainment demonstration.
    One commenter contended that in the General Preamble EPA stated
that when an area is reclassified it must submit and implement RACM
consistent with the moderate area schedule. 57 FR 13537.

    ''[I]f an area that fails to submit a timely moderate area SIP
is reclassified, this does not obviate the requirement that the area
submit and implement RACM consistent with the moderate area
schedule. Accordingly, the area could be subject to sanctions for
its delay in submitting the RACM SIP requirement.''

    EPA notes that the passage quoted above by the commenter is
contained in the section of the General Preamble addressing the PM-10
standard, and does not relate to the ozone standard. In addition, this
statement is at odds with statements elsewhere in the General Preamble
about RACM being a component of an area's attainment demonstration
under section 172(c)(1) (57 FR 13560), and is superseded by a much more
extensive discussion of PM-10 RACM and Best Available Control Measures
(BACM) in the Addendum to General Preamble for State Implementation
Plans for Serious PM-10 Nonattainment Areas. 59 FR 41998, 42008-42011,
(August 16, 1994). The Addendum makes clear that RACM, as distinguished
from BACM, is to be analyzed ``according to what is reasonable in light
of the overall attainment needs of the area.'' 59 FR 42011. The
Addendum notes that the ``pronounced difference in timing for the
serious area submittals * * * is to be contrasted with the timing for
submittal of similar provisions for moderate areas. Under section
189(a)(2), both the RACM plans and the attainment demonstration for
moderate PM-10 areas must as a general matter be submitted at the same
time.'' The Addendum explains that the fact that BACM, unlike RACM,
requires adoption and implementation before the attainment
demonstration, shows that Congress intended BACM to be based on the
feasibility of implementation rather than, as for RACM, the attainment
needs of the area. 59 FR 42012. Thus it is clear that, for RACM for
ozone, for the same reason that the deadline for an attainment
demonstration should be extended when an area is reclassified, the
deadline for RACM should also be extended. This is buttressed by EPA's
interpretation, upheld by the United States Court of Appeals for the
Fifth Circuit (Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir.
2002) and by the U.S. Court of Appeals for the D.C. Circuit (Sierra
Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002), that the statute
requires only implementation of RACM measures that would advance
attainment. Thus RACM can only be determined in conjunction with an
attainment demonstration. A commenter's contention that ``areas that
are not attaining the NAAQS must implement all technologically and
economically feasible control measures'' is at odds with the statute as
interpreted by EPA and the courts. Moreover, the commenter's reliance
for support on Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990), is
misplaced. Delaney was decided before the 1990 Amendments to the Clean
Air Act were enacted and the General Preamble was issued, and it does
not reflect the current statute and guidance. (See Ober v. EPA, 84 F.
3d 304 (9th Cir. 1996), noting that Delaney was decided before the 1990
Amendments and before EPA changed its guidance with respect to
transportation control measures and RACM.) Delaney focused on a
specific set of circumstances, applying requirements for attainment
under a previous version of the statute and guidance, and it did not
require attainment as expeditiously as

practicable with reasonably available control measures but rather
attainment as soon as possible with all possible measures. It is not
pertinent to evaluating the RACM requirement under the current version
of the Act in the circumstances presented by HGB.
    EPA believes it would be unreasonable to require the implementation
of RACM before a determination can be made of what is ``reasonably''
available based on whether implementation will expedite attainment.
EPA's statements in the General Preamble are consistent with this
approach. In the General Preamble EPA repeatedly stated, that it would
be unreasonable to require a plan to include the implementation of all
technologically and economically available control measures even though
such measures would not expedite attainment. General Preamble, 57 FR
13498, 13543, 13560 (April 16, 1992). Texas is in the process of
developing an attainment demonstration that will ascertain which
measures will expedite attainment. It would be unreasonable, in the
meantime, to require implementation of all measures before a
determination of their usefulness and necessity can be determined.
Texas is not being excused from adopting RACM; Texas will make its RACM
submission at the time it submits its attainment demonstration under
the severe area classification. EPA will review the State's submission
at that time
    A commenter cites Ober v. EPA, 84 F.3d 304 (9th Cir. 1996), for the
proposition that a moderate area that is reclassified as serious must
comply with moderate area SIP requirements, and that reclassification
does not delay or supersede existing SIP requirements. But Ober's
discussion of the obligation to meet SIP requirements was not based on
section 181(b)(3), but rather was in the context of the provisions
governing the PM-10 standard, and was explicitly based on the
consideration that there were separate requirements for the 24-hour and
annual PM-10 standards. The Court concluded that given these two
standards, the inability of the area to attain the annual PM-10
standard by the moderate area deadline, and resulting reclassification
to serious, did not relieve the State of the obligation to meet the
moderate area requirements of the separate 24-hour standard. The
passage cited by the commenter, from footnote 2 of the opinion, makes
clear that the moderate area PM-10 requirements referred to relate to
the 24-hour standard. In the case of HGB, which involves the ozone
standard, there is no such separate standard. In addition, the passage
the commenter quotes from Ober cites section 7513a(b)(1), which merely
states that a serious PM-10 nonattainment area must comply with
moderate as well as serious area requirements. It does not address the
issue of whether an area that has been voluntarily reclassified under
the ozone standard must submit an attainment demonstration by a
deadline that has been rendered obsolete by reclassification.
    Comment: Comments were received that EPA has correctly deferred
submittal requirements, as CAA attainment demonstration requirements of
the new classification supersede requirements of the previous
classification.
    Response: We agree with the commenters that certain attainment-
demonstration related requirements of the lower classification are
superseded. See Responses above.
    Comment: Comments were received that a reclassification to severe
will release Texas from sanctions for failing to submit a proper SIP or
meet the attainment deadlines of the former moderate classification.
Comments stated that Texas should not be able to avoid any penalties
for noncompliance by virtue of ``an improper reclassification''. A
commenter stated that Congress intended the reclassification process to
be used as ``a last resort''.
    Response: Congress placed no limitations on a State's ability to
request reclassification to a higher classification, and provided for
no discretion for EPA to deny such a request. EPA believes that a
voluntary reclassification is a legitimate method provided by the CAA
to deal with the circumstances of HGB, as discussed earlier in these
Responses. Since Texas submitted its request for reclassification in a
timely fashion, EPA sees no reason to make any finding regarding
whether or not Texas' moderate attainment plan demonstrated attainment
or to apply sanctions at this time. Upon reclassification, the moderate
area attainment demonstration-related requirements are superseded by
the severe area attainment demonstration requirements. See Responses to
Comments above. Texas has not been released from the obligation to
comply with SIP submission deadlines for other moderate area
requirements not related to the attainment demonstration.
    Comment: A commenter stated that EPA contends that more stringent
requirements accompanying the higher classification removes the
incentive for states to request an improper reclassification with a
later attainment date. The commenter states, however, that EPA
acknowledges that because HGB was classified as severe under the 1-hour
standard, many of the more stringent requirements are already being
implemented. The commenter asserts that with the increased compliance
burden removed, reclassification appears to be an effort by Texas to
postpone attainment and sanctions.
    Response: EPA does not agree that reclassification relieves Texas's
compliance burden. Texas still confronts additional and more stringent
requirements under a severe classification for the 8-hour standard, and
must still attain the standard as expeditiously as practicable, and
meet the requirements under its severe classification for RACM and RFP.
These are important consequences of reclassification, and Texas's
obligation to comply with these requirements under the 8-hour ozone
standard is a significant one.

IV. Final Action

    After fully considering all comments received on the proposed rule
and pursuant to CAA section 181(b)(3): (1) The HGB area is reclassified
as a severe nonattainment area for the 1997 8-hour ozone standard; and
(2) we find that April 15, 2010, is the appropriate SIP submittal date
for a revised SIP meeting the requirements for the severe area
classification and demonstrating that the HGB area will attain the 1997
8-hour standard as expeditiously as practicable, but no later than June
15, 2019.
    A revised SIP for the HGB area must include all the requirements
for serious ozone nonattainment area plans, such as: (1) Enhanced
ambient monitoring (CAA section 182(c)(1)); (2) an enhanced vehicle
inspection and maintenance program (CAA section 182(c)(3)); (3) a clean
fuel vehicle program or an approved substitute (CAA section 182(c)(4)),
and (4) gasoline vapor recovery for motor vehicle refueling emissions
(CAA section 182(b)(3)). The revised SIP must also meet the severe area
requirements, including: (1) An attainment demonstration (40 CFR
51.908); (2) provisions for reasonably available control technology
(RACT) and reasonably available control measures (RACM) (40 CFR
51.912); (3) reasonable further progress reductions in volatile organic
compound (VOC) and nitrogen oxide (NOX) emissions (40 CFR
51.910); (4) contingency measures to be implemented in the event of
failure to meet a milestone or attain the standard (CAA sections
172(c)(9) and 182(c)(9)); (5) transportation control measures to offset
emissions from growth in vehicle miles traveled (CAA section
182(d)(1)(A)); (6) reformulated gasoline

(CAA 211(k)(10)(D)); and (7) NSR permits (40 CFR part 165). See also
the requirements for serious and severe ozone nonattainment areas set
forth in CAA sections 182(c), 182(d) and 185. Because the HGB area was
classified as severe under the 1-hour ozone standard, many of these
requirements are currently being implemented.
    The revised SIP for the HGB area must also contain adopted measures
sufficient to achieve required reasonable further progress in emission
reductions and to attain the 8-hour ozone NAAQS as expeditiously as
practicable but not later than June 15, 2019. The new attainment
demonstration should be based on the best information available.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to Executive Order 12866. Voluntary reclassifications under
section 181(b)(3) of the CAA are based solely on requests by the State,
and EPA is required under the CAA to grant them. These actions do not,
in and of themselves, impose any new requirements on any sectors of the
economy. In addition, because the statutory requirements are clearly
defined with respect to the differently classified areas, and because
those requirements are automatically triggered by reclassification,
reclassification does not impose a materially adverse impact under
Executive Order 12866. For this reason, this action is also not subject
to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001).
    In addition, I certify that this rule will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). And these actions do
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4), because EPA is required to grant requests by
states for voluntary reclassifications and such reclassifications in
and of themselves do not impose any federal intergovernmental mandate.
This rule also does not have tribal implications because it will not
have a substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
    This action also does not have Federalism implications because it
does 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, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action does not alter the relationship or the
distribution of power and responsibilities established in the CAA.
    This rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because EPA interprets E.O. 13045 as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it grants a voluntary reclassification, and EPA's
approval is mandatory.
    As discussed above, a voluntary reclassification under section
181(b)(3) of the CAA is based solely on the request of a state, and EPA
is required to grant such a request. In this context, it would be
inconsistent with applicable law for EPA, when it grants a state's
request for a voluntary reclassification, to use voluntary consensus
standards. Thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)
also do not apply. In addition, this rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. As stated earlier in this Notice, EPA
is taking final action granting the State's request for a voluntary
reclassification. The plain language of section 181(b)(3) of CAA
mandates that we ``shall'' approve such a request if it is made in
accordance with the requirements of the Act, and, as such, does not
provide the Agency with the discretionary authority to address concerns
raised outside the Act, including those contained in Executive Order
12898.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 1, 2008. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 to reclassify the HGB area as a severe
ozone nonattainment area and to adjust applicable deadlines 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: September 18, 2008.
Richard E. Greene,
Regional Administrator, Region 6.

0
Part 81, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 81--[AMENDED]

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

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

0
2. In Sec.  81.344 the table entitled ``Texas--Ozone (8-hour
Standard)'' is amended by revising the entries for Houston-Galveston-
Brazoria, TX to read as follows:

Sec.  81.344  Texas.

* * * * *

                                         Texas--Ozone (8-Hour Standard)

----------------------------------------------------------------------------------------------------------------
                                         Designation a                            Classification
       Designated area        ----------------------------------------------------------------------------------
                                   Date 1            Type            Date 1                    Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Houston-Galveston-Brazoria,
 TX:
    Brazoria County..........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Chambers County..........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Fort Bend County.........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Galveston County.........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Harris County............  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Liberty County...........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Montgomery County........  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.
    Waller County............  ..............  Nonattainment...             (4)  Subpart 2/Severe 15.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * *
\4\ October 31, 2008.

* * * * *

 [FR Doc. E8-22685 Filed 9-30-08; 8:45 am]

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