ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R06-0AR-2008-0932; FRL- --1

Approval and Promulgation of Implementation Plans and Designation of Areas for Air

Quality Planning Purposes; Texas; Beaumont I Port Arthur Ozone Nonattainment Area:

Redesignation to Attainment for the 1997 8-Hour Ozone Standard and Determination of

Attainment for the I-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve a request from the State ofTexas to redesignate the

Beaumont-Port Arthur (BPA) Texas ozone nonattainment area to attainment ofthe 1997 8-hour

ozone standard. In proposing to approve this request, EPA also proposes to approve as a revision

to the BPA State Implementation Plan (SIP), a 1997 8-hour ozone maintenance plan with a 2021

Motor Vehicle Emissions Budget (MVEB). EPA is proposing to determine that the BPA

nonattainment area has attained the 1997 8-hour ozone National Ambient Air Quality Standard

(NAAQS), based on complete, quality-assured, and certified ambient air quality monitoring data

for the 2005 - 2007 and 2006-2008 monitoring periods, as well as data from 2009 that are in

EPA's Air Quality System (AQS) database but not yet certified, that demonstrate that the area
has attained and is continuing to attain the 1997 8-hour ozone NAAQS. EPA also is proposing

to make a determination that the BPA area is meeting the I-hour ozone standard based upon

three years of complete, quality-assured, and certified ambient air quality monitoring data for the

2005-2007 and 2006-2008 monitoring periods, as well as data from 2009 in AQS but not yet

certified.

EPA is proposing to approve the BPA area's 2002 base year emissions inventory as part

ofthe BPA SIP and to conclude that ifthis action is finalized, the area is meeting all ofits

applicable marginal area requirements for purposes ofredesignation for the 1997 8-hour ozone

NAAQS. EPA also is proposing to approve as part ofthe BPA SIP, the Texas Clean-Fuel

Vehicle (CFV) Program Equivalency Demonstration. EPA is proposing to find that ifthese

proposed approvals are finalized, the area will have a fully approved SIP that meets all of its

applicable 1997 8-hour requirements and I-hour anti-backsliding requirements under section 110

and Part D ofthe federal Clean Air Act (CAA or Act) for purposes ofredesignation.

Additionally, EPA is proposing to approve the post-I 996 Rate of Progress (ROP) plan's

contingencymeasures, the substitute control measures for the failure-to-attain contingency

measures, and the removal from the Texas SIP ofthe I-hour ozone failure-to-attain contingency

measure, a VOC SIP rule for marine vessel loading, as meeting the requirements ofsection

110(1) and part D ofthe Act.

DATES: Comments must be received on or before [insert date 30 days from date of publication

in the Federal Register].

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ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-0AR-2008-

0932, by one ofthe following methods:

• Federal Rulemaking Portal: http://www.regulations.gov. Follow the on-line

instructions for submitting comments.

• U.S. EPA Region 6 "Contact Us" web site: http://epa.gov/region6/r6coment.htm.

Please click on "6PD" (Multimedia) and select "Air" before submitting comments.

• E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also send a copy by

email to the person listed in the FOR FURTHER INFORMATION CONTACT section below.

• Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-

665-7263.

• Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental

Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

• Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L),

Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

Such·deliveries are accepted only between the hours of 8:00 a.m. and 4:00 p.m. weekdays except

for legal holidays. Special arrangements should be made for deliveries of boxed information,

Instructions: Direct your comments to Docket ID No. EPA-R06-0AR-2008-0932. EPA's policy

is that all comments received will be included in the public docket without change and may be

made available online at www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential Business Information (CBI)

or other information whose disclosure is restricted by statute. Do not submit through

www.regulations.gov or e-mail, information that you consider to be CBI or otherwise protected.

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The www.regulations.gov website is an "anonymous access" system, which means EPA will not

know your identity or contact information unless you provide it in the body of your comment. If

you send an e-mail comment directly to EPA without going through www.regulations.gov, your

e-mail address will be automatically captured and included as part ofthe comment that is placed

in the public docket and made available on the Internet. If you submit an electronic comment,

EPA recommends that you include your name and other contact information in the body of your

comment and with any disk or CD-ROM you submit. IfEPA cannot read your comment due to

technical difficulties and cannot contact you for clarification, EPA may not be able to consider

your comment. Electronic files should avoid the use ofspecial characters, any form of

encryption, and be free of any defects or viruses. For additional information about EPA's public

docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although

listed in the index, some information is not publicly available, e.g., CBI or other information

whose disclosure is restricted by statute. Certain other material, such as copyrighted material,

. will be publicly available only in hard copy. Publicly available docket materials are available

either electronically in 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 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

to make an appointment. If possible, please make the appointment at least two working days in

advance of your visit. There will be a fee of 15 cents per page for making photocopies of

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documents. On the day ofthe visit, please check in at the EPA Region 6 reception area at 1445

Ross Avenue, Suite 700, Dallas, Texas.

The State submittal, which is part ofthe EPA record, is also available for public

inspection at the State Air Agency listed below during official business hours by appointment:

Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle,

Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Belk, Air Planning Section (6PDL), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas

75202-2733, telephone (214) 665-2164; fax number 214-665-7263; e-mail address

belk.ellen@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, , , "we" "us" and "our"

means EPA.

Table ofContents

I. What are the Actions EPA is Proposing? .

II. What is the Background for these Actions?

A. What are the National Ambient Air Quality Standards?

B. What is Ozone and Why do we Regulate it?

C. What is the Background for the BPA Area under the l-hour Ozone NAAQS?

D. What is the Background for the BPA Area under the 1997 8-Hour Ozone

NAAQS?

III. What Are the Impacts ofthe Court Decisions on EPA's Phase 1 and 2 Implementation

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Rules upon the BPA Area Redesignation Request?

A. Summary ofthe Court Decisions

B. Summary of EPA's Analysis ofthe Impact ofthe Court Decisions on the BPA Area

1. Requirements under the Eight-Hour Ozone Standard

2. Requirements under the One-Hour Ozone Standard

IV. What are the CAA Criteria for Redesignation?

V. What is EPA's Proposed Determination Regarding Attainment for the 1997 8-hour and

the l-hour ozone NAAQS for the BPA Area?

A. Is the BPA Area Attaining the 1997 8-hour ozone NAAQS?

B. Is the BPA Area Attaining the l-hour Ozone NAAQS?

VI. Does the BPA Area Have a Fully approved SIP under section 11O(k) for the Section 110

and Part D Requirements ofthe CAA Applicable for Purposes ofRedesignation?

A. What are the General SIP Requirements Applicable for Purposes ofRedesignation for

the BPA Area?

B. What are the Part D Requirements Applicable for Purposes ofRedesignation for the

BPAArea?

1. What are the Part D Requirements Applicable for Purposes ofRedesignation

for the BPA Area under the l-hour Ozone Standard?

2. What are the Part D Requirements Applicable for Purposes ofRedesignation

for the BPA Area under the 1997 8-hour Ozone Standard?

C. Does the BPA Area have a fully approved applicable SIP under section 11O(k) ofthe

CAA for purposes ofRedesignation?

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VII. Are the Air Quality Improvements in the BPA Area Due to Permanent and Enforceable

Emissions Reductions?

A. Emissions Reductions As Shown by Emission Inventory Data

B. Impact of Emissions Controls Implementation: Trend Analysis

C. Permanent and Enforceable Emissions Controls Implemented

1. Reasonably Available Control Techniques

2. ROP Plans and Attainment Demonstration Plan

3. NOx Control Rules

4. Federal Emission Control Measures

5. Additional State and Local Emission Reductions

6. Controls to Remain In Effect

VIII. Does Texas have a Fully Approvable 1997 8-Hour Ozone Maintenance Plan Pursuant to

Section 175A ofthe CAA for the BPA area?

A. What is Required in an Ozone Maintenance Plan?

B. How Did Texas Estimate the VOC and NOx Emissions for the Attainment Year

and the Projection Years?

C. Has the State Demonstrated Maintenance ofthe Ozone Standard in the BPA area?

D. Monitoring Network

E. Verification ofContinued Attainment

F. What is the Maintenance Plan's Contingency Plan?

IX. What is EPA's Evaluation of the BPA Area's Motor Vehicle Emissions Budget?

A. What are the Transportation Requirements for Approvable MVEBs?

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B. What is the Status ofEPA's Adequacy Determination?

C. Is the MVEB Approvable?

X. EPA's Evaluation ofthe Backfill Contingency Measures for the l-Hour Ozone Failure-toAttain Contingency Measures and the State's Request to Remove an Unimplemented VOC Rule

from the Texas SIP

XI. Proposed Actions

XII. Statutory and Executive Order Reviews

I. What are the Actions EPA is Proposing?

EPA is proposing several related actions pursuant,to the Act for the BPA ozone

nonattainment area, consisting of Hardin, Jefferson, and Orange counties. EPA is proposing to

determine that the BPA area has attained the 1997 8-hour ozone NAAQS, based on the most

recent three years of complete, quality-assured monitoring data. EPA is proposing to find that

the BPA area has met the requirements for redesignation under section 107(d)(3)(E) ofthe Act,

and is therefore proposing to approve a request from the State ofTexas to redesignate the BPA

area to attainment ofthe 1997 8-hour ozone standard. EPA is also proposing to approve,

pursuant to section 175A ofthe Act, the area's 1997 8-hour ozone maintenance plan as a revision

to the Texas SIP; to approve the plan's associated 2021 MVEB; and to approve the 2002 base

year emissions inventory. With the approval ofthe 2002 base year emissions inventory, EPA is

proposing to find that the BPA area has satisfied all marginal area requirements for the 1997 8-

hour ozone NAAQS. See Section VLB.2. and the Technical Support Document (TSD), Part LA.,

for further information on how the BPA area satisfies all the other marginal area requirements.

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In addition, EPA is proposing to approve the Texas Clean-Fuel Vehicle (CFV) Program

Equivalency Demonstration as meeting a serious area anti-backsliding requirement for the l-hour

ozone standard. With the approval ofthe Texas CFV equivalency determination, we are

proposing to find that the BPA has satisfied all 1 hour anti-backsliding requirements for a serious

area for the purposes ofredesignation. For further information on how the area meets the serious

area requirements apart from the CFV Program, please see Section VI.B.I. and the TSD, Part

ILA. Further, EPA is proposing to make a determination that the BPA area is meeting the I-hour

ozone standard.

Finally, EPA is proposing to approve the I-hour ozone post-l 996 rate of progress (ROP)

plan's contingency measures, substitute measures for the SIP-approved failure-to-attain

contingency measures, and the removal from the Texas SIP ofthe contingency measure, a VOC

SIP rule for marine vesse1loading, as meeting the requirements ofsection 110(1) and part D.

Each component ofthis action is discussed in greater detail below.

First, EPA is proposing to make a determination under the Act that the BPA area has

attained the 1997 8-hour ozone NAAQS. The BPA area includes three counties in ·Texas:

Hardin, Orange, and Jefferson. This proposed determination is based on complete, qualityassured and certified ambient air quality monitoring data for the 2005 - 2007 and 2006 - 2008

ozone seasons that demonstrate that the 1997 8-hour ozone NAAQS has been attained in the

area. Data entered into EPA's Air Quality System database (AQS) for 2009, but not yet certified

also show that the area continues to attain the standard.

As one ofthe requirements for approving a redesignation request, EPA is proposing to

approve as a revision to the Texas SIP, the State's maintenance plan for the BPA area as meeting

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the requirements ofsection l75A. EPA also is proposing to approve the 2002 base year

emissions inventory for the BPA area as meeting a requirement ofthe Act for a marginal 1997 8-

hour ozone area, section 182(a)(l). Additionally, we are proposing to approve the Texas CFV

Program Equivalency Demonstration as meeting the serious area requirements ofthe Act for the

l-hour ozone standard. With the approval ofthe 2002 base year emissions inventory and the

CFV Program Equivalency Demonstration, EPA is proposing to find that the area has met all the

applicable 8-hour ozone and l-hour anti-backsliding requirements ofsection 110 and part D of

the Act for purposes ofredesignation, and that the BPA area has a fully approved SIP under

section 11O(k) for purposes ofredesignation.

Based upon the above, EPA is proposing to approve a request from the State of Texas

submitted on December 16,2008, through the Texas Commission on Environmental Quality

(TCEQ), to redesignate the BPA area to attainment ofthe 1997 8-hour ozone standard. IfEPA's

determination that the area has attained the standard is made final and the BPA area is

redesignated to attainment with an approved 8-hour ozone NAAQS maintenance plan, then under

the provisions of EPA's ozone implementation rule, the obligations to submit and have an

approved l-hour ozone NAAQS attainment demonstration and reasonably available control

measures determination (RACM) and contingency measures no longer apply. As discussed later,

BPA was not required to have an 8-hour ozone attainment demonstration because Texas

submitted a redesignation request before the area's moderate area SIP requirements, including an

attainment demonstration, were due (for more information, please see section VI).

EPA is proposing to determine that the BPA area is meeting the l-hour ozone standard.

This determination is based on complete, quality-assured and certified ambient air quality

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monitoring data for the 2005-2007 and 20Q6-2008 monitoring periods which demonstrate that the

I-hour ozone NAAQS has been attained in the area; this determination is also consistent with

data for 2009 that are in AQS but not yet certified. The obligations for the state to submit and for

EPA to approve a l-hour serious area attainment demonstration and RACM determination and

contingency measures will be suspended ifEPA's proposal to determine that the area has attained

the l-hour standard is finalized, and the area will be relieved ofthese obligations upon final

redesignation for the 1997 8-hour ozone standard. See 40 CFR 51.905(a)(3)(ii).

Even though the obligations to submit and have approved the l-hour contingency

measures are suspended upon a determination that the area is attaining the l-hour standard, and

terminated upon the BPA area's redesignation to attainment for the 8-hour ozone NAAQS, EPA

is proposing to approve the post-I 996 ROP plan's contingency measures and the backfill failureto-attain contingency measures. EPA is proposing this action on the contingency measures

because the State is requesting that an existing SIP-approved l-hour ozone failure-to-attain

contingency measures be removed from the SIP, and has not indicated that it wishes to withdraw

the contingency measures SIP revision submittals. EPA is proposing to approve the removal

from the Texas SIP ofthe failure-to-attain contingency measure, a VOC SIP rule for marine

vessel loading, as meeting the requirements ofsection 110(1) and part D.

II. What is the Background for these Actions?

A. What are the National Ambient Air Quality Standards?

Section 109 ofthe Act requires EPA to establish NAAQS (or standards) for pollutants

that "may reasonably be anticipated to endanger public health and welfare," and to develop a

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primary and secondary standard for each NAAQS. The primary standard is designed to protect

human health with an adequate margin ofsafety, and the secondary standard is designed to

protect public welfare and the environment. EPA has set NAAQS for six common air pollutants,

referred to as criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate

matter, and sulfur dioxide. These standards present state and local governments with the

minimum air quality levels they must meet to comply with the Act. Also, these standards

provide information to residents ofthe United States about the air quality in their communities.

A State's SIP addresses these requirements, as required by section 110 and other provisions of

the Act. The SIP is a set of air pollution regulations, control strategies, other means or

techniques, and technical analyses developed by the state, to ensure that the state meets the

NAAQS.

B. What is Ozone and Why do we Regulate it?

Ozone, a gas composed ofthree oxygen atoms, at the ground level is generally not

emitted directly by sources such as from a vehicle's exhaust or an industrial smokestack; rather,

ground level ozone is produced by a chemical reaction between nitrogen oxides (NOx) and VOCs

in the presence ofsunlight and high ambient temperatures. NOxand VOCs are referred to as

precursors of ozone. Motor vehicle exhaust and industrial emissions, gasoline vapors, and

chemical solvents all contain NOxand VOCs. Urban areas tend to have high concentrations of

ground-level ozone, but areas without significant industrial activity and with relatively low

vehicular traffic are also subject to increased ozone levels because wind carries ozone and its

precursors many miles from the sources. The Act establishes a process for air quality

management through the NAAQS.

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Repeated exposure to ozone pollution may cause lung damage. Even at very low

concentrations, ground-level ozone triggers a variety of health problems including aggravated

asthma, reduced lung capacity, and increased susceptibility to respiratory illnesses like

pneumonia and bronchitis. It can also have detrimental effects on plants and ecosystems.

C. What is the Background for the BPA Area under the J-hour Ozone NAAQS?

On December 11,2002, the U.S. Court of Appeals for the Fifth Circuit vacated EPA's

attainment date extension policy, which had been applied to extend the I-hour ozone attainment

deadline for the BPA area without reclassifying the area. Sierra Club v. EPA, 314 F.3d 735 (5th

Cir.2002). Thereupon, EPA on March 30,2004, withdrew the action extending the attainment

deadline for BPA, finalized its finding that the area failed to attain the I-hour ozone standard by

the moderate area deadline, and reclassified the BPA area by operation oflaw, to serious

nonattainment for the I-hour ozone standard. See 61 FR 16483. As a result ofits

reclassification to serious, the State was required, among other things, to submit by April 29,

2005, a new I-hour attainment demonstration SIP with an attainment date ofNovember 15,2005

with·new MVEBs and a new RACM analysis, a post-1996 rate ofprogress (RaP) plan with

associated MYEBs and contingency measures, a new clean-fuel vehicle program or substitute,

demonstrate the area met RACT, implement the EPA-triggered failure-to-attain contingency

measures, submit a replacement for, i.e., backfill for, the triggered failure-to-attain contingency

measures, and to meet the remaining serious area requirements under section 182(c) ofthe Act.

The State submitted the required elements on November 16, 2004, as revised on October 15,

2005, and further revised on December 16,2008. EPA has approved all ofthe I-hour serious

area requirements for the BPA area, except for the CFV program, the Rap plan's contingency

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measures, the replacement failure-to-attain contingency measures, and the attainment

demonstration SIP with associated MVEBs and RACM analysis. See Section VI.B.l. for further

details.

D. What is the Background for the BPA Area under the 1997 8-Hour Ozone

NAAQS?

On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per

million (ppm), which is more protective than the previous l-hour ozone standard (62 FR

38855).1 The EPA published the 1997 8-hour ozone designations and classifications on April

30,2004 (69 FR 23858). The BPA area was designated nonattainment and initially classified as

marginal. The area includes three counties: Hardin, Jefferson, and Orange counties (these

constitute the former l-hour ozone nonattainment area). The effective date of designation for the

1997 8-hour ozone NAAQS was June 15; 2004. Under the marginal nonattainment designation,

the latest attainment date for the BPA area was June 15, 2007. The BPA did not monitor

attainment ofthe 1997 8-hour ozone NAAQS by the June 15, 2007 deadline, based upon

. complete, quality-assured and certified ambient air quality monitoring data for the 2004-2006

ozone seasons. The BPA area already met all ofthe requirements for a 1997 8-hour ozone

marginal area except for the base year emissions inventory requirement. See Section VI. B. 2. for

further details.

Therefore, EPA determined that the BPA area had failed to attain the 1997 8-hour ozone

1 On March 27,2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of0.075 ppm. On

January 6, 2010, EPA proposed to set the level ofthe primary 8-hour ozone standard within the range of0.060 to

0.070 ppm, rather than at 0.075 ppm. EPA anticipates that by August 20 10 it will have completed reconsideration of

the standard and thereafter will proceed with designations. The actions addressed in today's proposed rulemaking

relate only to redesignation for the 1997 8-hour ozone standard. EPA's actions with respect to this new standard do

not affect EPA's action here.

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standard by the applicable attainment deadline and the area was reclassified by operation oflaw

as a moderate 1997 8-hour ozone nonattainment area, effective April 17, 2008 (73 FR 14391).

This determination was based on ambient air quality data from the 2004-2006 monitoring period.

More recent air quality data for the 2005-2007 and 2006-2008 monitoring periods, as well as

2009 data that are in AQS but not yet certified, however, indicate that the BPA area is now

attaining the 1997 8-hour ozone standard. See Section V.A.

The deadline for submission ofrequirements to meet the area's new 8-hour moderate

nonattainment area classification was January 1,2009 (73 FR 14391). The TCEQ, on December

16, 2008, submitted a request that EPA determine that the BPA area has attained the 1997 8-hour

ozone standard and redesignate it to attainment. The request included a maintenance plan with

associated MVEBs, the 2002 base year emission inventory, the Texas CFV Program Equivalency

Demonstration, and the backfill failure-to-attain contingency measures. The complete

redesignation request was received by EPA before the deadline for submittal ofthe moderate area

SIP requirements for the BPA area under the 1997 8-hour ozone standard.

III. What Are the Impacts of the Court Decisions on EPA's Phase 1 and 2

Implementation Rules upon the BPA Area Redesignation Request?

A. Summary of the Court Decisions

This section sets forth EPA's views on the effect ofthe D.C. Circuit's rulings on this

proposed redesignation action. For the reasons set forth below, EPA does not believe that the

Court's rulings alter any requirements relevant to this redesignation action or prevent EPA from

proposing or ultimately finalizing this redesignation. EPA believes that the Court's December

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22, 2006, June 8, 2007, and July 10, 2009, decisions impose no impediment to moving forward

with redesignation ofthis area to attainment ofthe 1997 8-hour ozone NAAQS.

EPA published a first phase rule governing implementation ofthe 1997 8-hour ozone

standard (Phase 1 Rule) on April 30, 2004 (69 FR 23951). The Phase 1 Rule addresses

classifications for the 1997 8-hour NAAQS and for revocation for the l-hour NAAQS; how

anti-backsliding principles will ensure continued progress toward attainment ofthe 1997 8-hour

NAAQS; attainment dates; and the timing of emissions reductions needed for attainment. The

Phase 1 Rule revoked the l-hour ozone standard. The Phase 1 Rule also provided that l-hour

ozone nonattainment areas are required to adopt and implement "applicable requirements"

according to the area's classification under the l-hour ozone standard for anti-backsliding

purposes. See 40 CFR §51.905(a)(i). On May 26, 2005, we determined that an area's l-hour

designation and classification as ofJune 15,2004 would dictate what l-hour obligations remain

as "applicable requirements" under the Phase 1 Rule. 40 CFR 51.900(f). (70 FR 30592).

On December 22, 2006, the U.S. Court of Appeals for the District ofColumbia Circuit

vacated EPA's Phase 1 Rule in South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882

(D.C. Cir. 2006). On June 8, 2007, in response to several petitions for rehearing, the court

clarified that the Phase 1 rule was vacated only with regard to those parts ofthe rule that had

been successfully challenged. See 489 F.3d 1245 (D.C. Cir. 2007), cert. denied, 128 S.Ct. 1065

(2008). By limiting the vacatur, the Court let stand EPA's revocation ofthe l-hour standard and

those anti-backsliding provisions ofthe Phase 1 rule that had not been successfully challenged.

The June 8, 2007 opinion reaffirmed the December 22, 2006 decision that EPA had improperly

failed to retain four measures required for l-hour nonattainment areas under the anti-backsliding

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provisions ofthe regulations: (l) nonattainment area new source review (NSR) requirements

based on an area's I-hour nonattainment classification; (2) section 185 penalty fees for l-hour

severe or extreme nonattainment areas that fail to attain the l-hour standard by the l-hour

attainment date; and (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9)

ofthe Act, on the contingency of an area not making reasonable further progress toward

attainment ofthe l-hour NAAQS or for failure to attain that NAAQS; and (4) the court clarified

that the Court's reference to conformity requirements was limited to requiring the continued use

of I-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour

conformity determinations.

EPA published a second rule governing implementation ofthe 1997 8-hour ozone

standard (Phase 2 Rule) on November 29,2005 (70 FR 71612), as revised on June 8, 2007 (72

FR 31727). The Phase 2 Rule addresses, among other things, the Clean Data Policy as codified

in 40 CFR 51.918. The D.C. Circuit upheld the Clean Data Policy, agreeing with the Tenth

Circuit that EPA's interpretation ofthe Act was reasonable. NRDC v. EPA, 571 F.3d 1245

(D.C. Cir. 2009). See Sierra Club v. EPA, 99 F.3d 1551 (lOth Cir. 1996).

B. Summary of EPA's Analysis ofthe Impact of the Court Decisions on the BPA

Area

1. Requirements under the Eight-Hour Ozone Standard

For the eight-hour ozone standard, the BPA ozone nonattainment area was originally

classified as marginal nonattainment under subpart 2 ofthe CAA. The June 8, 2007, opinion

clarifies that the Court did not vacate the Phase 1 Rule's provisions with respect to classifications

for areas under subpart 2. The Court's decision, therefore, upholds EPA's classifications for

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those areas classified under subpart 2 for the eight-hour ozone standard, and all eight-hour ozone

requirements for these areas remain in place.

2. Requirements under the One-Hour Ozone Standard

In its June 8, 2007, decision, the Court limited its vacatur so as to uphold those provisions

of EPA's anti-backsliding requirements that were not successfully challenged. Therefore, an area

must meet the anti-backsliding requirements, see 40 CFR 51.900, et seq.; 70 FR 30592,30604

(May 26, 2005), which apply by virtue ofthe area's classification for the one-hour ozone

NAAQS.

The provisions in 40 CFR 51.905(a)-(c) explain the applicable l-hour ozone antibacksliding requirements that remain in effect. Areas must continue to meet those requirements

to be redesignated. However, the court vacated the portions of51.905(e) that removed the

obligations to meet the additional provisions noted above and as a result, states also have had to

continue to meet these additional requirements. We address below how the l-hour antibacksliding obligations (as interpreted and directed by the court) are met in the context of a

redesignation action for the 1997' 8-hour NAAQS.

The BPA l-hour nonattainment area was reclassified as serious for that standard on June

15,2004, so the l-hour ozone standard requirements applicable to the area are those that apply to

nonattainment areas classified as serious. Pursuant to 40 CFR 51.905(a)-(c) and the court

opinions, the applicable serious area requirements include a demonstration that the area meets

serious area Reasonably Available Control Technology (RACT) for both VOC and NOx, a

revised 1990 base year emissions inventory, a Post-1996 Rate of Progress (ROP) Plan with

Contingency Measures and MVEB, a replacement, i.e., a backfill, for the failure-to-attain

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contingency measures triggered by the reclassification (this is equivalent to the requirement to

meet the serious area contingency measure requirement), an enhanced monitoring program, a

clean-fuel vehicle program or an acceptable substitute, an attainment demonstration with a

reasonably available control measures (RACM) demonstration, revised transportation conformity

budgets, and serious area NSR. The State has submitted each ofthe required I-hour serious area

plan requirements. EPA has approvedeach ofthe l-hour serious area requirements except for

the following: the attainment demonstration and RACM analysis, the CFV program or

acceptable substitute, the ROP plan's contingency measures, the backfill failure-to-attain

contingency measures, and the serious NSR requirements. The obligations to have an approved

l-hour ROP plan's contingency measures, backfill failure-to-attain contingency measures, and

attainment demonstration with a RACM demonstration would be suspended by a determination

of attainment ofthe I-hour ozone standard, and will cease to apply upon redesignation ofthe area

for the 8-hour standard. The l-hour anti-backsliding serious Nonattainment New Source Review

(NNSR) will also cease to apply upon redesignation for the 1997 8-hour ozone standard, and will

be replaced by prevention (Ifsignificant deterioration (PSD) SIP.

EPA is proposing to approve the following outstanding l-hour ozone applicable

requirement: the Texas CFV Program Equivalency Demonstration. EPA also is proposing to

approve the Post -1996 ROP plan's contingency measures and the State's backfill failure-toattain contingency measures. EPA has taken no action on the submitted attainment

demonstration with the RACM analysis and serious I-hour ozone NSR requirements. In lieu of

nonattainment NSR, the BPA area will become subject to PSD upon redesignation.

For the BPA l-hour ozone serious nonattainment area, EPA previously approved VOC

19
and NOx rules into the Texas SIP, found they met RACT, and found that the BPA area meets the

serious area VOC and NOx RACT requirements. EPA also previously approved the revised 1990

base year emissions inventory, the post-l 996 ROP plan and MVEB, and the enhanced

monitoring program. In this rulemaking, EPA is proposing to approve the State's CFV

Equivalence Demonstration as meeting the outstanding l-hour ozone anti-backsliding serious

area requirement for the area. We also are proposing to approve the post-I 996 ROP plan's

contingency measures and the backfill failure-to-attain contingency measures. The obligation to

submit a I-hour serious area attainment demonstration and RACM analysis and contingency

measures will be suspended ifEPA's proposal to determine that the area has attained the l-hour

standard is finalized, and the area will be relieved ofthese obligations upon final redesignation

for the 1997 8-hour ozone standard.

IV. What are the CAA Criteria for Redesignation?

The Act sets forth the requirements for redesignating a nonattainment area to attainment.

Specifically, CAA 'section I07(d)(3)(E) allows for redesignation providing·that (1) the

Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator

has fully approved the applicable implementation plan for the area under CAA section 11O(k);

(3) the Administrator determines that the improvement in air quality is due to permanent and

enforceable reductions in emissions resulting from implementation ofthe applicable SIP and

applicable Federal air pollutant control regulations and other permanent and enforceable

reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting

the requirements ofCAA section l75A; and (5) the State containing such area has met all

20
requirements applicable to the area under CAA section 110 and part D.

EPA provided guidance on redesignation in the General Preamble for the Implementation

of Title I ofthe CAA Amendments of 1990, on April 16, 1992 (57 FR 13498), and supplemented

this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on

processing redesignation requests in the following documents:

1. "Ozone and Carbon Monoxide Design Value Calculations," Memorandum from Bill

Laxton, June 18, 1990.

2. "Maintenance Plans for Redesignation of Ozone and Carbon Monoxide

Nonattainment Areas," Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide

Programs Branch, April 30, 1992;

3. "Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,"

Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1,

1992;

4. "Procedures for Processing Requests to Redesignate Areas to Attainment",

Memorandum from John Calcagni, Director, Air Quality Management Division, September 4,

1992;

5. "State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act

(ACT) Deadlines," Memorandum from John Calcagni, Director, Air Quality Management

Division, October 28, 1992;

6. "Technical Support Documents (TSD's) for Redesignation of Ozone and Carbon

Monoxide (CO) Nonattainment Areas", Memorandum from G.T. Helms, Chief, Ozone/Carbon

Monoxide Programs Branch, August 17, 1993;

21
7. "State Implementation Plan (SIP) Requirements for Areas Submitting Requests for

Redesignation to Attainment ofthe Ozone and Carbon Monoxide (CO) National Ambient Air

Quality Standards (NAAQS) On or After November 15, 1992", Memorandum from Michael

Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993;

8. "Use ofActual Emissions in Maintenance Demonstrations for Ozone and CO

Nonattainment Areas," Memorandum from D. Kent Berry, Acting Director, Air Quality

Management Division, November 30, 1993;

9. "Part D New Source Review (Part D NSR) Requirements for Areas Requesting

Redesignation to Attainment," Memorandum from Mary D. Nichols, Assistant Administrator for

Air and Radiation, October 14, 1994; and

10. "Reasonable Further Progress, Attainment Demonstration, and Related Requirements

for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,"

Memorandum from John S. Seitz, Director, Office ofAir Quality Planning and Standards, May

10, 1995.

v. What is EPA's Proposed Determination Regarding Attainment for the 1997 8-hour

and the I-hour ozone NAAQS for the BPA Area?

A. Is the BPA Area Attaining the 1997 8-hour ozone NAAQS?

For ozone, an area may be considered to be attaining the 1997 8-hour ozone NAAQS if

there are no violations, as determined in accordance with 40 CFR 50.10 and Appendix I of part

50, based on three complete, consecutive calendar years of quality-assured air quality monitoring

data. This standard is attained ifthe 3-year average ofthe annual fourth highest daily maximum

22
8-hour average ambient ozone concentration at each monitor in the area that is eligible for

comparison to the NAAQS is less than or equal to 0.08 ppm. Based on the rounding convention

described in 40 CFR part 50, Appendix I, the 1997 8-hour ozone standard is attained at a monitor

ifthe design value is 0.084 ppm or below. The data must be collected and quality-assured in

accordance with 40 CFR part 58, and recorded in the EPA Air Quality System (AQS). The

monitors generally should have remained at the same location for the duration ofthe monitoring

period required for demonstrating attainment. For ease of communication, many reports of

ozone concentrations are given in parts per billion (Ppb); ppb = ppm x 1,000. Thus, 0.084 ppm

equals 84 ppb.

EPA reviewed BPA area ozone monitoring data from ambient ozone monitoring stations

for the ozone seasons 2005 through 2007, as well as data for the ozone seasons 2006 through

2008 and data for 2009 in AQS but not yet certified. The 2005 - 2007 ozone season data was

relied upon by Texas in its submittal. Since the State's submittal, the 2006 - 2008 ozone season

data has been quality assured and recorded in AQS. The design value for 2005 - 2007 is 0.083

ppm; the design value for 2006 - 2008 is 0.081 ppm. The preliminary design value for the

additional year of 2009, i.e., the 2007 - 2009 ozone seasons, is 0.077 ppm. The data for all three

sets of ozone seasons show that the BPA area is attaining the 1997 8-hour ozone NAAQS.

Table 1 provides the design values based on data from the nine monitors in the BPA area.

Each ofthe nine monitoring sites in the BPA area monitored attainment with the 1997 8-hour

ozone standard for the 2005-2007 ozone seasons and for the 2006 - 2008 ozone seasons. (To find

the overall design value for the area for a given year, simply find the highest design value from

any ofthe nine monitors for that year.) The location of each monitoring site in the BPA area is

23
shown on the map entitled, "BPA ozone and ozone precursor monitoring network" included in

the docket associated with this action.

Table 1

BPAArea

Fourth Highest 8-hour Ozone Concentrations and Design Values

Data for All Monitors (ppm) 1,2,3,4

4th Highest Daily Max Design Values

BPA Monitor Site Three Year Averages

2005 2006 2007 2008 2009 2005- 2006- 2007-

2007 2008 2009

Lamar 0.081 0.085 0.080 0.072 0.071 0.082 0.079 0.074

(48-245-0009)

Port Arthur 0.079 0.085 0.073 0.071 0.073 0.079 0.076 0.072

(48-245-0011)

Sabine Pass 0.082 0.084 0.078 0.069 0.073 0.081 0.077 0.073

(48-245-0101)

Hamshire 0.080 0.081 0.077 0.070 0.070 0.079 0.076 0.072

(48-245-0022)

West Orange 0.078 0.078 0.073 0.064 0.073 0.076 0.071 0.070

(48-361-1001)

Mauriceville 0.076 . 0.071 0.075 0.069 0.067 0.074 0.071 0.070

(48-361-1100)

Jefferson Co. Airport 0.083 0.084 0.082 0.078 0.071 0.083 0.081 0.077

(48-245-0018)

SETRPC Port Arthur 0.078 0.082 0.076 0.065 0.069 0.078 0.074 0.070

(48-245-0628)

Nederland 0.068 0.082 0.067 0.069 0.072 0.072

(48-245-1035t

1 Unlike for the I-hour ozone standard, design value calculations for the 1997 8-hour

ozone standard are based on a rolling three-year average ofthe annual 4th highest values

(40 CFR Part 50, Appendix I).

2 Monitoring site locations for BPA are shown on a map entitled, "BPA ozone and ozone

precursor monitoring network" included in the docket.

3 Monitoring data for 2009 are in AQS but not yet certified (as ofMarch 26, 20I 0).

4 Monitoring did not begin at the Nederland site until 2006.

24
The fourth high values for 8-hour ozone for 2005 through 2009, and the 3-year average of

these values (i.e., design value), are summarized in Table 2:

Table 2

BPAArea

Fourth Highest 8-hour Ozone Concentrations and Design Values

Data Summary (ppm) 1,2,3

Design Values

BPA Area Overall 4tb Hlzhest Dailv Max Three Year Averaaes

2005 2006 2007 2008 2009 2005- 2006- 2007-

2007 2008 2009

0.083 0.084 0.082 0.078 0.071 0.083 0.081 0.077

1 Unlike for the l-hour ozone standard, design value calculations for the 8-hour ozone

standard are based on a rolling three-year average ofthe annual 4th highest values (40

CFR Part 50, Appendix I).

2 Monitoring data for 2009 are in AQS but not yet certified (as of March 26,2010).

3 The fourth high data in this table is from the Jefferson Co. Airport monitor site (AQS

48-245-0018.

As shown in Table 2, the 8-hour ozonedesign value for 2005-2007, and also for 2006-

2008, which is based on a three-year average ofthe fourth-highest daily maximum average ozone

concentration at the monitor recording the highest concentrations, is below the 1997 8-hour

ozone NAAQS. The design values of 0.083 ppm for 2005-2007 and 0.081 ppm for 2006-2008

demonstrate the area is in attainment ofthe 1997 8-hour ozone NAAQS. Data through 2008

have been quality assured, as recorded in AQS. Data for 2009 not yet certified also indicate that

the area continues to attain the 1997 8-hour NAAQS. The preliminary design value for the BPA

area for 2007-2009 is 0.077 ppm. In summary, monitoring data for BPA for the three years 2005

25
through 2007, as well as monitoring data for the three years 2006 through 2008 and preliminary

monitoring data for 2009, show continued attainment ofthe 1997 8-hour ozone standard.

Preliminary data for BPA for 2009 is included in the docket.

In addition, as discussed below with respect to the maintenance plan, Texas has

committed to continue monitoring in this area in accordance with 40 CFR part 58. Insummary,

EPA is proposing to determine that complete, quality- assured data for the 2005-2007 and

2006-2008 ozone seasons show thatthe BPA 8-hour ozone nonattainment area has attained the

1997 8-hour ozone NAAQS and data for 2009 in AQS but not yet certified show that the area

continues to attain the standard.

Should the area violate the 1997 8-hour ozone standard before the proposed redesignation

is finalized, EPA will not proceed with final redesignation.

B. Is the BPA Area Attaining the J-hour Ozone NAAQS?

EPA is also proposing to determine that the BPA I-hour ozone nonattainment area is

currently attaining the l-hour ozone NAAQS. This determination is based upon three years of

complete, quality-assured and state- certified ambient air monitoring data that show the area has

monitored attainment ofthe l-hour ozone NAAQS for the 2006-2008 monitoring period. Data

for 2009 in AQS but not yet certified indicate that that the area continues in attainment for the 1-

hour standard.

In 1979, EPA promulgated the revised l-hour ozone standard of 0.12 parts per million

(ppm) (44 FR 8202, February 8, 1979). For ease of communication, many reports of ozone

concentrations are given in parts per billion (Ppb); ppb = ppm x 1000. Thus, 0.12 ppm becomes

120 ppb or 124 ppb when rounding is considered.

26
An area exceeds the l-hour ozone standard each time an ambient air quality monitor

records a I-hour average ozone concentration above 0.12 ppm in any given day. Only the highest

l-hour ozone concentration at the monitor during any 24-hour day is considered when

. determining the number of exceedance days at the monitor. An area violates the ozone standard

if, over a consecutive 3-year period, more than 3 expected exceedances occur at the same

monitor. For more information, please see "National I-hour primary and secondary ambient air

quality standards for ozone" (40 CFR 50.9) and "Interpretation ofthe l-Hour Primary and

Secondary National Ambient Air Quality Standards for Ozone" (40 CFR 50, Appendix H).

The fourth-highest daily ozone concentration over 3-year period is called the design value

(DV). The DV indicates the severity ofthe ozone problem in an area; it is the ozone level around

which a state designs its control strategy for attaining the ozone standard. A monitor's DV is the

fourth highest ambient concentration recorded at that monitor over the previous 3 years. An

area's DV is the highest ofthe design values from the area's monitors.

The Act, as amended in 1990, required EPA to designate as nonattainment any area that

was violating the I-hour ozone standard, generally based on air quality monitoring data from the

1987 through 1989 period (section 107(d)(4) ofthe Act; 56 FR 56694, November 6, 1991).

EPA is proposing to determine that the BPA l-hour ozone nonattainment area is currently

in attainment ofthe I-hour standard based on the most recent 3 years of quality-assured air

quality data. Certified ambient air monitoring data show that the area has monitored attainment

ofthe l-hour ozone NAAQS for the 2005-2007 as well as the 2006-2008 monitoring period.

Also, data in AQS but not yet certified for 2009 show that the BPA area has monitored no

exceedances in that year and continues to meet the l-hour ozone standard. Table 3 contains the

27
l-hour ozone data for the BPA I-hour ozone nonattainment area monitors that show that the area

is currently attaining the l-hour ozone NAAQS , consistent with 40 CFR 50, Appendix H.

Table 3

Beaumont-Port Arthur Area

l-hour Ozone Data 1,2

Design

Number ofExceedances 3-year Exceedances Values

BPA (ppb)

Monitor

Site 2005 2006 2007 2008 2009 2005- 2006- 2007- 2005- 2006- 2007-

2007 2008 2009 2007 2008 2009

Lamar 0 0 0 0 0 0 0 0 106 106 98

(48-245-0009)

Port Arthur 0 0 0 0 0 0 0 0 104 101 93

(48-245-0011)

Sabine Pass 1.2 0 0 0 0 0.4 0 0 107 102 96

(48-245-0101i

Hamshire 0 0 0 0 0 0 0 0 97 97 95

(48-245-0022)

West Orange 0 0 0 0 0 0 0 0 99 100 100

(48-361-1001)

Mauriceville 0 0 0 0 0 0 0 0 96 96 87

(48-361-1100)

Jefferson Co. 0 0 0 0 0 0 0 0 104 102 99

Airport

(48-245-0018)

SETRPC Port 0 0 0 0 0 0 0 0 98 98 95

Arthur

(48-245-0628)

Nederland --- 0 0 0 0 --- 0 0 --- 93 93

I (48-245-1035)

1 Monitoring data for 2009.are in AQS but not yet certified (as ofMarch 26,2010).

2 For the Sabine Pass site in 2005 the actual number of exceedances was 1 and the

estimated number of exceedances was 1.2.

EPA proposes to find that the BPA I-hour ozone nonattainment area has attained the 1-

28
hour ozone standard.

VI. Doesthe BPA Area Have a Fully Approved SIP under section llO(k) for the Section

110 and Part D Requirements of the CAA Applicable for Purposes of Redesignation?

As discussed above in Section III, in evaluating a request for redesignation, EPA's longheld position is that those requirements expressly linked by statutory language with the

attainment and reasonable further progress requirements do not apply ifEPA determines that the

area is attaining the standard. Additionally, it is EPA's interpretation ofCAA section

107(d)(3)(E) that applicable requirements ofthe Act that come due subsequent to the area's

submittal of a complete redesignation request remain applicable until a redesignation is

approved, but are not required as a prerequisite to redesignation. Under this interpretation, to

qualify for redesignation, states requesting redesignation to attainment must meet only the

relevant requirements ofthe Act that come due prior to the submittal of a complete redesignation

request. See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424,25427

(May 12, 2003) (redesignation of St. Louis, Missouri); September 4, 1992 Calcagni

memorandum; September 17, 1993 Michael Shapiro memorandum, and 60 FR 12459, 12465-66

(March 7, 1995) (redesignation ofDetroit-Ann Arbor, MI).

Therefore, the applicable 1997 8-hour ozone standard requirements for the BPA area are

those for a marginal, not a moderate nonattainment area. The State submitted a complete

redesignation request for BPA on December 16, 2008, prior to the January 1, 2009 deadline for

the submittal ofthe area's moderate area SIP requirements. Furthermore, since EPA is proposing

to determine that the area has attained the 1997 8-hour ozone standard, under the principles

29
enunciated in the General Preamble and pursuant to 40 CFR 51.918, ifthat determination is

finalized, then the obligations to submit requirements related to attainment and RFP are not

applicable for purposes ofredesignation.

The requirements to submit for a moderate area, certain planning SIPs related to

attainment, including attainment demonstration requirements [the reasonably available control

measures (RACM) requirement ofsection 172(c)( 1) ofthe Act, the reasonable further progress

(RFP) and attainment demonstration requirements ofsections 172(c)(2) and (6) and 182(b)(1) of

the Act, and the requirement for contingency measures ofsection 172(c)(9) ofthe Act] would not

be applicable to the area as long as it continues to attain the 1997 8-hour ozone NAAQS and

would cease to apply upon redesignation to attainment.

In addition, in the context ofredesignations, EPA has interpreted requirements related to

attainment as not applicable for purposes ofredesignation. For example, in the General

Preamble EPA stated that:

[T]he section 172(c)(9) requirements are directed at ensuring RFP and attainment

by the applicable date. These requirements no longer apply when an area has

attained the standard and is eligible for redesignation. Furthermore, section l75A

for maintenance plans...provides specific requirements for contingency measures

that effectively supersede the requirements ofsection 172(c)(9) for these areas.

[General Preamble for the Interpretation of Title I ofthe Clean Air Act

Amendments of 1990," (General Preamble) 57 FR 13498, 13564 (April 16, 1992)]

See also Calcagni memorandum dated Sept 4, 1992 ("The requirements for reasonable further

progress and other measures needed for attainment will not apply for redesignations because they

30
only have meaning for areas not attaining the standard." From the memorandum, section 4.b.i.).

Today, EPA is also proposing to approve the 2002 base year emissions inventory as

meeting the marginal area applicable requirements of part D. In addition, EPA is proposing to

approve the CFV program Equivalency Demonstration as meeting the only outstanding l-hour

ozone anti-backsliding obligation for purposes ofredesignation. Furthermore, EPA is proposing

to find that upon final approval ofthese two measures, the BPA area will have a fully approved

SIP under CAA section 110(k) for redesignation purposes and it will meet all CAA section 110

and part D applicable requirements for purposes ofredesignation for the 1997 8-hour ozone

standard.

A. What are the General SIP Requirements Applicable for Purposes of

Redesignation for the BPA Area?

EPA's long-held interpretation ofthe Act is that section 110 general SIP elements not

linked to an area's nonattainment status and classification are not applicable for purposes of

redesignation. Section 110(a)(2) oftitle I ofthe Act delineates the general requirements for a

SIP, which include enforceable emissions limitations and other control measures, means, or

techniques, provisions for the establishment and operation of appropriate devices necessary to

collect data on ambient air quality, and programs to enforce the limitations.

For example, CAA section 110(a)(2)(d) requires that SIPs contain certain measures to

prevent sources in a state from significantly contributing to air quality problems in another state.

To implement this provision, EPA has required certain states, but not Texas, to establish

programs to address the transport of air pollutants (NOx SIP Call). Texas submitted a SIP

revision to address interstate transport on May 1,2008. The purpose ofthat SIP revision was to

31
document that emissions from Texas' sources that may contribute to nonattainment in another

state have been mitigated through existing control strategies. However, CAA section

llO(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's

designation and classification in that state. EPA believes that the requirements linked with a

particular nonattainment area's designation and classification are the relevant measures to

evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where

applicable, continue to apply to a state regardless ofthe designation of anyone particular area in

the state. Thus, we do not believe that these requirements should be construed to be applicable

requirements for purposes ofredesignation.

Further, EPA believes that the other CAA section 110 elements not connected with

nonattainment plan submissions and not linked with an area's attainment status are not applicable

requirements for purposes ofredesignation. The State will still be subject to these requirements

after the area is redesignated. The section 110 and part D requirements, which are linked with a

particular area's designation and classification, are the relevant measures to evaluate in reviewing

a redesignation request.

We have reviewed Texas's SIP and have concluded that it meets the general SIP

requirements under section 110 ofthe CAA to the extent they are applicable for purposes of

redesignation. EPA has previously approved provisions ofthe Texas SIP addressing section 110

elements under the l-hour ozone standard (40 CFR 52.2270 - .2280). Further, in a certified letter

dated April 4, 2008 (a copy ofthis letter and the enclosure to the letter are available in the

docket), as well as in a SIP revision submitted May 1,2008, Texas confirmed that the State

continues to meet the section 110 requirements for the 8-hour ozone standard. EPA has not yet

32
taken rulemaking action on these submittals; however, such approval is not necessary for

redesignation.

B. What are the Part D Requirements Applicable for Purposes of Redesignation

for the BPA Area?

EPA has reviewed the Texas SIP for the BPA area with respect to SIP requirements

applicable for purposes ofredesignation under part D ofthe Act for both the l-hour ozone

NAAQS and the 1997 8-hour ozone NAAQS. EPA believes that the Texas SIP for the BPA area

contains approved SIP measures that meet the part D requirements applicable for purposes of

redesignation, with the exception ofthe requirements for an approved emissions inventory and

the CFV program Equivalency Demonstration, which we are proposing to approve in this

rulemaking. Upon final approval ofthese requirements, the BPA area will meet all ofthe

requirements applicable to the area for purposes ofredesignation under part D ofthe Act.

The l-hour and 1997 8-hour ozone applicable requirements are discussed in detail below.

1. What are the Part D Requirements Applicable for Purposes of

Redesignation for the BPA Area under the L-hour Ozone Standard?

The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe one-hour ozone

NAAQS requirements that continue to apply after revocation ofthe one-hour ozone NAAQS for

former one-hour ozone nonattainment areas. Section 51.905(a)(1) provides that:

The area remains subject to the obligations to adopt and implement the applicable

requirements defined in section 51.900(t), except as provided in paragraph

(a)(1)(iii) ofthis section and except as provided in paragraph (b) ofthis section.

Section 51.900(t), as amended by 70 FR 30592, 30604 (May 26, 2005), provides that:

33
Applicable requirements means that for an area that the following requirements, to the extent

such requirements applied to the area for the area's classification under section 181(a)(1) ofthe

CAAfor the one-hour NAAQS at the time ofdesignation for the eight-hour NAAQS, remain in

effect:

(1) Reasonably available control technology (RACT).

(2) Inspection and maintenance programs (11M).

(3) Major source applicability cut-offs for purposes of RACT.

(4) Rate of Progress (ROP) reductions.

(5) Stage II vapor recovery.

(6) Clean-fuel vehicle program under section 182(c)(4) ofthe CAA.

(7) Clean fuels for boilers under section 182(e)(3) ofthe CAA.

(8) Transportation Control Measures (TCMs) during heavy traffic hours as

provided under section 182(e)(4) ofthe CAA.

(9) Enhanced (ambient) monitoring under section 182(c)(1) ofthe CAA.

(10) TCMs under section 182(c)(5) of-the CAA.

(11) Vehicle Miles Travelled (VMT) provisions ofsection 182(d)(1) ofthe CAA.

(12) NOx requirements under section 182(t) ofthe CAA.

(13) Attainment demonstration or alternative as provided under section

51.905(a)(1)(ii).

In addition to applicable requirements listed under section 51.900(t), the State must also

comply with the additional l-hour anti-backsliding requirements discussed in the Court's

decisions in South Coast Air Quality Management Dist. v. EPA: (1) NSR requirements based on

34
the area's l-hour ozone nonattainment classification; (2) section 185 source penalty fees; (3)

contingency measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) ofthe CAA

for areas not making reasonable further progress toward attainment ofthe one-hour ozone

NAAQS, or for failure to attain the NAAQS; and, (4) transportation conformity requirements for

certain types of Federal actions.

Pursuant to 40 CFR 51.905(c), the area is subject to the obligations set forth in 51.905(a)

and 51.900(f). The following addresses the one-hour ozone SIP requirements applicable to the

BPA area pursuant to these anti-backsliding requirements and those discussed in the Court's

decision in South Coast Air Quality Management Dist. v. EPA.

Prior to the revocation ofthe one-hour ozone standard on June 15, 2005, the BPA area

was classified as a serious nonattainment area for the one-hour ozone standard with a compliance

date ofNovember 15, 2007. In reviewing the State ofTexas' 1997 8-hour ozone redesignation

request for the BPA area, we assessed whether the area satisfied the CAA anti-backsliding

requirements under the one-hour ozone standard. We conclude that the BPA area and the State

ofTexas have satisfied all anti-backsliding CAl\. requirements applicable to a serious one-hour

ozone nonattainment area for purposes ofredesignation, except for the CFV program or an

acceptable substitute under section 183(c)(4) ofthe CAA. See 40 CFR 51.905 (6). Today, we

are proposing to approve the State's equivalency CFV demonstration. See below.

The following discusses how the applicable CAA requirements have been met in the

BPA area. Note that the State commits to continue to comply with these requirements unless

revised through SIP revisions approved by the EPA.

35
40 CFR 51.905 (1) and (3). RACT and Major source applicability cut-offsfor purposes of

RACT EPA found that the BPA area met the serious area VOC and NOx RACT requirements

for the l-hour standard on July 10,2009 (74 FR 33146). This action also approved Texas's

changes to the batch process rules and the shipbuilding and ship repair rules that lower the

threshold for affected sources of VOC emissions to the serious area requirements of 50 tons per

year (tpy). This July 10, 2009 approval action satisfies the l-hour ozone serious RACT

requirements for the BPA area.

40 CFR 51.905 (2). Inspection and maintenance programs (11M). There is no requirement for the

BPA area to have an VM program. The Federal liM Flexibility Amendments of 1995 determined

that urbanized areas with populations less than 200,000 for 1990 (such as BPA) are not mandated

to participate in the VM program (60 FR 48033, September 18, 1995).

40 CFR 51.905 (4). Rate ofprogress reductions. We approved the post-1996 ROP Plan and its

associated MVEB and a revised 1990 base year emissions inventory on February 22,2006 (71

FR 8962) for the BPA serious I-hour ozone nonattainment area. This plan covered the 3-years

periods of 1997-1999,2000-2002, and 20G3-2005, achieving 27 percent reductions no later than

November 15,2005.

40 CFR 51.905 (5) Stage II vapor recovery. EPA approved Texas' Stage II rules and

amendments for the BPA area on April 15, 1994 (59 FR 17940), and as revised on March 29,

2005 (70 FR 15769).

40 CFR 51.905 (7) Cleanfuelsfor boilers under section 182(e)(3) ofthe CAA. This is an

extreme area requirement and therefore does not apply to the BPA serious area.

40 CFR 51.905 (8) Transportation Control Measures (TCMs) during heavy traffic hours as

36
provided under section 182(e)(4) ofthe CAA. This is an extreme area requirement and therefore

does not apply to the BPA serious area.

40 CFR 51.905 (9) Enhanced (ambient) monitoring under section 182(c)(l) ofthe CAA.

EPA approved the Texas SIP revision for enhanced ambient monitoring on October 4, 1994 (59

FR 50504) as meeting section I82(c)(1) ofthe CAA. The monitoring network meets the

requirements in 40 CFR Part 58 and section 182(c)(1) for enhanced monitoring.

40 CFR 51.905 (10) TCMs under section 182(c)(5) ofthe CAA. As required by the Clean Air Act

section 176(c) (42 U.S.C. 7506(c)), the Southeast Texas Regional Planning Commission, the

Metropolitan Planning Organization for the BPA area, demonstrated conformity of area

transportation plans to the motor vehicle emissions budgets established in the BPA Rate-ofProgress SIP approved by EPA on February 22,2006 (71 FR 8962). The Federal Highway

Administration determined on September 25,2007 that the area transportation plans conformed

to the budgets established by the SIP. The current aggregate vehicle mileage, aggregate vehicle

emissions, congestion levels, and other relevant parameters were determined, as part ofthe

conformity analysis, to be consistent with those used for the area's demonstration of progress

towards attainment.

40 CFR 51.905 (11) Vehicle miles traveled (VMT) provisions ofsection 182(d)(1) ofthe CAA.

This is a severe area requirement and therefore does not apply to the BPA serious area.

40 CFR 51.905 (12) NOx requirements under section 182(f) ofthe CAA. These requirements

were satisfied by a previous EPA action approving a Texas SIP revision for NOx controls in the

BPA area on March 3, 2000 (65 FR 11468).

40 CFR 51.905 (13) Attainment demonstration or alternative as provided under section

37
51.905(a)(l)(ii). Texas elected the option to submit an 8-hour ozone attainment demonstration

SIP to demonstrate attainment ofthe 8-hour ozone standard by the area's 8-hour ozone attainment

date with associated MVEBs and an RACM analysis. The SIP was submitted to EPA on

November 16,2004, as revised on October 15,2005. EPA has not acted on it. As discussed

previously, EPA's long-held position is that an attainment demonstration with the RACM

analysis is not an applicable requirement for purposes of evaluating an ozone redesignation

request. (General Preamble, 57 FR 13564). See also 40 CFR 51.918. Upon the effective date of

redesignation, the obligation is terminated. Moreover EPA is proposing to determine that the

area has attained the l-hour ozone standard, and for that reason as well, ifthe determination is

finalized, the area would not be obligated to submit a l-hour attainment demonstration.

South Coast anti-backsliding measures.

NSR. EPA has long held its position that a fully-approved NSR program is not an applicable

requirement for purposes of evaluating an ozone redesignation request. The rationale for this

view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and

Radiation dated October 14, 1994, titled, "Part D New Source Review Requirements for Areas

Requesting Redesignation to Attainment." The State's PSD program becomes effective in the

area immediately upon redesignation to attainment'. Consequently, EPA concludes that an

approved NSR program is not an applicable requirement for purposes ofredesignation. See the

more detailed explanations ofthis issue in the following rulemakings: Detroit, Michigan (60 FR

12467-12468 (March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458,20469-20470, May

7, 1996); Louisville, Kentucky (66 Fr 53665,53669, October 23,2001); Grand Rapids, Michigan

2 If the State believes that a rule change is required, it must adopt and submit it to EPA for approval as a SIP

revision. Upon EPA's approval ofthe SIP revision submittal, PSD applies in the area.

38
(61 FR 31831,31836-31837, June 21,1996).

Section 185 fees. This is a requirement for severe and extreme areas only, and therefore does not

apply to the BPA serious area.

Contingency Measures. Sections 172(c)(9) and 182(c)(9) ofthe CAA require ozone control

plans to contain measures to be implemented in the event that any RFP or attainment milestone

in the ozone control plan is missed. EPA approved the l-hour ozone contingency measures for

the BPA area on February 10, 1998 at 63 FR 6659 as part ofEPA's approval ofthe BPA area's

l-hour ozone 15% VOC ROP Plan. These contingency measures included the Federal Tier I

rules, the Federal small engine VOC rule, and excess reductions from the 15% VOC ROP Plan.

When EPA reclassified the BPA area to serious for the l-hour ozone NAAQS, these are the

contingency measures that EPA triggered. EPA is proposing to approve the post-1996 ROP

plan's associated contingency measures, submitted to EPA on November 16, 2004. The

contingency measures are federal and state measures already being implemented that are in

excess ofthose needed for ROP and are sufficient to provide the needed contingency measure

reductions. For more information, please see Section X. and TSD Part II.E. found-in the

electronic docket.

As noted elsewhere in this proposed rule, it is EPA's position that contingency measures

are not an applicable requirement for purposes of evaluating an ozone redesignation request.

EPA's long-held position is that those requirements expressly linked by statutory language with

the attainment and reasonable further progress do not apply when an area requesting

redesignation is attaining the standard.

For more detail ofthe applicable l-hour ozone requirements and EPA's approval actions,

39
see Part ILA. ofthe TSD, which is included in the electronic docket.

As previously noted, it is EPA's position that further EPA action is required upon one 1-

hour ozone serious area requirement: the CFV program or substitute. A summary ofthe Texas

submittals and EPA's proposed action follows. More detail on the contents ofthe submittals and

EPA's technical analysis may be found in the TSD, Part II.A.

Clean-Fuel Vehicle Program (including Centrally Fueled Fleets Requirements)

(i) What are the Clean-fuel vehicle program requirements?

The 1990 CAA amendments established the clean-fuel vehicle (CFV) program that

requires clean alternative fuels for a "covered fleet" in order to reduce emissions in certain ozone

and carbon monoxide nonattainment areas. A "covered fleet" means a fleet that has ten or more

vehicles that are either centrally fueled or capable of being centrally fueled. For serious ozone

nonattainment areas, States are required to either adopt the CFV program prescribed under CAA

part C oftitle II, or implement a substitute for the program that demonstrates equivalent longterm reductions in ozone-producing emissions within 1 year after reclassification (CAA sections

182(c)(4) and 246(a)~3)). CAA section 246 describes the requirements for Centrally Fueled

Fleets (CFF). EPA may adjust the compliance deadlines where compliance with such deadlines

would be infeasible. (CAA section 246(a)(3)). Currently, the federal CFF program requires 70%

of new light duty vehicles and trucks and 50% of new heavy-duty vehicles in a covered fleet to

meet certain prescribed exhaust emission standards for light duty vehicles, light duty trucks and

heavy-duty vehicles. (CAA section 246(b)(3). EPA has determined that, beginning with the 2006

model years, both the Tier II conventional vehicle and engine standards and heavy-duty vehicle

and engine standards are either equivalent to or more stringent than the applicable CFV program

40
Low Emission Vehicle (LEV) standards. See EPA Dear Manufacturer Letter CCD-05-12

(LDVILDTIMDPVIHDV/HDEILD-AFC) (July 21,2005).

(ii) What are the CFV program requirements for the BPA area?

The March 30, 2004, reclassification ofthe area to serious nonattainment was effective

April 29, 2004, and required that a CFV program or substitute that would achieve equivalent

reductions be submitted to EPA by April 29, 2005.

(iii) How did the State Meet the CFV Requirements for BPA?

The State addresses this CFV program requirement by making an equivalency

demonstration showing that the Federal Tier II and heavy-duty vehicle and engine standards are

more stringent than or equivalent to the CFV program LEV standards, beginning with the 2006

model year. Texas used the 2006 model year in the equivalency demonstration because it is the

earliest full vehicle model year that would have been affected by a CFV program upon adoption

of a program by April 29, 2005 (i.e., the 2006 model year would begin on September 1,2005).

The demonstration showed that the resulting emissions reductions from Tier II and the heavyduty vehicle and· engine standards meet or exceed the emissions reductions that a CFV program

would provide in the BPA nonattainment area and, therefore, the implementation ofthe Tier II

and heavy-duty standards serve as an adequate substitute for a CFV program.

Specifically, relying upon EPA's data, beginning with the 2006 model year, Texas shows

Tier 2 Light-Duty Vehicles (LDVs), Light-Duty Trucks (LDTs 1-4), and Medium Duty Passenger

Vehicles (MDPVs) certified to certain Tier 2 bin standards, to be equivalent to or more stringent

than the CFV program LEV emission standards. In addition, Texas demonstrates that Tier 2

LDVs, LDTs 1-4, and MDPVs certified to other Tier 2 bin standards, are equivalent to or more

41
stringent than the CFV program LEV emission standards. Texas performs a similar analysis,

showing that standards for 2006 and later model years for Otto cycle and diesel heavy-duty

vehicles ranging from 8501-14,000 Gross Vehicle Weight Rating are more stringent than the

CFV program LEV emissions standards for these vehicles.

(iv) What is EPA proposing?

EPA is proposing to approve, under section 182(c)(4)(B) ofthe CAA, Texas' equivalency

demonstration that emissions reductions under Tier II and the heavy-duty engine and vehicle

standards achieve equivalent or greater emissions reductions than would be expected from

implementation ofthe CFV Program in the BPA nonattainment area. This approval is supported

by the determination made by EPA that the use ofthe 2006 model year as the first model year

vehicles that would be covered by a CFV program in the equivalency demonstration is

appropriate. Thus, new vehicles purchased by fleet operators for Model Years 2006 and beyond

would necessarily achieve, as required by the Tier II and heavy-duty engine standards, as much or

more reductions than ifthe State adopted a CFV program as required by the Act.

The reclassification required the program to be submitted by April 29, 2005. EPA has

determined that starting the program on April 29, 2005 is infeasible under CAA section 246(a)(3)

which allows EPA to adjust the implementation date of a CFV program where implementation

would otherwise be infeasible. EPA has decided that implementation of a CFV program in the

BPA nonattainment area would be infeasible for the following reasons. As earlier explained, as

ofJuly 2005, EPA had determined that beginning with the 2006 model year the Tier II and

heavy-duty engine and vehicle standards were either equivalent or more stringent than the CFV

program LEV standards. Thus, Texas would have been required to implement the CFV program

42
for approximately 4 months (i.e., from April 29, 2005, when the program was due under the

reclassification, to August 31, 2005 when the 2006 model year began). For model years 2006

and beyond, the program would have been unnecessary. EPA believes that it would have been

infeasible for Texas to initiate and oversee the elaborate record-keeping and reporting

requirements associated with this program for this 4-month period only. Additionally, we note

that owners and operators of covered fleet would likely not have been inclined to comply with

the requirements of a program with such limited duration. Please see the TSD: Part ILA. for

further discussion ofthis requirement.

As noted above, with the exception ofthe CFV program, the BPA area currently has an

approved SIP for all the l-hour ozone anti-backsliding requirements applicable for purposes of

redesignation. EPA is proposing to find that, ifit finalizes approval ofthe CFV program

Equivalency Demonstration, the BPA area will meet all l-hour ozone anti-backsliding

requirements applicable to the area for purposes ofredesignation under section 110 and part D.

2. What are the Part D Requirements Applicable for Purposes of

Redesigaation for the BPA Area under the 1997 8-hour Ozone Standard?

Part D, subpart 2 applicable SIP requirements. For the reasons set forth above, no moderate

area requirements applicable for purposes ofredesignation for the 1997 8-hour ozone standard

under part: D, section 182(b) became due prior to the submission ofthe complete redesignation

request, and therefore none are applicable to the Area for purposes ofredesignation. If EPA

finalizes its proposed approval ofthe area's emissions inventory under section 182(a)(l), the area

will have met all the requirements applicable under its prior marginal classification for purposes

ofredesignation.

43
In addition to the fact that no moderate area part D requirements applicable for purposes

ofredesignation became due prior to submission ofthe redesignation request and therefore are

not applicable, EPA believes it is reasonable to interpret the conformity and NSR requirements as

not requiring approval prior to redesignation.

Section 176 Conformity Requirements. Section 176(c) ofthe CAA requires states to establish

criteria and procedures to ensure that Federally supported or funded projects conform to the air

quality planning goals in the applicable SIP. The requirement to determine conformity applies to

transportation plans, programs and projects developed, funded or approved under title 23 ofthe

United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to

.all other Federally supported or funded projects (general conformity). State conformity revisions

must be consistent with Federal conformity regulations relating to consultation, enforcement and

enforceability that the CAA required the EPA to promulgate.

EPA believes it is reasonable to interpret the conformity SIP requirements as not applying

for purposes of evaluating the redesignation request under section 107(d) because state

conformity rules are still required after redesignation and Federal conformity rules apply where

state rules have not been approved. See, Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding

this interpretation). See also, 60 FR 62748 (December 7, 1995, Tampa, Florida).

NSR Requirements. EPA has also determined that areas being redesignated need not

comply with the requirement that a NSR program be approved prior to redesignation, provided

that the area demonstrates maintenance ofthe standard without a part D NSR program in effect,

since PSD requirements will apply after redesignation. The rationale for this view is described in

a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated

44
October 14, 1994, entitled "Part D New Source Review (Part D NSR) Requirements for Areas

Requesting Redesignation to Attainment." Texas has demonstrated that BPA will be able to

maintain the standard without a part D NSR program in effect, and therefore, Texas need not

have a fully approved part D NSR program prior to approval ofthe redesignation request.

Texas'sPSD program will become effective in BPA upon redesignation to attainment (unless a

rule change is necessary; see footnote 2). See, rulemakings for Detroit, Michigan (60 FR 12467-

12468, March 7, 1995); Cleveland-Akron-Lorrain, Ohio (61 FR 20458,20469-70, May 7, 1996);

Louisville, Kentucky (66 FR 53665, October 23,2001); Grand Rapids, Michigan (61 FR 31834-

31837, June 21, 1996).

Section 182(a)(1) Inventory requirements. The marginal requirements at section 182(a) and 40

CFR 51.915 require that the BPA 8-hour ozone area meet the emissions inventory requirements

ofsection 182(a)(l). An emissions inventory is an estimation of actual emissions of air

pollutants in an area. The emissions inventory consists ofVOC and NOx emissions, as they are

ozone precursors.

The State submitted a base year emissions inventory on December 18, 2008 to EPA as

part ofthe SIP revision for the BPA area. Texas prepared a comprehensive emissions inventory

for the BPA for the baseline year of 2002. The 2002 base year emissions inventory includes all

point, area, nonroad mobile, and on-road mobile source emissions. Table 4 lists the 2002

emissions inventory for the BPA area. EPA reviewed the 2002 base year inventory and

determined that it was developed in accordance with EPA guidelines. For a full discussion of

our evaluation, please refer to Part LB. ofthe TSD, found in the electronic docket.

45
Table 4. BPA Base Year Emission Inventory

2002 Base Year Inventory (Tons/Day)

Source NOx VOC

Type

Point 109.23 43.81

Area 7.54 50.11

On-road 45.84 13.32

Mobile

Non-road 48.99 13.85

Mobile

Total 211.60 121.09

EPA is proposing to approve the 2002 Base Year Emissions Inventory submitted by the

State on December 18, 2008 as part ofthe Texas SIP for the BPA area. With the approval ofthe

2002 base year emissions inventory, it is EPA's position that the BPA area will meet all ofthe

requirements for a marginal nonattainment area under the 1997 8-hour ozone standard.

Listed below are the other marginal area requirements that have, already been met by the

BPA area. For further information, please see Part II.A. ofthe TSD.

Section 182(a)(2)(A) RACT corrections. EPA approved the Texas RAeT correction rules on

March 7, 1995 at 60 FR 12438.

Section 182(a)(2)(B) JIM Program. There is no requirement for the BPA area to have an VM

program. The Federal VM Flexibility Amendments of 1995 determined that urbanized areas with

populations less than 200,000 for 1990 (such as BPA) are not mandated to participate in the VM

program (60 FR 48033, September 18, 1995).

46
Section 182(a)(2)(C) Permit programs and 182(a)(4) General Offset requirement. As noted

previously, EPA has determined that areas being redesignated need not comply with the

requirement that a NSR program be approved prior to redesignation, provided that the area

demonstrates maintenance ofthe standard without a part D NSR program in effect, since PSD

requirements will apply after redesignation.

181(a)(3)(B) Emissions Statements. The emissions statement rules were approved on August 26,

1994 (59 FR 44036).

Thus, EPA proposes to find that the area has an approved SIP for all the 1997 8-hour

ozone requirements applicable for purposes ofredesignation, with the exception ofthe 2002 Base

Year Emissions Inventory. EPA is proposing to find that, upon EPA's final approval ofthe BPA

emissions inventory, the BPA area will meet all requirements applicable to the area for purposes

ofredesignation under section 110 and part D and have a fully approved applicable

implementation plan for the area under section 11O(k).

C. Does the BPA Area have a fully approved applicable SIP under section

110(k) oftbe CAA for purposes ofRedesignation?

With the exceptions noted above for the l-hour ozone CFV program and the 8-hour

emissions inventory, EPA has fully approved the applicable Texas SIP for the BPA area, under

section 110(k) ofthe CAA for all requirements applicable for purposes ofredesignation. EPA

may rely on prior SIP approvals in approving a redesignation request; see Calcagni Memorandum

at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir.

1998); Wall, 265 F.3d 426, plus any additional measures it may approve in conjunction with a

redesignation action. See, 68 FR 25426 (May 12,2003) and citations therein. Following passage

47
ofthe CAA of 1970, Texas adopted and submitted, and EPA fully approved at various times,

provisions addressing the various l-hour ozone standard SIP elements applicable in the BPA area

(e.g., 74 FR 33146, 71 FR 8962,66 FR 26914,63 FR 6659,60 FR 12438).

As indicated above, EPA believes that the section 110 elements not connected with

nonattainment plan submissions and not linked to the area's nonattainment status are not

applicable requirements for purposes ofredesignation. EPA also believes that since the moderate

area part D requirements applicable for purposes ofredesignation did not become due prior to

submission ofthe redesignation request, they also are therefore not applicable requirements for

purposes ofredesignation. As set forth above, with the two exceptions noted, the area has met all

other applicable requirements for purposes ofredesignation under its prior marginal

classification. Once EPA has finalized approvals ofthe l-hour CFV program Equivalency

Demonstrations and the 8-hour base year inventory, the area will have met all applicable

requirements for purposes ofredesignation for the 8-hour ozone standard.

VII. Are the Air Quality Improvements in the BPA Area Due to Permanent and

Enforceable Emissions Reductions?

EPA proposes to find that Texas has demonstrated that the observed ozone air quality

improvement in the BPA area is due to permanent and enforceable reductions in emissions

resulting from implementation ofthe SIP, Federal measures, and other State-adopted measures.

In making this demonstration, the State presented several sets of data. First, the State

provided a 2002 Periodic Emissions Inventory (PEl) for NOx and VOC in the BPA area, and

provided a comparison between the 2002 PEl and the 2005 Base EI. Second, the State analyzed

48
the changes in voe and NOx emissions in the BPA area between the ozone standard violation

year 2002 and one ofthe years in the period during which the area attained the standard, 2005.

Finally, the State documented the voe and NOx emission control measures that have been

implemented in the BPA area over the past 17 years.

A. Emissions Reductions as Shown by Emissions Inventory Data

Texas chose 2005 as the base attainment year, and compared 2002 voe and NOx

emissions when the DV was 90 ppb, to the attainment year emissions, to show that emission

reductions have occurred in the area, and have resulted in the ozone air quality improvement in

the area. 2005 is the first year ofthe first three-year period demonstrating attainment. By 2005,

NOx emissions were estimated to have dropped by almost 30% and voe emissions by 15% from

2002 levels. These significant decreases resulted in the improvement in ozone levels seen at the

monitors.

The emissions for both years were derived from periodic VOC and NOx emission

inventories, which are prepared every three years. Based on the estimated emissions, TCEQ has

documented several emission trends to show that permanent and enforceable emission controls in

various source sectors are responsible for significant downward trends in VOC and NOx emission

totals in the BPA area. For a discussion of emission inventory preparation methods, see the

discussion ofthe preparation ofthe 2005 base year emission inventories below.

To demonstrate that VOC and NOx emissions decreased between one ofthe violation

years (2002) and an attainment year (2005), TCEQ has documented BPA's VOC and NOx

emissions for 2002 and 2005 for all anthropogenic source sectors. Table 5 lists these emissions

for the 2002 PEl and 2005 EI. Due to improved reporting and estimating techniques, flash

49
emissions are better captured in the 2005 inventory. To compare values that are alike, VOC area

source emissions for 2005 in Table 5 do not include flash emissions from upstream oil and gas

production.

Table 5

A Comparison of VOC and NOx Emissions in the BPA Area

by Source Category from the 2002 PEl and the 2005 Base EI

(tons per average ozone season day)

VOC Emissions (tpd)

Emissions

Source 2002 2005

Category

Area 50.11 42.59*

Non-Road 13.85 4.96

Mobile

On-Road 13.32 11.63

Mobile

Point 43.81 42.68

Total 121.09 101.86

*This figure represents the 2005 base inventory for area sources

used in the maintenance plan not including flash emissions from

upstream oil and gas production.

Table 5 (continued)

NOx Emissions (tpd)

Emissions

Source 2002 2005

Cateaory

Area 7.54 9.06

Non-Road 48.99 25.99

Mobile

On-Road 45.84 45.60

Mobile

Point 109.23 68.49

Total 211.60 149.14

50
This comparison of emissions in the BPA area shows that NOx emissions significantly

declined between 2002 and 2005. In addition, VOC emissions in the BPA area also declined

between 2002 and 2005. TCEQ has included this information as part ofits demonstration that

emissions reductions in the BPA area, for both NOx and VOC between 2002 and 2005, explain

the observed improvement in ozone concentrations. Further, the reductions between 2002 and

2005 can be attributed to permanent and enforceable reductions.

The most significant reductions documented in Table 5 were the reductions in Point

Source NOx • In 2000, Texas adopted additional NOx control rules to further reduce NOx

emissions from electric utility power boilers (approximately 50% reduction) and from industrial

boilers and process heaters (approximately 20 percent reduction). These reductions occurred in

two stages, with two-thirds ofthe reductions occurring by May 1,2003, and the remaining onethird by May 1,2005. Federal emission control measures for on and offroad emissions also have

had significant impacts on VOC and NOx emissions in the BPA area.

Based on the 2002 and 2005 nonattainment area emissions information provided by

TCEQ, EPA concludes that VOC and NOx emission totals have significantly declined in the

nonattainment area during the 2002-2005 period. These emission reductions have contributed to

attainment ofthe 1997 eight-hour ozone standard in this area. EPA concurs with Texas'

conclusions that the emission controls, emissions inventories, and emissions trends support the

conclusion that attainment in the area is due to permanent and enforceable emission reductions.

To further demonstrate that permanent and enforceable emission controls have reduced

VOC and NOx emissions, TCEQ also documented the trends in NOx and VOC concentrations in

the BPA area, which is discussed in greater detail below.

51
B. Impact of Emissions Controls Implementation: Trend Analysis

To assess the impact of emission control implementation, TCEQ determined the VOC

and NOx ambient concentration trends at two monitors in the BPA area from 1991 to 2007. This

included determining or projecting the VOC emissions for all seventeen years in this time period.

NOx trends during this period, for both monitors provided by TCEQ in the analysis, Beaumont

(CAMS2) and West Orange (CAMS 9), showed that the 95th percentile of concentrations

decreased at both monitors, and that the average NOx concentration remained relatively flat at

Beaumont (CAMS 2) but has decreased at West Orange (CAMS 9). For VOC trends in the BPA

area, since TCEQ's VOC data was limited, TCEQ included data provided by the SETRPC that

show that average concentrations for both ethylene and propylene have decreased in the BPA

area. The reduction in emissions and the corresponding improvement in ozone air quality over

the assessed period can be attributed to the implementation of a number of emission control

measures identified in the first part ofthis section above.

C. Permanent and Enforceable Emissions Controls Implemented

The following is a discussion ofthe permanent and enforceable emission controls that

have been implemented in the BPA area. In Texas' 8-hour ozone redesignation request, the State

documented all ofthe emission control rules or programs that have impacted VOC or NOx

emissions during the period 1991 - 2007.

1. Reasonably Available Control Techniques

Texas notes that a number ofVOC and NOx RACT rules developed in prior years have

continued to provide additional VOC and NOx emission reductions during the more recent years.

For VOC controls, with the exception ofthe source categories covered by the most recently

52
published CTGs (see a discussion ofthe new CTG RACT source categories below), Texas has

adopted and implemented VOC RACT rules for source categories covered by older (prior to

2006) CTGs and for major non-CTG sources in Hardin, Jefferson and Orange Counties. All

VOC RACT rules are contained in Chapter 115 of volume 30 ofthe Texas Administrative Code

(30 TAC 115)), and all NOx RACT rules are contained in Chapter 117 ofvolume 30 ofthe TAC

(30 TAC 117). All ofthese VOC and NOx RACT rules have been approved by the EPA as

revisions ofthe Texas SIP.

2. ROP Plans and Attainment Demonstration Plan

TCEQ states that the BPA are has met all ofthe one-hour ozone SIP obligations,

including implementation ofthe VOC and NOx emission control programs and rules needed to

comply with Texas' one-hour ozone attainment demonstration for the BPA area and

implementation of all emission control measures contained in the various ROP plans applicable

to Hardin, Jefferson and Orange Counties. EPA approved the 15% ROP Plan on February10,

1998 (63 FR 6659). EPA approved the Post-1996 VOC and NOx ROP Plan on February 22,

2006 (71 FR 8962). The Post-1996 ROP Plan provided 27 percent reductions.

3. NOx Control Rules

TCEQ developed NOx emission control rules for electric industrial boilers, industrial

boilers and process heaters, gas turbines, rich-burn stationary gas-fired internal combustion

engines, nitric acid plants, and adipic acid plants in compliance with the CAA. These rules were

adopted in 1993. Emission reductions resulted from these rules beginning in 1999.

TCEQ also adopted VOC rules for batch process and industrial wastewater sources and

NOx rules for lean-burn engines. These rules were adopted in 1999, with emissions reductions

53
resulting from these rules beginning in 200 I .

In 2000, Texas adopted additional NOx control rules to further reduce NOx emissions

from electric utility power boilers (approximately 50% reduction) and from industrial boilers and

process heaters (approximately 20 percent reduction). These reductions occurred in two stages,

with two-thirds ofthe reductions occurring by May 1,2003, and the remaining one-third by May

1,2005.

4. Federal Emission Control Measures

TCEQ notes that other Federal emission control measures have had significant impacts on

VOC and NOx emissions in the BPA area. These Federal measures include the following.

Tier 2 Emission Standardsfor Vehicles and Gasoline Sulfur Standards. These emission

control requirements result in lower VOC and NOx emissions from new cars and light duty

trucks, including sport utility vehicles. The Federal rules were phased in between 2004 and

2009. The EPA has estimated that, by the end ofthe phase-in period, the following vehicle NOx

emission reductions will occur nationwide: passenger cars (light duty vehicles) (77 percent); light

duty trucks, minivans, and sports utility vehicles (86 percent); and, larger sports utility vehicles,'

vans, and heavier trucks (69 to 95 percent). VOC emission reductions are expected to range

from 12 to 18 percent, depending on vehicle class, over the same period. Although some ofthe

emission reductions occurred by the attainment years (2005-2007) in the BPA area, additional

emission reductions will occur during the maintenance period. For example, note that the Tier 2

emission standards for passenger vehicles weighing over 8,500 pounds were not implemented

until 2008 or later.

Heavy-Duty Diesel Engine Rule. EPA issued this rule in 2000 (October 6, 2000, 65 FR

54
59895; Updated Emissions Standards for 2004 and Later Model Year Highway Heavy Duty

Engines and Vehicles). This rule includes standards limiting the sulfur content ofdiesel fuel,

which went into effect in 2004. A second phase took effect in 2007, which further reduced the

highway diesel fuel sulfur content to 15 parts per million, leading to additional reductions in

combustion NOx and VOC emissions (January 18,2001,66 FR 5001; Heavy Duty Engine and

Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements). This rule is expected

to achieve a 95 percent reduction in NOx emissions from diesel trucks and busses.

Non-Road Diesel Rule. EPA issued this rule in 2004. This rule applies to diesel engines

used in industries, such as construction, agriculture, and mining. It is estimated that compliance

with this rule will cut NOx emissions from non-road diesel engines by up to 90 percent. This rule

is currently achieving emission reductions, but will not be fully implemented until 2010.

Locomotives and Marine Compression-Ignition Engines. This EPA rule was issued

March 14, 2008 and includes new emission standards for locomotives and marine diesel engines

that will reduce NOx emissions by about 80 percent compared with engines meeting the current

standards. These new requirements have three parts: tightening emission standards for existing

locomotives and large marine engines when they are remanufactured, effective in 2008;

establishing Tier III standards for new locomotives and marine diesel engines that were phased in

beginning in 2009; and establishing more stringent Tier IV standards for new locomotives and

marine diesel engines that will be phased in beginning in 2014.

Additional Federal programs. Additional federal programs for emissions reductions in

the BPA area include Onboard Refueling Vapor Recover (ORVR) for light-duty vehicles, and

Federal control through Maximum Achievable Control Technology (MACT) of Hazardous Air

55
Pollutants emissions. Table 6 shows the federal emissions reductions programs in the BPA area

for fuels and motor vehicles:

Table 6. BPA Federal Emission Reductions Programs

Federal~easures

o Tier 2 Fuel and Vehicle Emission Standards

o Onboard Refueling Vapor Recovery (ORVR) for light-duty vehicles

o Heavy-Duty Engine and Vehicle and Fuel Standards

o Federal controls on certain nonroad engil1~_s

o Federal control through Maximum Achievable Control Technology

~(MACl)of Hazardous Air Pollutants emissions

o Volatile Organic Compound Emission Standards for Consumer

Products

o Volatile Organic Compound Emission Standards for Architectural

Coatings

o Locomotives and Marine Compression-Ignition Engines

5. Additional State and Local Emission Reductions

Several local permanent and enforceable emission reductions have occurred through

various mechanisms other than through RACT rules or through Federal emission control

rules/programs. These State and Local measures, which are permanent and enforceable, include

the following.

Texas Low Emission Diesel (I'xLED) rule. Texas' TxLED rule reduces emissions ofNOx

and other pollutants from diesel-powered motor vehicles and non-road equipment operating

within 110counties in the eastern half ofTexas, including the BPA area. This rule was

originally adopted by TCEQ in 2000 and revised in 2007, with compliance occurring over a

range of years, beginning in 2005, and continuing through the beginning of2008.

Texas Emission Reduction Plan (I'ERP). TERP, established in 2001, includes incentive

grant programs to reduce NOx emissions from internal combustion engines on mobile sources.

56
Eligible grant projects include fleet expansions with cleaner engines, replacement of old vehicles

and equipment, repower of old engines, and on-vehicle and on-site infrastructure for idle

reduction, electrification, and deliver of alternative fuels. TCEQ explains in its submittal that, as

of September 2007, the TERP program has awarded over $19 million for 58 projects in the BPA

area, which are estimated to reduce NOx emissions by more than 2.7 tons per day by 2009. In the

BPA area, the projects funded thus far have resulted in NOx reductions of 4,480 tons.

Agreed Orders. Although not relied upon by the State for showing attainment or RFP,

Agreed Orders have also been important in reducing NOx and VOC emissions in the BPA area.

In December 2004, TCEQ adopted revisions to the BPA SIP to incorporate Agreed Orders in

which six companies in the BPA area agreed to make enforceable measures that were not

required. The six companies were ISP Elastomers; Mobil Chemical Company, a Division of

Exxon Mobil Corporation; Huntsman Petrochemical Corp. of Port Arthur and also of Port

Neches; Motiva Enterprises LLC; and Premcor Refining Group, Inc. The Agreed Orders

included voluntary emissions reductions, air monitoring improvements, and other actions.

Table 7- shows the state and local emissions reductions programs in the BPA area.

Table 7 BPA State and Local Emission Reductions Programs

State and Local Measures ~~ _ ~~ __" __ "."" __ ._~"""w_~._~ "" ",_._m.,,'__ "·W.""~_·.~'C"_~__

o Texas Low Emission Diesel (Ix:.LED)

o Texas Emission Reduction Plan (TERP)

o Prevention of Significant Deterioration

o Agreed Orders

6. Controls to Remain In Effect

Texas commits to maintain all ofthe current emission control measures for VOC and

57
NOx after the BPA area is redesignated to attainment. Texas, through TCEQ's ChiefEngineer's

Office, Air Quality Division, and the Office ofCompliance and Enforcement, has the legal

authority and necessary resources to actively enforce against any violations ofthe State's air

pollution emission control rules. After the BPA area is redesignated to attainment, TCEQ will

implement NSR for major stationary sources and major modifications through the PSD program.

Summary.

As discussed above, local controls as well as national emission controls have contributed

to the ozone air quality improvement in the BPA area. NOx and VOC emissions have dropped

substantially. Based on the above, EPA proposes to determine that Hardin, Jefferson, and

Orange Counties and the State ofTexas have met the requirement ofsection 107(d)(3)(E)(iii) of

the CAA, and have demonstrated that the improvement in air quality is due to permanent and

enforceable emission reductions.

As noted above, Texas has committed to retaining all existing emission control measures

that affect ozone levels in the BPA area after Hardin, Jefferson, and Orange Counties are

redesignated to attainment ofthe 1997 eight-hour ozone NAAQS. All changes in existing rules

subsequently determined to be necessary must be submitted to the EPA for approval as SIP

revisions.

EPA thus proposes to find that the improvement in air quality in the BPA area is due to

permanent and enforceable emissions reductions. Section 107(d)(3)(E)(iii).

VIII. Does Texas have a Fully Approvable 1997 8-Hour Ozone Maintenance Plan Pursuant

to Section 175A of the CAA for the BPA Area?

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A. What is Required in an Ozone Maintenance Plan?

In conjunction with its request to redesignate the BPA 1997 8-hour ozone nonattainment

area, the State ofTexas included a SIP revision to provide for the maintenance ofthe 1997 8-

hour ozone NAAQS in the BPA area for at least 10 years after redesignation to attainment.

Section 107(d)(3)(E)(iv). Section 175A ofthe CAA sets forth the required elements of air

quality maintenance plans for areas seeking redesignation to attainment of a NAAQS. Under

section 175A, a maintenance plan must demonstrate continued attainment ofthe applicable

NAAQS for at least 10 years after the Administrator approves the redesignation to attainment.

The State must commit to submit a revised maintenance plan within eight years after the

redesignation. This revised maintenance plan must provide for maintenance ofthe ozone.

standard for an additional 10 years beyond the initial 10 year maintenance period. To address the

possibility offuture NAAQS violations, the maintenance plans must contain contingency

measures, with schedules ofimplementation, as EPA deems necessary, to assure prompt

correction of any future NAAQS violation. The September 4, 1992, Calcagni memorandum

provides additional guidance on the content ofmaintenance plans.

An ozone maintenance plan should, at minimum, address the following: (l) the

attainment VOC and NOx emission inventories; (2) a maintenance demonstration showing

maintenance for the 10 years ofthe maintenance period; (3) a commitment to maintain the

existing monitoring network; (4) factors and procedures to be used for verification of continued

attainment; and, (5) a contingency plan to prevent and/or correct a future violation ofthe

NAAQS.

B. How Did Texas Estimate the VOC and NOx Emissions for the Attainment

59
Year and the Projection Years?

Sections 172(c)(3) and 182(b)(1) ofthe CAA require that the SIP include an inventory of

actual emissions from all sources ofrelevant pollutants in the nonattainment area. The emission

inventory for an ozone nonattainment area contains VOC and NOx emissions as these pollutants

are precursors to ozone formation. TCEQ prepared a comprehensive emission inventory for the

BPA area including point, area, on-road, and off-road mobile sources with the baseline year of

2005.

Texas developed its baseline 2005 Emissions Inventory by updating the 2002 Periodic

Emissions Inventory (PEl) for NOx and VOC in the BPA area. TCEQ initially submitted the

2002 PEl to EPA as part ofthe 2005 Dallas-Fort Worth 5% increment of progress SIP revision,

but did not provide for public comment. Since then, Texas updated the inventory for area and

nonroad emissions categories and provided the inventory for public comment. The emissions

inventory for 2005 was included by Texas in its submittal to EPA on December 16, 2008, as part

ofits request to redesignate the BPA to attainment for the 1997 8-hour ozone NAAQS.

Texas' 2005 emissions inventory is listed in ·tables 2.5 and 2.6 ofTexas' December 18,

2008, submittal, which is included in the docket for this action. The year 2005 was chosen by

Texas as the base year for developing a comprehensive ozone precursor emissions inventory for

which projected emissions could be estimated for 2011, 2014, 1017, and 2021. The use of 2005

is an appropriate choice because it is one ofthe years in the period that the area has monitored

attainment (2005 - 2007). The 2005 base year and projected year emissions for Hardin, Jefferson

and Orange Counties were determined using the following procedures:

Area Source Emissions. Area source emissions for the base year 2005 were determined

60
using Texas' 2005 periodic inventory as the starting point, and then specific inventory categories

and emissions were reviewed and updated with current methodologies and local activity data

when it was available. TCEQ compiled the 2005 area source emissions inventory from several

sources ofdata, including work from various research contracts, TCEQ's research, and the EPA's

National Emissions Inventory. Area source emissions for future years were projected using

EPA's Economic Growth Analysis (EGAS) 5.0 or other growth factors, in accordance with EPA

guidance. More information about calculations related to area source emissions is available in

Chapter 4 and Appendix B ofTexas' December 16,2008 submittal, which is included in the

docket.

Point Source Emissions. Point source VOC and NOx emissions for the base year 2005

were compiled from Texas' annual emission database, which is called the "State ofTexas Air

Reporting System" (STARS). TCEQ projected point source emissions for future years by

applying projection factors, where applicable, for EGU and non-EGU point sources,

incorporating adjustments for three refineries, which were permitted to expand operations, as

well as making adjustments for emissions credits, More information about calculations related to

point sources is available in Chapter 4 and Appendix E ofTexas' December 16, 2008 submittal

which is included in the docket.

On-road Emissions. Mobile source emissions were calculated by a contractor to TCEQ,

the Texas Transportation Institute (TTl), an objective transportation research entity within the

Texas A&M University system, using EPA's MOBILE 6.2.03 emission factor model and traffic

data taken from a travel-demand model for the three-county BPA area. TCEQ has provided

detailed information to document the calculation ofon-road mobile source VOC and NOx

61
emissions for 2005, as well as for the projection years of2011, 2014, 2017, and 2021 (Chapter 4

and Appendices C and D ofTCEQ's December 18,2008 submittal.)

Non-road Emissions. For the majority of non-road types of equipments, TCEQ estimated

emissions for the 2005 base year and 2011 using a model developed by TCEQ called TexN that

utilizes EPA's NONROAD MODEL 2005 using county specific activity data. Since TexN could

only provide projections to 2013, TCEQ developed non-road emissions projections for 2014,

2017, and 2021 using EPA's National Mobile Inventory Model (NMIM). For aircraft,

locomotives, and commercial marine vessels, TCEQ estimated VOC and NOx emissions using

growth factors specific to those industries. More information about calculations related to nonroad sources is available in Chapter 4 and Appendix B ofTexas' December 16,2008 submittal,

which is included in the docket.

C. Has the State Demonstrated Maintenance of the Ozone Standard in the BPA

Area?

As part ofits request to redesignate the BPA 8-hour ozone nonattainment area, the State

ofTexas included a SIP revision to incorporate a maintenance plan as required under section

175A ofthe CAA. The maintenance plan includes a demonstration based on a comparison of

emissions in the attainment year (2005) and projected emissions to demonstrate maintenance of

the 1997 8-hour ozone NAAQS in the BPA area for at least 10 years after the anticipated

redesignation year [section 107(d)(3)(E)(iv)]. To demonstrate maintenance ofthe 1997 8-hour

ozone standard, TCEQ projected VOC and NOx emissions to 2021 and to several interim years,

2014, and 2017. These emissions were compared to the 2005 attainment year emissions to show

that emissions ofNOx and VOC, when considered together, remain below the attainment levels

62
for the entire demonstrated maintenance period.

In the December 18, 2008, ozone redesignation request, TCEQ graphically represented

and compared the VOC and NOx emissions for 2005,2011,2014,2017 and 2021 for all major

source sectors, and in total for the BPA nonattainment area. In its ozone maintenance

demonstration, TCEQ presented the NOx and VOC emission totals for the 2005 base year and all

projection years for the BfA area without the impacts ofCAIR.3 TCEQ's maintenance

demonstration shows that in 2011, 2014, 2017, and 2021 (without the impacts ofCAIR rules),

VOC and NOx emission totals for the BPA area, when considered together, are projected to be

below the 2005 VOC and NOx emissions for the area.

NOx emissions in the BPA area are projected to decline by 14 percent between 2005 and

2021. Note that the projected NOx emission reduction for 2020 did not include NOx emission

reductions resulting from CAIR, but did include NOx emission reductions resulting from Texas'

existing NOx emission control rules that are in the Texas SIP. VOC emissions in the BPA area

are projected to increase by approximately 6 percent between 2005 and 2021. However, based

on photochemical modeling analyses showing that the formation of ozone in the BPA area is

more sensitive to NOx than to VOC emissions, the increase in VOC emissions is expected to be

fully offset by the decrease in NOx• Specifically, photochemical modeling analyses show that for

reducing the ozone design value in the BPA area, reducing NOx emissions is 3.76 times as

effective as reducing VOC emissions. This is discussed more fully below. Based on this

3 The U.S. Court of Appeals, for the District ofColumbia Circuit has remanded CAIR without vacatur, directing

EPA to revise the CAIR rule. This leaves the current version ofthe CAIR rule In question and raises questions about

the future emission impacts of States' CAIR-based emission control rules. As a conservative approach to this

problem, EPA requested that TCEQ remove the impacts ofthe State's CAIR NOx emission control rules. TCEQ

complied, and by the time ofthe December 18,2008, submittal had removed all emissions impacts due to CAIR in

~~~~

63
analysis, emissions in the BPA area are expected to remain at levels consistent with attainment

for the 1998 8-hour ozone standard from 2010 through 2021.

The December 23,2008, remand ofEPA's CAIR by the U.S. Court ofAppeals led to

both the State and EPA further considering the impact ofthis remand on Texas' ozone

maintenance demonstration for the BPA area. The CAIR was remanded to EPA, and the process

of developing a replacement rule is ongoing. The remand ofCAIR does not alter the

requirements ofthe NOx SIP call. Although Texas is not subject to the NOx SIP call, Texas,

however, has demonstrated that the BPA area can maintain the 1997 eight-hour ozone standard

without any additional NOx emission reduction requirements. Regarding the impact of pollution

from other States, all NOx SIP Call states have SIPs that currently satisfy their obligations under

the SIP Call, the SIP Call reduction requirements remain applicable and are being met, and EPA

will continue to enforce the requirements ofthe NOx SIP Call even after any response to the

CAIR Remand. As EPA has noted in other recent redesignation actions (e.g., Columbus Ohio,

74 FR 47404,47405 (September 15,2009), "EPA believes that regardless ofthe status ofthe

CAIR program, the NOx SIP call requirements can be relied upon in demonstrating

maintenance." Therefore, EPA believes that Texas' demonstration ofmaintenance under

sections 175A and 107(d)(3)(E) ofthe CAA remains valid.

Texas has successfully demonstrated maintenance ofthe 1997 8-hour ozone standard

between 2005 and 2021. In addition, VOC and NOx emissions in the BPA area, when considered

together with Texas' photochemical modeling analyses, are projected to decline between 2005

and 2021. Given the emissions growth and source control factors used to project emissions, EPA

and Texas do not anticipate an increase in the overall combined VOC and NOx emissions in the

64
BPA area between 2010 and 2021.

The following table provides NOx and VOC emissions data for the 2005 base year

inventory, as well as projected NOx and VOC emission inventory data for the years 2011, 2014,

2017, and 2021 for the BPA area. Please see Part n.B. ofthe TSD for additional emissions

inventory data including projections by source category.

Table 8

Base Year and Projected NOx and VOC Emissions in BPA

NOx Emissions (tpd)

(without CAIR)

Source Category 2005 2011 2014 2017 2021

Point 68.49 77.39 78.84 78.67 80.27

Area 9.06 9.95 10.40 10.86 11.47

Mobile 45.60 17.91 12.38 8.66 6.24

Nonroad 25.99 27.08 27.88 28.87 30.63

Total 149.14 132.33 129.50 127.06 128.61

Table 8 (continued)

VOC Emissions (tpd)

(without CAIR)

Source Category 2005 2011 2014 2017 2021

Point 42.68 48.23 49.77 51.44 53.80

Area 151.57 155.77 157.06 158.63 160.77

Mobile* 11.63 7.92 6.51 5.58 4.77

Nonroad** 4.96 4.36 4.23 4.20 4.30

Total 210.84 216.28 217.57 219.85 223.64

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*Calculated using MOBILE 6.2.03

**Calculated using NONROAD 2005

As shown in Table 8 above, total NOx emissions are projected to decrease and total VOC

emissions are projected to increase slightly for the area ofthe 10-year period ofthe maintenance

plan. Emissions projections for future years in the area indicate a downward trend in NOx

emissions through 2021 as NOx emissions are projected to decrease by 20.53 tpd, or

approximately 14% (from 149.14 tpd to 128.61 tpd). VOC emissions projections through 2021

show a slight increase in projected emissions of 12.80 tpd by the year 2021, or approximately 6%

(from 210.84 tpd to 223.64 tpd). This projected increase (6%) is relatively small considering that

it occurs over a period of approximately sixteen years (as from the 2005 baseline). The slight

upward trend in VOC emissions results from projected increases for the point and non-point

(area) source emission categories. Emissions from non-road mobile and on-road mobile sources

are projected to decrease.

As mentioned above, the projected 14% reduction (20.53 tpd) in NOx emissions is

expected to sufficiently offs-et the projected 6% increase (12.80 tpd) in VOC emissions, enabling

the area to continue to maintain the 1997 ozone standard. Photochemical modeling analyses

were submitted showing that reducing VOC emissions by 5.53 tpd results in an estimated design

value reduction of 0.054 ppb. To reduce the ozone DV by 1 ppb, 102.4 tpd ofVOC would need

to be reduced. Reducing NOx emissions by 7.80 tpd reduces the ozone DV by 0.287 ppb. This

means that a reduction of 27.2 tpd ofNOx emissions would be required to reduce one ppb in the

DV. Thus, NOx emission reductions are expected to be 3.76 (102.4/27.2) times as effective in

reducing the ozone DV as VOC emission reductions.

66
EPA proposes to conclude that TCEQ has demonstrated maintenance ofthe ozone

standard during the 10-plus year maintenance period for the BPA area through projections of

VOC and NOx emissions that show that when considered together the emissions willremain

below the 2005 attainment levels during the maintenance period. This is demonstrated without

the emission reductions from CAIR.

D. .Monitoring Network

The State ofTexas has committed in its maintenance plan for the BPA area to continue

operation of an appropriate ozone monitoring network and to work with EPA in compliance with

40 CFR Part 58 with regard to the continued adequacy ofthe network, including whether

additional monitoring is needed, and when monitoring can be discontinued.

There are five monitoring sites operated by the TCEQ in the BPA area, located in

Jefferson and Orange Counties. TCEQ operates these monitors in accordance with the

requirement of40 CFR Part 58 and the EPA-approved Quality Assurance Program Plan.

There are four additional monitors operated by the South East Texas Regional Planning

Commission (SETRPO). Ifthe SETRPC, however, removes one ofits monitors, the EPA and

Texas will jointly review the adequacy ofthe network, including whether additional monitoring

is needed. In the maintenance plan, Texas commits to continue operation ofthe five ozone

monitors it operates in compliance with 40 CFR part 58 through the end ofthe maintenance

period (2021). The State also commits to continue to operate a monitoring network in

accordance with 40 CFR part 58 and to enter data into the Air Quality System in accordance with

Federal guidelines. The TCEQ will continue to provide data from the SETRPC monitors on the

Commission's website and in EPA's AQS database as long as the SETRPC participates in the

67
network.

As identified in the maintenance plan, each ofthe nine monitoring sites in the BPA area

monitored attainment with the 1997 8-hour ozone standard beginning in 2005. Data for each

monitoring site was shown above and further discussed in Section V.A. Table 1. See the docket

for a map ofthe BPA monitoring network, and the TSD: Part LA. for additional monitoring

information.

E. Verification of Continued Attainment

Texas has the legal authority to enforce and implement the requirements ofthe ozone

maintenance plan for the BPA area. This includes the authority to adopt, implement, and enforce

any subsequent emissions control contingency measures determined to be necessary to correct

future ozone attainment problems.

Texas will track the progress ofthe maintenance plan through continued ambient ozone

monitoring in accordance with the requirements of 40 CFR Part 58, and by performing future

reviews of actual emissions for the area using the latest emissions factors, models, and

methodologies. (section 4.2 ofTCEQ's BPA submittal, December 16,2008). For these periodic

updates ofthe BPA emissions inventories, Texas will review the assumptions made for the

purpose ofthe maintenance demonstration concerning projected growth and activity levels.

F. What is the Maintenance Plan's Contingency Plan?

The section 175(A) maintenance plan includes contingency provisions to promptly

correct any violation ofthe 1997 ozone NAAQS that occurs after redesignation. The

contingency plan provisions are designed to promptly correct or prevent a violation ofthe

NAAQS that might occur after redesignation of an area to attainment. Section 175A ofthe CAA

68
requires that a maintenance plan include such contingency measures, as EPA deems necessary to

assure that the state will promptly correct a violation ofthe NAAQS that occurs after

redesignation. The maintenance plan should identify the contingency measures to be adopted, a

schedule and procedure for adoption and implementation ofthe contingency measures, and a

time limit for action by the state. The State should also identify specific indicators to be used to

determine when the contingency measures need to be adopted and implemented. The

maintenance plan must include a requirement that the state will implement all measures with

respect to control ofthe pollutant(s) that were contained in the SIP before redesignation ofthe

area to attainment. See section 175A(d) ofthe CAA.

As required by section 175A ofthe CAA, Texas has adopted a contingency plan for the

BPA area to address possible future ozone air quality problems.

The contingency measure trigger for the BPA maintenance plan is based upon

.monitoring. The triggering mechanism for activation of contingency measures is a monitored

violation ofthe 1997 ozone standard. In this maintenance plan, if contingency measures are

triggered, TCEQ' has committed to adopt and implement the measures as-expeditiously as

practicable, but no longer than 18 months following the trigger. In order to accomplish this, in

the submittal Texas commits to adopt within nine months (and implement within eighteen

months) one or more contingency measures to re-attain the standard in the event of a violation of

the 1997 8-hour ozone NAAQS in the BPA area. The measures to be considered include, but are

not limited to the following control measures:

• Revision to 30 TAC Chapter 117 to control rich-burn, gas-fired, reciprocating

internal combustion engines to meet NOx emission specifications and other requirements to

69
reduce NOx emissions and ozone air pollution.

• Inclusion of one or more counties in the BPA area in 30 TAC Chapter 115 VOC

rules for the control of crude and condensate storage tanks at upstream oil and gas exploration

and productions sites or midstream pipeline breakout stations with uncontrolled flash emissions

greater than 25 tpy.

• Inclusion of one or more counties in the BPA area in 30 TAC Chapter 115 VOC

rules for more stringent controls for tank fittings on floating rooftanks, such as slotted

guidepoles and other openings in internal and external floating roofs.

• Inclusion ofone or more counties in the BPA area in 30 TAC Chapter 115 VOC

rules limiting emissions from landings offloating roofs in floating rooftanks.

• Inclusion of one or more counties in the BPA area in 30 TAC Chapter 115 VOC

rules for control of emissions from degassing operations for storage tanks with a nominal

capacity of 75,000 gallons or more storing materials with a true vapor pressure greater than 2.6

pounds per square inch absolute (psia), or with a nominal capacity of250,000 gallons or more

storing materials with a true vapor pressure of 0.5 psia or greater. Degassing vapors from storage

vessels, transport vessels, and marine vessels would be required to vent to a control device until

the VOC concentration ofthe vapors is reduced to less than 34,000 parts per million by volume

as methane.

• Inclusion ofone or more counties in the BPA area in 30 TAC Chapter 114 rule for

TxLED compliant marine diesel.

In addition, the maintenance plan states that the BPA area may also be expected to

voluntarily implement some additional local control measures.

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These contingency measures and schedules for implementation satisfy EPA's

longstanding guidance on the requirement ofsection 175(A) for continued attainment.

Continued attainment in the Beaumont Port Arthur area will depend, in part, on the air quality

measures discussed previously (see VI.B. and V.BA. above). The State will continue to operate

appropriate ambient ozone monitoring sites in the BPA area to verify continued attainment ofthe

1997 ozone NAAQS. The air monitoring results will reveal changes in the ambient air quality as

well as assist the State in determining which contingency measures will be most effective if

necessary.

As required by section 175A(b) ofthe CAA, Texas commits to submit to the EPA an

updated ozone maintenance plan eight years after redesignation ofthe BPA area to cover an

additional ten-year period beyond the initial ten-year maintenance period. As required by section

175A(d) ofthe CAA, Texas has also committed to retain VOC and NOx control measures

contained in the SIP prior to redesignation.

EPA finds that the plan adequately addresses the five basic components of a maintenance

plan: attainment inventory, maintenance demonstration, monitoring network, verification of

continued attainment, and contingency plan. The maintenance plan SIP revision submitted by

Texas for BPA meets the requirements ofsection 175A ofthe Act. Therefore, EPA is proposing

to approve the maintenance plan for the BPA area for the 1997 8-hour ozone standard as part of

the Texas SIP.

IX. What is EPA's Evaluation ofthe BPA Area's Motor Vehicle Emissions Budget?

A. What are the Transportation Requirements for Approvable MVEBs?

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A maintenance plan must include a MVEB for transportation conformity purposes.

"Conformity" to the SIP means that transportation activities will not cause new air quality

violations, worsen existing violations, or delay timely attainment ofthe NAAQS. It is a process

required by section 176(c) ofthe Act for ensuring that the effects of emissions from all on-road

sources are consistent with attainment or maintenance ofthe standard. EPA's transportation

conformity rules at 40 CFR 93 require that transportation plans, and programs, result in

emissions that do not exceed the MVEB established in the SIP. The maintenance plan

established an MVEB for 2021, which is the last year ofthe maintenance plan.

The MVEB is the level oftotal allowable on-road emissions established by the

maintenance plan. Maintenance plans must include the estimates ofmotor vehicle VOC and

NOx emissions that are consistent with maintenance of attainment, which then act as a budget or

ceiling for the purpose ofdetermining whether transportation plans, and programs conform to the

maintenance plan. In this case, the MVEB sets the maximum level of on-road transportation

emissions that can be produced, when considered with emissions from all other sources, which

'demonstrates continued maintenance of attainment ofthe 1997 8-hour ozone NAAQS.

B. What is the Status of EPA's Adequacy Determination?

When reviewing submitted "control strategy" SIPs or maintenance plans containing a

MVEB, EPA determines whether the MVEB contained therein is "adequate" for use in

determining transportation conformity. Once EPA finds a budget adequate, the budget must be

used by local, state and federal agencies in determining whether proposed transportation plans

and programs "conform" to the SIP as required by section 176(c) ofthe Act.

EPA's substantive criteria for determining "adequacy" of a MVEB are set out in 40 CFR

72
93.118(e)(4). The process for determining the adequacy of an MVEB was initially outlined in

EPA's May 14, 1999, guidance, "Conformity Guidance on Implementation ofMarch 2, 1999,

Conformity Court Decision." This guidance was finalized in the Transportation Conformity Rule

Amendments for. the "New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards

and Miscellaneous Revisions for Existing Areas; transportation conformity rule amendments -

Response to Court Decision and Additional Rule Change," on July 1,2004 (69 FR 40004).

Additional information on the adequacy process for MVEBs is available in the proposed rule

entitled, "Transportation Conformity Rule Amendments: Response to Court Decision and

Additional Rule Changes," 68 FR 38974,38984 (June 30, 2003).

As discussed earlier, Texas' maintenance plan submission includes NOx and VOC

budgets for the year 2021. EPA reviewed the budgets through the adequacy process. The

availability ofthe SIP submission with this 2021 MVEB was announced for public comment on

EPA's adequacy Web page on April 15,2009, at:

http://www.epa.gov/otaq/transp/confonn/adequacy.htm. The EPA public comment period on the

adequacy ofthe 202-1 MVEB for BPA closed on May 15,2009. EPA did not receive any adverse

comments on the MVEB. On April 1, 2010, EPA made a finding of adequacy for the 2021

MVEB included in this 8-hour ozone maintenance plan (75 FR 16456).

C. Is the MVEB Approvable?

Table 9 shows the total projected transportation emissions for 2021, as submitted by

Texas.

Table 9

Beaumont / Port Arthur Projected Transportation Emissions

(tons per avg. ozone season day)

73
Pollutant 2005 2011 2014 2017 2021

NOx 45.60 17.91 12.38 8.66 6.24

VOC 11.63 7.92 6.51 5.58 4.77

These transportation emissions are also represented in Table 8 ofthis notice as the

"mobile" emissions portion of emission inventory data for the BPA area. As shown in Tables 8

and 9, substantial reductions in both NOx and VOC transportation emissions are projected

between 2005 and 2021. Further, as previously stated in this action, EPA finds that the State has

demonstrated the future combined emissions levels ofNOx and VOC in 2011, 2014, 2017, and

2021 are expected to be similar to or less than the emissions levels in 2005. The projected

transportation emissions for 2021 were used by Texas as the basis ofthe 2021 NOx and VOC

MVEB for the BPA area. These emissions are consistent with the maintenance plan

demonstrating continued compliance with the 1997 ozone NAAQS for the 10-year period

following redesignation to attainment.

Under 40 CFR 93.101, the term safety margin is the amount by which the total projected

emissions from all sources of a given pollutant are less than the total emissions that would satisfy

the applicable requirement for reasonable further progress, attainment, or maintenance. The

attainment level of emissions is the level of emissions during one ofthe years in which the area

met the NAAQS. The safety margin can be allocated to the transportation sector; however, the

total emissions must remain below the attainment level. Emission projections contained in the

BPA maintenance plan show the 2021 inventory in the BPA area represents a 20.53 tpd decrease

in NOx emissions compared with 2005 (Table 4-2), while VOC emissions increase by 12.80 tpd

(Table 4-1). Conservatively assuming a 1:1 ratio ofNOx NOC emissions in the formation of0 3,

the net total reduction in NOx emissions is 7.73 tpd (Table 4-3). Texas has allocated one tpd of

74
the NOx emission reduction as a safety margin, which increases the 2021 MVEB for NOx

emissions from 6.24 tpd to 7.24 tpd. This is discussed in greater detail in Part II.D. ofthe TSD.

EPA finds this to be an acceptable allocation.

The submitted NOx and VOC MVEB for the BPA area is defined in Table 10 below.

Table 10

Beaumont / Port Arthur NOx and VOC MVEB

(summer season tons per day)

Pollutant 2021

NOx 7.24·

VOC 4.77

• Includes an allocation of I tpd from the available NOx safety margin

Through this rulemaking, EPA is proposing to approve Texas' 2021 MVEB for VOCs

and NOx for the BPA area for transportation conformity purposes, because EPA has determined

that the area maintains the 1997 8-hour ozone standard with the emissions at the levels ofthe

budget. The submittal has met the adequacy criteria in 40 CFR 93.118(e)(4), and EPA has

completed a comprehensive review ofthe maintenance plan, concluding that the overall plan

demonstrates maintenance, is approvable and the budgets are consistent with the overall plan.

Therefore, the budgets can be proposed for approval.

x. EPA's Evaluation of the Backfill Contingency Measures for the I-Hour Ozone

Failure-to-Attain Contingency Measures and the State's Request to Remove an

Unimplemented VOC Rule from the Texas SIP

EPA approved the l-hour ozone failure-to-attain section 172(c)(9) and 182 (c)(9)

contingency measures for the BPA area on February 10, 1998 at 63 FR 6659 as part ofEPA's

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approval ofthe BPA area's 15% VOC ROP Plan. These contingency measures included the

Federal Tier I rules, the Federal small engine VOC rule, and excess reductions from the 15%

VOC ROP Plan. When EPA reclassified the BPA area to serious for the l-hour ozone NAAQS,

these are the contingency measures that EPA triggered. EPA approved a marine vessel-loading

rule as part ofthe Texas SIP for the BPA area on January 26, 1999 (64 FR 3841). As written, it

appears it is triggered upon an EPA finding offailure to attain but it was not included in the SIPapproved contingency plan for the BPA area. EPA never approved it specifically as a section

172(c)(9) contingency measure nor did EPA approve it as a replacement for the 1998-approved

contingency measures. In the Federal Register action for reclassification ofthe BPA area for the

1997 8-hour ozone standard to moderate, EPA refers specifically to the 1998-approved l-hour

contingency measures as the ones EPA triggered to be implemented for failure to attain. (73 FR

14391, March 18,2008) Also in the reclassification Federal Register action, EPA required the

State to submit additional contingency measures to replace, i.e., backfill, the triggered

contingency measures for its new serious area attainment deadline under section l82(c)(9). The

State submitted two control measures on October 15, 2005, as a SIP revision to replace or'

backfill the triggered contingency measures as required by the reclassification notice. The

proposed l-hour section 182(c)(9) contingency measures are emissions reductions from:

1) NOx and VOC reductions from three companies in the BPA area through Agreed Orders, and

2) NOx reductions from the Texas Emissions Reductions Program (TERP) projects.

EPA approved the Agreed Orders into the SIP on April 12, 2005 (70 FR 18995). The

TERP program was approved as part ofthe Texas SIP on August 19, 2005 at 70 FR 48647

including the methodology for calculating SIP credits for the individual TERP control measures.

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TERP provides funding to offset the incremental costs of projects associated with reducing NOx

emissions from high-emitting internal combustion engines.

Together, reductions from these two control measures meet the 3 percent requirement for

the l-hour backfill failure-to-attain contingency measures. The NOx reductions from the Agreed

Orders and the TERP projects were not relied upon for ROP or attainment demonstration

purposes and have already been implemented. Please see the TSD: Part ILE. for additional

detail. EPA is proposing to approve the substitute control measures for the backfill failure-toattain contingency measures. Although, as noted in the discussion above, the l-hour antibacksliding contingency measure obligation is suspended upon a final determination that the area

is attaining the I-hour ozone standard, and terminates upon a final redesignation ofthe area for

the 8-hour ozone standard, EPA understands that TCEQ nonetheless wishes EPA to take action

upon the submitted backfill measures. EPA notes that, after the area is redesignated to

attainment for the 8-hour ozone NAAQS, these l-hour contingency measures are replaced by the

section I75A Maintenance Plan contingency measures.

Also, in this SIP revision, TCEQ submitted a request to remove from the Texas SIP, the

"contingency" measure marine vessel loading rule (30 TAC §II5.2I9). This Texas marine

vessel rule was approved into the Texas SIP but was never implemented by the State. As

discussed above, this measure was not relied upon as part of a I72(c)(9) or I82(c)(9) contingency

plans and was not triggered by the EPA as part ofthe reclassification notice.

Texas, in its SIP revision, made clear that the marine vessel loading rule should not be a

part ofthe backfill failure to attain contingency plan required by the reclassification and that the

two measures used to comprise this plan were an appropriate substitute for the marine vessel

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loading rule. In fact, Texas' sensitivity tests in photochemical modeling runs indicate that

reductions of I tpd ofNOx are equivalent to reductions of 3.8 tpd ofVOC in reducing ozone in

the BPA area (TCEQ Attainment Demonstration SIP, received October 18,2005, section 5.3.1,

p. 5-4). The two backfill contingency measures are mostly NOx reductions and would be

expected to be more effective than the Marine Vessel Loading Rule, a VOC control in reducing

ozone.

The SIP marine-vessel loading rule was never relied upon for demonstrating attainment,

achieving reasonable further progress, or as a reasonable available control measure. It was not

relied upon in the 15% VOC ROP plan or the post-I 996 ROP plan. It was not relied upon in any

ofthe submitted attainment demonstration SIPs. It also is not required to meet VOC RACT.

EPA notes that since adoption by TCEQ, federal rules for marine vessel loading have been

adopted and achieve much ofthe reductions that would have been achieved ifthe State rule had

been triggered.

EPA has evaluated Texas' request to remove the marine vessel-loading rule from its SIP.

For the reasons cited above, whereas the Texas rule was never implemented or triggered as a

contingency measure and whereas the rule is not needed to satisfy any other statutory

requirements, EPA proposes that the Texas marine vessel-loading rule be removed from the

Texas SIP.

XI. Proposed Actions

EPA is proposing several related actions under the Act for the BPA ozone nonattainment

area, consisting ofHardin, Jefferson, and Orange counties. Consistent with the Act, EPA is .

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proposing to determine that the BPA area has attained the 1997 8-hour ozone NAAQS and to

approve a request from the state of Texas to redesignate the BPA area to attainment ofthe 1997

8-hour ozone standard. This determination is based on complete, quality-assured, and certified

ambient air quality monitoring data for the 2005 - 2007 ozone seasons and 2006-2008 ozone

seasons, as well as data for 2009 in AQS but not yet certified, that demonstrate that the 1997 8-

hour ozone NAAQS has been attained in the area. EPA is also proposing to make a

determination that the BPA area is meeting the l-hour ozone standard. This determination is

based on complete, quality-assured, and certified ambient air quality monitoring data for 2005-

2007 ozone seasons and 2006-2008 ozone seasons, as well as data for 2009 in AQS but not yet

certified, that demonstrate that the I-hour ozone NAAQS has been attained in the area.

Finalizing the I-hour ozone attainment determinationproposal will suspend the I-hour antibacksliding requirements for a I-hour attainment demonstration and RACM analysis and

contingency measures. These requirements will cease to apply ifthe area is redesignated to

attainment for the 1997 8-hour ozone standard.

EPA is proposing to approve the 2002 base year emissions inventory. We are proposing

to approve the State's CFV program equivalency demonstration. We are proposing to find that

the BPA area, upon final approval ofthis emissions inventory and the CFV program equivalency

determination, will meet all the applicable CAA requirements under section 110 and Part D for

purposes ofredesignation for the 1997 8-hour ozone NAAQS including all the applicable

antibacksliding CAA requirements for a serious I-hour ozone nonattainment area. Further, EPA

is proposing to approve into the SIP, as meeting section I75A and 107(d)(3)(E)(iv) ofthe Act,

Texas' maintenance plan for the BPA area for the 1997 8-hour ozone NAAQS. The maintenance

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plan shows maintenance ofthe standard through 2021. Additionally, EPA is proposing to

approve the 2021 MVEB for NOx and VOC submitted by Texas for the BPA area in conjunction

with its redesignation request and maintenance plan.

Consequently, EPA is proposing to approve the State's request to redesignate the area

from nonattainment to attainment for the 1997 8-hour ozone NAAQS. After evaluating Texas'

redesignation request, EPA has determined that upon final approval ofthe above-identified SIP

elements and the maintenance plan, the area will meet the redesignation criteria set forth in

section 107(d)(3)(E) and section 175A ofthe Act. The final approval ofthis redesignation

request would change the official designation in 40 CFR part 81 for the BPA area from

nonattainment to attainment for the 1997 8-hour ozone standard. EPA also notes that if EPA's

proposed determinations of attainment for the l-hour and 8-hour ozone NAAQS are finalized,

the requirements to submit certain planning SIPs related to attainment, including attainment

demonstration requirements (the RACM requirement, the RFP and attainment demonstration

requirements, and the requirement for contingency measures) are suspended as long as it

continues to attain the NAAQS, andwould cease to apply upon final redesignation.

EPA also is proposing to approve the Post-1996 ROP Plan's contingency measures and

backfill failure-to-attain contingency measures, and the removal from the Texas SIP under

section 110(1) of a VOC marine vessel loading contingency measure.

XII. Statutory and Executive Order Reviews

Under the Clean Air Act, redesignation of an area to attainment and the accompanying

approval ofa maintenance plan under section 107(d)(3)(E) are actions that affect the status ofa

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geographical area and do not impose any additional regulatory requirements on sources beyond

those imposed by state law. A redesignation to attainment does not in and ofitself create any

new requirements, but rather results in the applicability ofrequirements contained in the Clean

Air Act for areas that have been redesignated to attainment. Moreover, the Administrator is

required to approve a SIP submission that complies with the provisions ofthe Act and applicable

Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions,

EPA's role is to approve state choices, provided that they meet the criteria ofthe Clean Air Act.

Accordingly, these actions merely do not impose additional requirements beyond those imposed

by state law and the Clean Air Act. For that reason, these actions:

• are not "significant regulatory actions" subject to review by the Office ofManagement

and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• do not impose an information collection burden under the provisions ofthe Paperwork

Reduction Act (44 U.S.C. 3501 et seq.);

• are certified as not having a significant economic impact on a substantial number ofsmall

entities under the Regulatory Flexibility Act (5 U.S.c. 60} et seq.);

• do not contain any unfunded mandate or significantly or uniquely affect small

governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-

4);

• do not have Federalism implications as specified in Executive Order 13132 (64 FR

43255, August 10, 1999);

• are not an economically significant regulatory action based on health or safety risks

subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

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• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355,

May 22, 2001);

• are not subject to requirements ofsection 12(d) ofthe National Technology Transfer and

Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements

would be inconsistent with the Clean Air Act; and

• do not provide EPA with the discretionary authority to address, as appropriate,

disproportionate human health or environmental effects, using practicable and legally

permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65

FR 67249, November 9,2000), because the SIP is not approved to apply in Indian country

located in the state, and EPA notes that it will not impose substantial direct costs on tribal

governments or preempt tribal law.

List of Subjects

40 CFR part 52

Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Nitrogen

dioxides, Reporting and recordkeeping requirements, Volatile organic compounds.

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40 CFR part 81

Environmental protection, Air pollution control.

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

Lawrence E. Starfield

Def'tltyRegional Administrato~

Region 6,.

Dated:

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