Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations 56983 

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. 

2Under 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. 

an amendment to State Rule 326 IAC 

11–7 that was adopted by Indiana on 

February 7, 2007. 

§ 62.3651 Identification of sources. 

The plan applies to all existing MWCs 

with the capacity to combust greater 

than 250 tons per day of municipal solid 

waste, and for which construction, 

reconstruction, or modification was 

commenced on or before September 20, 

1994, as consistent with 40 CFR Part 60, 

subpart Cb. 

§ 62.3652 Effective Date. 

The effective date of Phase I of the 

approval of the Indiana State plan for 

MWCs with the capacity to combust 

greater than 250 tons per day of 

municipal solid waste was January 18, 

2000. 

Phase II of the State plan revision is 

effective December 1, 2008. 

[FR Doc. E8–22952 Filed 9–30–08; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 

214–665–7253 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 

(214) 665–6645; fax number 214–665– 

7263; e-mail address 

young.carl@epa.gov. 

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

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 


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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. 

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 


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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 


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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 § 51.902(a) (FROM 40 CFR 51.903) 

Area class 

8-hour design 

value 

(ppm ozone) 

Maximum period 

for attainment 

dates in state 

plans 

(years after 

effective date of 

nonattainment 

designation for 8- 

hour NAAQS) 

Marginal .................................................................. From up to 1 ............................................................ 0.085 

0.092 

3 

Moderate ................................................................. From up to 1 ............................................................ 0.092 

0.107 

6 

Serious .................................................................... From up to 1 ............................................................ 0.107 

0.120 

9 

Severe–15 ............................................................... From up to 1 ............................................................ 0.120 

0.127 

15 

Severe–17 ............................................................... From up to 1 ............................................................ 0.127 

0.187 

17 

Extreme ................................................................... Equal to or above ................................................... 0.187 20 

1But 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 


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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 ‘‘bumpup’’ 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 


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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 


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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 (mid2008), 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 


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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 


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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 


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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 


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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 attainmentdemonstration 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 


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56994 Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations 

(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. 

■ Part 81, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 81—[AMENDED] 

■ 1. The authority citation for part 81 

continues to read as follows: 

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

■ 2. In § 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: 


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Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations 56995 

§ 81.344 Texas. 

* * * * * 

TEXAS—OZONE (8-HOUR STANDARD) 

Designated area 

Designation a Classification 

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. 

1This date is June 15, 2004, unless otherwise noted. 

*****

4October 31, 2008. 

* * * * * 

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

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2008–0381; FRL–8383–9] 

Aspergillus flavus NRRL 21882; 

Exemption from the Requirement of a 

Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes an 

exemption from the requirement of a 

tolerance for residues of the fungal 

active ingredient Aspergillus flavus 

NRRL 21882 on the food and feed 

commodities of corn: Corn, field, forage; 

corn, field, grain; corn, field, stover; 

corn, field, aspirated grain fractions; 

corn, sweet, kernel plus cob with husk 

removed; corn, sweet, forage; corn, 

sweet, stover; corn, pop, grain; and corn, 

pop, stover when applied/used as an 

anti-fungal agent to displace aflatoxinproducing Aspergillus flavus from 

treated commodities. Circle One Global, 

Inc. submitted a petition to EPA under 

the Federal Food, Drug, and Cosmetic 

Act (FFDCA), requesting an exemption 

from the requirement of a tolerance. 

This regulation eliminates the need to 

establish a maximum permissible level 

for residues of Aspergillus flavus NRRL 

21882. 

DATES: This regulation is effective 

October 1, 2008. Objections and 

requests for hearings must be received 

on or before December 1, 2008, and 

must be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2008–0381. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) 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 in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 

FOR FURTHER INFORMATION CONTACT: 

Shanaz Bacchus, Biopesticides and 

Pollution Prevention Division (7511P), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–8097; e-mail address: 

bacchus.shanaz@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to: 

•Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How Can I Access Electronic Copies 

of this Document? 

In addition to accessing electronically 

available documents at http:// 

www.regulations.gov, you may access 

this Federal Register document 


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