2010-26261. Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Texas; Beaumont/Port Arthur Ozone Nonattainment Area: Redesignation to Attainment for the 1997 8-Hour Ozone Standard and ...

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve a request from the State of Texas to redesignate the Beaumont/Port Arthur (BPA) Texas ozone nonattainment area to attainment of the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS). EPA is making a final determination that the BPA nonattainment area has attained the 1997 8-hour ozone NAAQS, based on complete, quality-assured, and certified ambient air quality monitoring data for 2006-2008. Preliminary data available for 2009 and 2010 show that the area continues to attain the 1997 8-hour ozone NAAQS.

In finalizing its approval of the redesignation request, EPA also approves, as a revision to the BPA State Implementation Plan (SIP), a 1997 8-hour ozone maintenance plan that includes a 2021 Motor Vehicle Emissions Budget (MVEB). EPA is also approving the BPA area's 2002 base year emissions inventory as part of the BPA SIP. EPA also is approving as part of the BPA SIP, the Texas Clean-Fuel Vehicle (CFV) Program Equivalency Demonstration. EPA finds that with final approval of these revisions, the area has a fully approved SIP that meets all of the 1997 8-hour ozone requirements and 1-hour ozone anti-backsliding requirements under section 110 and Part D of the Federal Clean Air Act (CAA or Act) that are applicable for purposes of redesignation. EPA is also approving a determination that the BPA area is meeting the 1-hour ozone standard based upon three years of complete, quality-assured, and certified ambient air quality monitoring data for 2006-2008. Preliminary data available for 2009 and 2010 show that the area continues to attain the standard.

Additionally, EPA is taking final action to approve the post-1996 Rate of Progress (ROP) plan's contingency measures, the substitute control measures for the failure-to-attain contingency measures, and the removal from the Texas SIP of a 1-hour ozone failure-to-attain contingency measure, a volatile organic compound (VOC) SIP rule for marine vessel loading, as meeting the requirements of section 110(l) and part D of the Act.

EPA also is providing clarification of an earlier separate EPA rulemaking action approving the Section 110(a)(1) Maintenance Plan for the 1997 8-hour ozone standard for the El Paso 1997 8-hour attainment area.

DATES:

Effective Date: This rule will be effective November 19, 2010.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R06-OAR-2008-0932. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., 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, Air Planning Branch, Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Ms. Ellen Belk, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone [phone]; fax number 214-665-7263; e-mail address [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this rule?

II. What comments did we receive on the proposed rule?

III. What actions is EPA taking?

IV. Statutory and Executive Order Reviews

I. What is the background for this rule?

The background for today's actions is discussed in detail in EPA's May 17, 2010, proposal to approve Texas' redesignation request (75 FR 27514). In that proposed action, we noted that, under EPA regulations at 40 CFR part 50, the 1997 8-hour ozone standard is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations is less than or equal to 0.08 parts per million (ppm) (see 69 FR 23858, April 30, 2004, for more information). Under the CAA, EPA may redesignate a nonattainment area to attainment if sufficient complete, quality-assured data are available to determine that the area has attained the standard and if it meets the other CAA redesignation requirements in section 107(d)(3)(E).

The TCEQ, on December 16, 2008, submitted a complete request to redesignate the BPA area to attainment for the 1997 8-hour ozone standard. The redesignation request included three years of complete, quality-assured data for the period of 2005 through 2007, indicating the 8-hour NAAQS for ozone, as promulgated in 1997, had been attained for the BPA area. Complete, quality-assured monitoring data for 2006-2008 also show that the area continues to attain the 1997 8-hour ozone standard. Preliminary data available for the 2009 and 2010 ozone seasons indicate that the area continues to be in attainment.

The request also included a maintenance plan with associated MVEBs, the 2002 base year emission inventory, and the sole outstanding 1-hour ozone anti-backsliding requirement for the BPA area, the Texas CFV Program Equivalency Demonstration. The submitted MVEB for nitrogen oxides (NO_X) and VOC for the BPA area is defined in the table below:

Beaumont/Port Arthur NO_X and VOC MVEB

[Summer season tons per day]

Pollutant	2021
NOX	* 7.24
VOC	4.77
* Includes an allocation of 1 tpd from the available NOX safety margin.

The submittal met the adequacy criteria in 40 CFR 93.118(e)(4), and on April 1, 2010 (75 FR 16456), EPA published a Federal Register notice deeming the 2021 MVEB for Beaumont/Port Arthur, Texas adequate for transportation conformity purposes.

Apart from the redesignation request, the TCEQ also submitted and EPA proposed to approve the 1-hour ozone Post-1996 ROP Plan's contingency measures, backfill failure-to-attain contingency measures, and removal from the Texas SIP under section 110(l) of a VOC marine vessel loading contingency measure.

The May 17, 2010 proposed rule and Technical Support Document provide a detailed discussion of how Texas met the redesignation requirements and other CAA requirements.

II. What comments did we receive on the proposed rule?

EPA provided a 30-day review and comment period, which closed on June 16, 2010. EPA received 25 comment letters in response to the proposed rulemaking, each of which expressed support for approving the request from the State of Texas to redesignate the BPA ozone nonattainment area to attainment for the 1997 8-hour ozone standard. The comment letters are available for review in the docket for this rulemaking. EPA received letters expressing support for the BPA redesignation approval from the following: Texas Commission on Environmental Quality, Austin; Executive Director, Southeast Texas Regional Planning Commission (SETRPC), Beaumont; Director, Transportation and Environmental Resources, SETRPC, Beaumont; Mayor, City of Beaumont; President, Greater Beaumont Chamber of Commerce; Executive Port Director, Port of Beaumont; Mayor, City of Bridge City; Mayor, City of Port Neches; Mayor, City of West Orange; Director of Public Works, City of West Orange; Mayor, City of Lumberton; Mayor, City of Nederland; County Judge, Orange County; Jefferson County Commissioners Court; County Judge, Hardin County; Texas State Representative, District 21, Texas House of Representatives; President, Caliber Solutions, Beaumont; Entergy Texas Inc., Beaumont; Goodyear Tire & Rubber Company, Beaumont; Oiltaking Beaumont Partners, L.P.; Chairman, Southeast Texas Plant Managers Forum, Nederland; Plant Manager, Solvay Solexis, Inc., Orange; Huntsman Petrochemical LLC, Port Neches; Sabine-Neches Navigation District, Nederland; and the Greater El Paso Chamber of Commerce. EPA also received additional comments submitted by the Greater El Paso Chamber of Commerce. We received no adverse comments on the proposed rule.

Comment: The Greater El Paso Chamber of Commerce requested that EPA take immediate action to make a determination that the El Paso County one-hour nonattainment area has attained the revoked one-hour ozone National Ambient Air Quality Standard (NAAQS).

Response: This rulemaking finalizes EPA's approval of Texas's request to redesignate the BPA area to attainment for the 1997 8-hour ozone standard and for a determination that the BPA area attained the 1-hour ozone standard. The commenter's request for a rulemaking determining attainment of the 1-hour standard for El Paso is outside the scope of our proposed action. EPA notes that we have previously approved the section 110(a)(1) maintenance plan for the El Paso 1997 8-hour ozone attainment area 74 FR 2387 (January 15, 2009).

Comment: The Greater El Paso Chamber of Commerce requested that EPA take immediate action to find that the Prevention of Significant Deterioration (PSD) program requirements are immediately effective in El Paso County.

Response: As noted in the previous response to comment, EPA's rulemaking is not focused on the El Paso 1997 8-hour maintenance area, but on the redesignation of the BPA area for the 1997 8-hour ozone standard and a determination of attainment for that area for the 1-hour ozone standard. There is one respect, however, in which EPA wishes to respond in order to harmonize and assure consistency of treatment for areas with approved 1997 8-hour maintenance plans, whether they are initially designated attainment (like El Paso) or redesignated to attainment (like BPA) for that standard. EPA thus wishes to clarify a statement it previously made in approving the El Paso section 110(a)(1) maintenance plan for the 1997 8-hour standard 74 FR 2387 (January 15, 2009). In that notice, EPA stated that a separate analysis under section 110(l) would be required to transition from a nonattainment New Source Review (NSR) permitting program to a PSD permitting program. Since that time, EPA has had further opportunity to consider the applicable statutory and regulatory provisions and the decision in South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006). As a result, we no longer believe that the Clean Air Act requires a separate 110(l) analysis to replace 1-hour nonattainment NSR with PSD once an area has been redesignated to attainment for the 1997 8-hour standard, or has an approved 110(a)(1) maintenance plan for that standard. In sum, we believe that the approach to the nonattainment NSR/PSD transition that we are adopting here with respect to BPA should also be extended to El Paso. Thus, as long as the Texas NSR SIP is clear that the PSD SIP requirements apply to an area such as El Paso, then that is all that is required by EPA.

III. What action is EPA taking?

EPA is taking final action to approve several related actions under the Act for the BPA ozone nonattainment area, consisting of Hardin, Jefferson, and Orange counties. Consistent with the Act, EPA is taking final action to determine that the BPA area has attained the 1997 8-hour ozone NAAQS and to approve a request from the State of Texas to redesignate the BPA area to attainment of the 1997 8-hour ozone standard. This determination is based on complete, quality-assured, and certified ambient air quality monitoring data for the 2006-2008 ozone seasons that show that the 1997 8-hour ozone NAAQS has been attained in the area. Preliminary data available for 2009 and 2010 indicate that the area continues to attain the 1997 8-hour ozone NAAQS. EPA is also finalizing a determination that the BPA area is meeting the 1-hour ozone standard. This determination is based on complete, quality-assured, and certified ambient air quality monitoring data for the 2006-2008 ozone seasons, as well as preliminary data available for 2009 and 2010 that indicate the area continues to attain the 1-hour ozone NAAQS.

EPA is taking final action to approve the 2002 base year emissions inventory as meeting the 1997 8-hour ozone requirement for the BPA 8-hour ozone nonattainment area. We are approving the State's CFV program equivalency demonstration as meeting the sole outstanding antibacksliding 1-hour ozone requirement for the BPA serious 1-hour ozone nonattainment area. We are finding that the BPA area, based upon this final approval of this emissions inventory and the CFV program equivalency determination, meets all the applicable CAA requirements under section 110 and Part D for purposes of redesignation for the 1997 8-hour ozone NAAQS including all the applicable antibacksliding CAA requirements for a serious 1-hour ozone nonattainment area. Further, EPA is taking final action to approve into the SIP, as meeting section 175A and 107(d)(3)(E)(iv) of the Act, Texas' maintenance plan for the BPA area for the 1997 8-hour ozone NAAQS. The maintenance plan shows maintenance of the standard through 2021. Additionally, EPA is approving the 2021 MVEB for NO_X and VOCs shown in the table in section I above, which was submitted by Texas for the BPA area in conjunction with its redesignation request and maintenance plan.

Consequently, EPA is taking final action to approve the State's request to redesignate the area from nonattainment to attainment for the 1997 8-hour ozone NAAQS. After evaluating Texas' redesignation request, EPA has determined that with this final approval of the above-identified SIP elements and the maintenance plan, the area meets the redesignation criteria set forth in section 107(d)(3)(E) and section 175A of the Act. The final approval of this redesignation request changes the official designation in 40 CFR part 81 for the BPA area from nonattainment to attainment for the 1997 8-hour ozone standard. EPA also notes that with this final redesignation to attainment for the 1997 8-hour ozone NAAQS and this final determination of attainment for the 1-hour ozone NAAQS, the 1-hour anti-backsliding obligations to submit planning SIPs to meet the attainment demonstration and reasonably available control measures (RACM) requirements, and the ROP and contingency measures requirements, cease to apply. Finalizing the 1-hour ozone attainment determination suspends for the BPA area the foregoing obligations, and they cease to apply upon EPA's final action redesignating the BPA area to attainment for the 1997 8-hour ozone standard. In addition, after final redesignation to attainment for the 1997-8-hour ozone standard, EPA does not require the continued application of 1-hour anti-backsliding nonattainment NSR, if Texas interprets its SIP as applying PSD to BPA in these circumstances.

EPA also is taking final action to approve the Post-1996 ROP Plan's contingency measures and backfill failure-to-attain contingency measures, and the removal from the Texas SIP under section 110(l) of a VOC marine vessel loading contingency measure.

Additionally, EPA is clarifying statements made and the approach it took with respect to the 1-hour ozone nonattainment NSR/PSD transition in its approval of the El Paso 110(a)(1) maintenance plan.

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by State law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the Clean Air Act for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, these actions merely do not impose additional requirements beyond those imposed by State law and the Clean Air Act. For that reason, these actions:

• Are not “significant regulatory actions” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 20, 2010. 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

40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Ozone
• Nitrogen dioxides
• Reporting and recordkeeping requirements
• Volatile organic compounds

40 CFR Part 81

• Environmental protection
• Air pollution control

Dated: September 30, 2010.

Lawrence E. Starfield,

Acting Regional Administrator, Region 6.

40 CFR parts 52 and 81 are amended as follows:

PART 52—[AMENDED]

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

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

Subpart SS—Texas

2. Section 52.2270 is amended as follows:

a. The table in paragraph (c) entitled, “EPA Approved Regulations in the Texas SIP” is amended under Chapter 115 (Reg 5), Subchapter C, Division 1, by revising the entry for Section 115.219.

b. The second table in paragraph (e) entitled, “EPA-Approved Non-Regulatory Provisions and Quasi Regulatory Measures in the Texas SIP” is amended by adding eight new entries at the end.

The revision and additions read as follows:

§ 52.2270

Identification of plan.

* * * * *

(c) * * *

EPA Approved Regulations in the Texas SIP

State citation	Title/subject	State approval/submittal date	EPA approval date	Explanation
*         *         *         *         *         *         *
Chapter 115 (Regt 5)—Control of Air Pollution from Volatile Organic Compounds
*         *         *         *         *         *         *
Subchapter C—Volatile Organic Compound Transfer Operations
Division 1: Loading and Unloading of Volatile Organic Compounds
*         *         *         *         *         *         *
Section 115.219	Counties and Compliance	11/15/2006	10/20/2010 [Insert citation of publication in Federal Register]
*         *         *         *         *         *         *

(e) * * *

* * * * *

EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP

Name of SIP provision	Applicable geographic or nonattainment area	State submittal/effective date	EPA approval date	Comments
*         *         *         *         *         *         *
Redesignation Request for the 1997 8-hour Ozone NAAQS (Hardin, Jefferson, and Orange Counties)	Beaumont/Port Arthur, TX	12/10/2008	10/20/2010 [Insert citation of publication in Federal Register]
Determination of Attainment for the 1-hour Ozone NAAQS (Hardin, Jefferson, and Orange Counties)	Beaumont/Port Arthur, TX	12/10/2008	10/20/2010 [Insert citation of publication in Federal Register]
2002 Base Year Emissions Inventory (1997 8-hour Ozone NAAQS)	Beaumont/Port Arthur, TX	12/10/2008	10/20/2010 [Insert citation of publication in Federal Register]
Texas Clean-Fuel Vehicle Program Equivalency Demonstration (1-hour Ozone NAAQS)	Beaumont/Port Arthur, TX	12/10/2008	10/20/2010 [Insert citation of publication in Federal Register]
Substitute Control Measures for the SIP-Approved Failure-to-attain Contingency Measures (1-hour Ozone NAAQS)	Beaumont/Port Arthur, TX	12/10/2008	10/20/2010 [Insert citation of publication in Federal Register]
Post 1996 Rate of Progress Plan Contingency Measures (1-hour Ozone NAAQS)	Beaumont/Port Arthur, TX	11/16/2004	10/20/2010 [Insert citation of publication in Federal Register]
Maintenance Plan (1997 8-hour Ozone NAAQS, CAA Section 175A)	Beaumont/Port Arthur, TX	12/10/2008	10/20/2010 [Insert citation of publication in Federal Register]
2021 Motor Vehicle Emissions Budget (1997 8-hour Ozone NAAQS)	Beaumont/Port Arthur, TX	12/10/2008	10/20/2010 [Insert citation of publication in Federal Register]

3. Section 52.2275 is amended by adding paragraph (h) to read as follows:

§ 52.2275

Control strategy and regulations: Ozone.

* * * * *

(h) Determination of attainment for the 1-hour ozone standard and redesignation for the 1997 8-hour ozone standard. Effective November 19, 2010, EPA has determined that the Beaumont/Port Arthur ozone nonattainment area has attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS) and has redesignated the area to attainment for the 1997 8-hour ozone standard. With this final redesignation to attainment for the 1997 8-hour ozone NAAQS and this final determination of attainment for the 1-hour ozone NAAQS, the 1-hour anti-backsliding obligations to submit planning SIPs to meet the attainment demonstration and reasonably available control measures (RACM) requirements, and the ROP and contingency measures requirements, cease to apply.

PART 81—[AMENDED]

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

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

5. In § 81.344, the table entitled, “Texas-Ozone (8-Hour Standard)” is amended by: revising the entries for Beaumont/Port Arthur TX; Revising footnote 3; and adding a new footnote 4 at the end of the table.

The revisions and addition read as follows:

§ 81.344

Texas.

* * * * *

Texas-Ozone (8-Hour Standard)

Designated area	Designation a		Category/ Classification
	Date 1	Type	Date 1	Type
*         *         *         *         *         *         *
Beaumont/Port Arthur TX:
Hardin County	(3)	Attainment	(3)
Jefferson County	(3)	Attainment	(3)
Orange County	(3)	Attainment	(3)
*         *         *         *         *         *         *
3 Effective November 19, 2010.
4 Effective October 31, 2008.

* * * * *