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[Federal Register Volume 81, Number 216 (Tuesday, November 8, 2016)]
[Rules and Regulations]
[Pages 78691-78694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26586]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R06-OAR-2015-0609; FRL-9953-89-Region 6]

Clean Air Act Redesignation Substitute for the Houston-Galveston-
Brazoria 1997 8-Hour Ozone Nonattainment Area; Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
redesignation substitute and making a finding of attainment for the 
revoked 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS) 
for the Houston-Galveston-Brazoria ozone nonattainment area (HGB area).

DATES: This rule is effective on December 8, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2015-0609. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT: Tracie Donaldson, 214-665-6633, 
Donaldson.tracie@epa.gov.

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

I. Background

    The background for this action is discussed in detail in our May 
25, 2016 proposal (81 FR 33166). In that document we proposed to 
approve a redesignation substitute and make a finding of attainment for 
the 1997 8-hour ozone NAAQS for the Houston-Galveston-Brazoria ozone 
nonattainment area (HGB area). The redesignation substitute 
demonstration indicates that the area has attained the revoked 1997 8-
hour ozone NAAQS due to permanent and enforceable emission reductions 
and that it will maintain that NAAQS for ten years from the date of the 
EPA's approval of this demonstration. Final approval of the 
redesignation substitute results in the area no longer being subject to 
any remaining applicable anti-backsliding requirements, including 
nonattainment new source review, associated with the revoked NAAQS. In 
general, final approval of the redesignation substitute allows Texas to 
seek to revise the Texas SIP for the area to remove anti-backsliding 
measures from the active portion of its SIP if it can demonstrate, 
pursuant to CAA section 110(1), that such revision would not interfere 
with attainment or maintenance of any applicable NAAQS, or any other 
requirement of the CAA. Because the EPA believes Texas does not need to 
revise its SIP to alter certain provisions for NNSR effective in the 
HGB area, the offset and threshold requirements applicable in the HGB 
area for NNSR will be automatically altered upon finalization of the 
redesignation substitute.
    We previously approved a HGB area redesignation substitute for the 
revoked 1-hour ozone standard (80 FR 63429). In this action, we are 
also finalizing a non-substantive technical correction to 40 CFR 81.344 
to reflect this approval.
    We received comments on the proposal from five commenters. Our 
response to the comments are below.

II. Response to Comments

    Comment: Three commenters recognized the progress of the area and 
the work of TCEQ in making such significant air quality improvements in 
the HGB area and urged the EPA to finalize this action to reflect the 
changes in the area.
    Response: We agree with the commenters that HGB area has made 
progress in meeting air quality standards. No changes were made to the 
final action based on these comments.
    Comment: One of the supportive commenters urged the EPA to approve 
revisions to the Texas SIP to reflect changes to certain provisions for 
the NNSR program effective in the HGB area as a result of the EPA's 
approval of the

[[Page 78692]]

redesignation substitute. The commenter also asserted that approval of 
the redesignation substitute will result in the area no longer being 
subject to any remaining applicable anti-backsliding requirements.
    Response: Due to the drafting of the Texas SIP, no revision is 
necessary to alter NNSR requirements applicable in the HGB area 
following finalization of this redesignation substitute. The NNSR 
provisions in the existing Texas SIP contains a provision that cross-
references the designation of the area to 40 CFR part 81. See 30 TAC 
section 101.1(71). Because of the structure of this provision, the 
identification of an area's classification, and thus the related major 
source thresholds and offset ratios, is updated without any additional 
revision to the SIP. Therefore, the EPA's approval of the redesignation 
substitute automatically updates the applicable NNSR requirements. 
Following finalization of this rule, the NNSR requirements applicable 
in the HGB area will be in accordance with the HGB area's current 
classification for the 2008 ozone NAAQS for newly permitted sources.\1\ 
We note that approval of this redesignation substitute does not relieve 
sources in the area of their obligations under previously established 
permit conditions.\2\ 81 FR 33161, 33165. The Texas SIP includes a 
suite of approved permitting regulations for the Minor and Major NSR, 
which will continue to apply after approval of the redesignation 
substitute in the HGB area. Each of these programs has been evaluated 
and approved by EPA as consistent with the requirements of the CAA and 
protective of air quality, including the requirements at 40 CFR 51.160 
whereby the TCEQ cannot issue a permit or authorize an activity that 
will result in a violation of applicable portions of the control 
strategy or that will interfere with attainment or maintenance of a 
national standard. So moving forward to a time when the HGB area has a 
marginal designation as the only applicable nonattainment designation, 
new sources and modifications will continue to be permitted and 
authorized under the existing SIP requirements if they are determined 
to be protective of air quality. We would also note that EPA has 
proposed to reclassify Houston from marginal to moderate for the 2008 
ozone NAAQS. 81 FR 66240, September 27, 2016.
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    \1\ See Section D of the TSD for this action in the docket for 
this rulemaking for additional information.
    \2\ See Final Implementation Rule for 2008 Ozone Standard, 80 FR 
12264, at 12299, footnote 83 and at 12304, footnote 91.
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    The EPA agrees that approval of the redesignation substitute will 
result in the HGB area no longer being subject to the regulatory anti-
backsliding requirements for the 1997 ozone standard established 
pursuant to the principles of CAA section 172(e). However, if an anti-
backsliding provision is in the Texas SIP and needs to be changed to 
reflect the change in this area's status, such change is subject to the 
SIP revision process, which in turn is subject to review under CAA 
sections 110 and 193, if applicable. To date, Texas has not submitted a 
SIP revision concerning any anti-backsliding provisions for the EPA's 
consideration.
    Comment: One commenter also recognized the progress and supported 
the action but wanted the EPA to clarify that the redesignation 
substitute will permanently eliminate the anti-backsliding requirements 
for the revoked ozone NAAQS.
    Response: Following finalization of a redesignation substitute, an 
area is no longer subject to any remaining applicable anti-backsliding 
requirements associated with the specific revoked NAAQS, including the 
major source thresholds and offset ratios associated with the area's 
classification under those standards. However, as noted previously, any 
changes to a SIP are subject to consistency checks with CAA sections 
110(l) and 193, if applicable. Because the 1997 ozone NAAQS has been 
revoked, no new requirements associated with that NAAQS would come due 
at any future date.
    Comment: One commenter objected to the use of the redesignation 
substitute mechanism and the implications of such an action. The 
commenter incorporates by reference the relevant portions of a brief 
filed in a petition challenging the EPA's promulgation of the 
redesignation substitute. See South Coast Air Quality Mgmt. Dist. v. 
EPA, No. 15-1115 (D.C. Cir.). They contend that the HGB area continues 
to have unhealthy levels of ozone pollution, therefore, raising the 
NNSR thresholds and lowering the offset requirements for the area is 
inappropriate. The commenter further states that our action will result 
``in great expense and inefficiency: because some sources will not 
prevent pollution, they and other sources may have to retrofit at 
greater expense.'' The commenter asks the EPA to either disapprove the 
redesignation substitute or delay action until the underlying 
litigation is resolved.
    Response: The EPA disagrees with the commenter that it is 
inappropriate to approve redesignation substitutes for the Houston-
Galveston-Brazoria area for the 1997 ozone standard. As the commenter 
noted, the EPA created the redesignation substitute in the 2008 ozone 
SIP Requirements Rule as one of two acceptable procedures through which 
a state may demonstrate that it is no longer required to adopt any 
additional applicable requirements for an area which have not already 
been approved into the SIP for a revoked ozone NAAQS. 80 FR 12264, 
12304 (March 6, 2015).
    The EPA acknowledges that this rule has been challenged in the D.C. 
Circuit by the commenter. However, the rule has not been stayed pending 
resolution of the litigation, and as such, it is appropriate to 
continue to implement the 2008 ozone SIP Requirements Rule during the 
pendency of the litigation.
    The EPA believes the redesignation substitute is an appropriate 
mechanism because it serves as a successor to a redesignation to 
attainment, for which these areas would have been eligible if the EPA 
had not revoked the 1-hour and 1997 ozone standards. For a more 
detailed description of why the EPA has determined the HGB area has met 
the redesignation criteria for the revoked 1997 ozone standard, see 81 
FR 33166 for the proposal and Technical Support Document. Upon approval 
of a redesignation substitute, a state may request to revise its SIP to 
shift regulatory anti-backsliding requirements contained in the active 
portion of the SIP to the contingency measures portion of the SIP, 
subject to a showing of consistency with the general anti-backsliding 
checks in CAA sections 110(l) and 193 (if applicable). The EPA approval 
of the redesignation substitute has the same effect on these areas' 
nonattainment regulatory anti-backsliding requirements as would a 
redesignation to attainment for the revoked standard. The EPA believes 
that, under any view of anti-backsliding for a revoked standard, it 
should not mean imposing requirements greater than those that would 
apply if the standard had not been revoked.
    An approvable redesignation substitute must include more than a 
determination of attainment of the prior NAAQS, and show that it 
addresses redesignation criteria for that NAAQS. Moreover, the state 
remains subject to ongoing requirements to meet the new more stringent 
2008 ozone standard in that area. In this context, the EPA believes 
finalizing this action is appropriate--it recognizes and supports 
Texas's progress in having attained the

[[Page 78693]]

prior standards in the HGB area due to permanent and enforceable 
emissions reductions, and reinforces continued attainment by 
demonstrating that the HGB area can maintain the revoked standard. See 
80 FR 12264, 12305.

III. Final Action

    We find that Texas has successfully demonstrated it has met the 
requirements for approval of a redesignation substitute for the revoked 
1997 8-hour ozone NAAQS for the HGB area. We are approving the 
redesignation substitute for the HGB area based on our determination 
that the demonstration provided by the State of Texas shows that the 
HGB area has attained the revoked 1997 8-hour ozone NAAQS due to 
permanent and enforceable emission reductions, and that it will 
maintain that NAAQS for ten years from the date of the EPA's approval 
of this demonstration. As we no longer redesignate nonattainment areas 
to attainment for the revoked 1997 8-hour ozone NAAQS, approval of the 
demonstration serves as a redesignation substitute under the EPA's 
implementing regulations. As a result of this action, Texas is no 
longer required to adopt any additional applicable 1997 8-hour ozone 
NAAQS requirements for the area which have not already been approved 
into the SIP (40 CFR 51.1105(b)(1)). It also allows the state to 
request that the EPA approve the shifting of planning and control 
requirements implemented pursuant to the 1997 ozone NAAQS from the 
active portion of the SIP to the contingency measures portion of the 
SIP, upon a showing of consistency with CAA sections 110(l) and 193 (if 
applicable) (40 CFR 51.1105(b)(2)).
    We are also finalizing a non-substantive technical correction to 40 
CFR 81.344 (Section 107 Attainment Status Designations for Texas) to 
reflect our previous approval of a HGB area redesignation substitute 
demonstration for the revoked 1-hour ozone standard.

IV. Statutory and Executive Order Reviews

    Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 
13563 (76 FR 3821, January 21, 2011), this action is not a 
``significant regulatory action'' and therefore is not subject to 
review by the Office of Management and Budget. For this reason, this 
action is also not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001). This action merely 
approves a demonstration provided by the State of Texas and finds that 
the HGB area is no longer subject to the regulatory anti-backsliding 
requirements under the principles of CAA section 172(e) for the revoked 
1997 8-hour ozone NAAQS; and imposes no additional requirements. 
Accordingly, I certify that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule 
does not impose any additional enforceable duties, it does not contain 
any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4). This rule also does not have a substantial direct 
effect on one or more Indian Tribes, on the relationship between the 
Federal Government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
nor will it have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999), because it merely approves a demonstration provided by the 
State of Texas and find that the HGB area is no longer subject to the 
regulatory anti-backsliding requirements under the principles of CAA 
section 172(e) for the revoked 1997 8-hour ozone NAAQS; and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. This rule also is not subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is 
not economically significant.
    The rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). Additionally, this rule does not involve establishment of 
technical standards, and thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply.
    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. The EPA has determined that this rule 
will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not affect the level of protection provided to human health or the 
environment.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 9, 2017. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control.

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

    Dated: October 27, 2016.
Samuel Coleman,
Acting Regional Administrator, Region 6.

    40 CFR parts 52 and 81 are amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. Section 52.2275 is amended by adding paragraph (n) to read as 
follows:

Sec.  52.2275  Control strategy and regulations: Ozone.

* * * * *
    (n) Approval of Redesignation Substitute for the Houston-Galveston-
Brazoria 1997 Ozone Nonattainment Area. EPA has approved the 
redesignation substitute for the Houston-Galveston-Brazoria 1997 ozone 
NAAQS nonattainment area submitted by the State of Texas on August 18,

[[Page 78694]]

2015. The State is no longer being required to adopt any additional 
applicable 1997 ozone NAAQS requirements for the area.

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

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

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

0
4. Section 81.344 is amended:
0
a. In the table for ``Texas--Ozone (1-Hour Standard)'' by revising the 
entries for ``Houston-Galveston-Brazoria, TX'' and revising footnote 4; 
and
0
b. In the table for ``Texas--1997 8-Hour Ozone NAAQS (Primary and 
Secondary)'' by revising the entries for ``Houston-Galveston-Brazoria, 
TX'' and adding footnote 7.
    The revisions and additions read as follows:

Sec.  81.344  Texas.

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                                                                    Texas--Ozone \2\
                                                                   [11-Hour standard]
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                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date \1\                      Type                      Date \1\                      Type
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                                                                      * * * * * * *
Houston-Galveston-Brazoria Area, TX:
    Brazoria County \4\.................  ...........  Nonattainment............................     11/15/90  Severe-17.
    Chambers County \4\.................  ...........  Nonattainment............................     11/15/90  Severe-17.
    Fort Bend County \4\................  ...........  Nonattainment............................     11/15/90  Severe-17.
    Galveston County \4\................  ...........  Nonattainment............................     11/15/90  Severe-17.
    Harris County \4\...................  ...........  Nonattainment............................     11/15/90  Severe-17.
    Liberty County \4\..................  ...........  Nonattainment............................     11/15/90  Severe-17.
    Montgomery County \4\...............  ...........  Nonattainment............................     11/15/90  Severe-17.
    Waller County \4\...................  ...........  Nonattainment............................     11/15/90  Severe-17.
 
                                                                      * * * * * * *
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\1\ This date is October 18, 2000, unless otherwise noted.
\2\ The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Texas except the San Antonio area where it is revoked effective April
  15, 2009.
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\4\ A Redesignation Substitute was approved on October 20, 2015.

* * * * *

                                                             Texas--1997 8-Hour Ozone NAAQS
                                                                 [Primary and secondary]
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                                                              Designation \a\                                         Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date\1\                       Type                      Date \1\                      Type
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                                                                      * * * * * * *
Houston-Galveston-Brazoria, TX:
    Brazoria County \7\.................  ...........  Nonattainment............................        (\4\)  Subpart 2/Severe 15.
    Chambers County \7\.................  ...........  Nonattainment............................        (\4\)  Subpart 2/Severe 15.
    Fort Bend County \7\................  ...........  Nonattainment............................        (\4\)  Subpart 2/Severe 15.
    Galveston County \7\................  ...........  Nonattainment............................        (\4\)  Subpart 2/Severe 15.
    Harris County \7\...................  ...........  Nonattainment............................        (\4\)  Subpart 2/Severe 15.
    Liberty County \7\..................  ...........  Nonattainment............................        (\4\)  Subpart 2/Severe 15.
    Montgomery County \7\...............  ...........  Nonattainment............................        (\4\)  Subpart 2/Severe 15.
    Waller County \7\...................  ...........  Nonattainment............................        (\4\)  Subpart 2/Severe 15.
 
                                                                      * * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
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\4\ Effective October 31, 2008.
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\7\A Redesignation Substitute was approved on November 8, 2016.

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[FR Doc. 2016-26586 Filed 11-7-16; 8:45 am]
 BILLING CODE 6560-50-P
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