27514 Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 

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 in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Nitrogen dioxide, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

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

Dated: May 5, 2010. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2010–11679 Filed 5–14–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R06–OAR–2008–0932; FRL–9151–7] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Texas; Beaumont/Port 

Arthur Ozone Nonattainment Area: 

Redesignation to Attainment for the 

1997 8-Hour Ozone Standard and 

Determination of Attainment for the 1- 

Hour Ozone Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a request from the State of Texas to 

redesignate the Beaumont-Port Arthur 

(BPA) Texas ozone nonattainment area 

to attainment of the 1997 8-hour ozone 

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, qualityassured, 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 1-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 of the BPA SIP and to 

conclude that if this action is finalized, 

the area is meeting all of its applicable 

marginal area requirements for purposes 

of redesignation for the 1997 8-hour 

ozone NAAQS. EPA also is proposing to 

approve as part of the BPA SIP, the 

Texas Clean-Fuel Vehicle (CFV) 

Program Equivalency Demonstration. 

EPA is proposing to find that if these 

proposed approvals are finalized, the 

area will have a fully approved SIP that 

meets all of its applicable 1997 8-hour 

requirements and 1-hour antibacksliding requirements under section 

110 and Part D of the federal Clean Air 

Act (CAA or Act) for purposes of 

redesignation. 

Additionally, EPA is proposing to 

approve the post-1996 Rate of Progress 

(ROP) plan’s contingency measures, the 

substitute control measures for the 

failure-to-attain contingency measures, 

and the removal from the Texas SIP of 

the 1-hour ozone failure-to-attain 

contingency measure, a VOC SIP rule 

for marine vessel loading, as meeting 

the requirements of section 110(l) and 

part D of the Act. 

DATES: Comments must be received on 

or before June 16, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2008–0932, by one of the 

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 a.m. and 4 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–OAR–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. The 

www.regulations.gov Web site 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 of the 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. If EPA 

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 of 

special 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 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 27515 

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 documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal, which is part of 

the 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 (6PD– 

L), 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 of Contents 

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 1-hour ozone NAAQS? 

D. What is the background for the BPA area 

under the 1997 8-hour ozone NAAQS? 

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 

B. Summary of EPA’s Analysis of the 

Impact of the 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 1-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 1-hour 

ozone NAAQS? 

VI. Does the BPA area have a fully approved 

SIP under section 110(k) for the section 

110 and part D requirements of the CAA 

applicable for purposes of redesignation? 

A. What are the general SIP requirements 

applicable for purposes of redesignation 

for the BPA area? 

B. What are the part D requirements 

applicable for purposes of redesignation 

for the BPA area? 

1. What are the part D requirements 

applicable for purposes of redesignation 

for the BPA area under the 1-hour ozone 

standard? 

2. What are the part D requirements 

applicable for purposes of redesignation 

for the BPA area under the 1997 8-hour 

ozone standard? 

C. Does the BPA area have a fully approved 

applicable SIP under section 110(k) of 

the CAA for purposes of redesignation? 

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 of the 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 

of the ozone standard in the BPA area? 

D. Monitoring Network 

E. Verification of Continued 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? 

B. What is the status of EPA’s adequacy 

determination? 

C. Is the MVEB approvable? 

X. EPA’s Evaluation of the Backfill 

Contingency Measures for the 1-Hour 

Ozone Failure-To-Attain 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) of the Act, and is 

therefore proposing to approve a request 

from the State of Texas to redesignate 

the BPA area to attainment of the 1997 

8-hour ozone standard. EPA is also 

proposing to approve, pursuant to 

section 175A of the 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 of the 

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 VI.B.2. and the 

Technical Support Document (TSD), 

Part I.A., for further information on how 

the BPA area satisfies all the other 

marginal area requirements. 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 1-hour ozone 

standard. With the approval of the 

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 of redesignation. For further 

information on how the area meets the 

serious area requirements apart from the 

CFV Program, please see Section VI.B.1. 

and the TSD, Part II.A. Further, EPA is 

proposing to make a determination that 

the BPA area is meeting the 1-hour 

ozone standard. 

Finally, EPA is proposing to approve 

the 1-hour ozone post-1996 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 of the contingency 

measure, a VOC SIP rule for marine 

vessel loading, as meeting the 

requirements of section 110(l) and part 

D. Each component of this 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, 

quality-assured 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 of the requirements for 

approving a redesignation request, EPA 

is proposing to approve as a revision to 

the Texas SIP, the State’s maintenance 

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27516 Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 

plan for the BPA area as meeting the 

requirements of section 175A. EPA also 

is proposing to approve the 2002 base 

year emissions inventory for the BPA 

area as meeting a requirement of the Act 

for a marginal 1997 8-hour ozone area, 

section 182(a)(1). Additionally, we are 

proposing to approve the Texas CFV 

Program Equivalency Demonstration as 

meeting the serious area requirements of 

the Act for the 1-hour ozone standard. 

With the approval of the 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 1-hour anti-backsliding 

requirements of section 110 and part D 

of the Act for purposes of redesignation, 

and that the BPA area has a fully 

approved SIP under section 110(k) for 

purposes of redesignation. 

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 of the 1997 8-hour ozone 

standard. If EPA’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 1-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 1-hour 

ozone standard. This determination is 

based on complete, quality-assured and 

certified ambient air quality monitoring 

data for the 2005–2007 and 2006–2008 

monitoring periods which demonstrate 

that the 1-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 1-hour serious area 

attainment demonstration and RACM 

determination and contingency 

measures will be suspended if EPA’s 

proposal to determine that the area has 

attained the 1-hour standard is 

finalized, and the area will be relieved 

of these 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 1-hour 

contingency measures are suspended 

upon a determination that the area is 

attaining the 1-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-1996 ROP plan’s 

contingency measures and the backfill 

failure-to-attain contingency measures. 

EPA is proposing this action on the 

contingency measures because the State 

is requesting that an existing SIPapproved 1-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 of the failure-toattain contingency measure, a VOC SIP 

rule for marine vessel loading, as 

meeting the requirements of section 

110(l) and part D. 

II. What is the background for these 

actions? 

A. What are the National Ambient Air 

Quality Standards? 

Section 109 of the 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 primary 

and secondary standard for each 

NAAQS. The primary standard is 

designed to protect human health with 

an adequate margin of safety, 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 of the 

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 of three 

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 

of sunlight and high ambient 

temperatures. NOX and VOCs are 

referred to as precursors of ozone. Motor 

vehicle exhaust and industrial 

emissions, gasoline vapors, and 

chemical solvents all contain NOX and 

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. 

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 1-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 

1-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 1-hour ozone 

standard by the moderate area deadline, 

and reclassified the BPA area by 

operation of law, to serious 

nonattainment for the 1-hour ozone 

standard. See 61 FR 16483. As a result 

of its reclassification to serious, the 

State was required, among other things, 

to submit by April 29, 2005, a new 1- 

hour attainment demonstration SIP with 

an attainment date of November 15, 

2005 with new MVEBs and a new 

RACM analysis, a post-1996 rate of 

progress (ROP) plan with associated 

MVEBs and contingency measures, a 

new clean-fuel vehicle program or 

substitute, demonstrate the area met 

RACT, implement the EPA-triggered 

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Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 27517 

1On March 27, 2008 (73 FR 16436), EPA 

promulgated a revised 8-hour ozone standard of 

0.075 ppm. On January 6, 2010, EPA proposed to 

set the level of the primary 8-hour ozone standard 

within the range of 0.060 to 0.070 ppm, rather than 

at 0.075 ppm. EPA anticipates that by August 2010 

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. 

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) of the 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 of the 1-hour serious area 

requirements for the BPA area, except 

for the CFV program, the ROP plan’s 

contingency measures, the replacement 

failure-to-attain contingency measures, 

and the attainment demonstration SIP 

with associated MVEBs and RACM 

analysis. See Section VI.B.1. 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 1-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 1-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 of the 1997 8-hour 

ozone NAAQS by the June 15, 2007 

deadline, based upon complete, qualityassured and certified ambient air quality 

monitoring data for the 2004–2006 

ozone seasons. The BPA area already 

met all of the 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 standard by the applicable 

attainment deadline and the area was 

reclassified by operation of law 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 of 

requirements 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 of 

the 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 of the DC 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 22, 2006, June 8, 

2007, and July 10, 2009, decisions 

impose no impediment to moving 

forward with redesignation of this area 

to attainment of the 1997 8-hour ozone 

NAAQS. 

EPA published a first phase rule 

governing implementation of the 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 1-hour NAAQS; how antibacksliding principles will ensure 

continued progress toward attainment of 

the 1997 8-hour NAAQS; attainment 

dates; and the timing of emissions 

reductions needed for attainment. The 

Phase 1 Rule revoked the 1-hour ozone 

standard. The Phase 1 Rule also 

provided that 1-hour ozone 

nonattainment areas are required to 

adopt and implement ‘‘applicable 

requirements’’ according to the area’s 

classification under the 1-hour ozone 

standard for anti-backsliding purposes. 

See 40 CFR 51.905(a)(i). On May 26, 

2005, we determined that an area’s 1- 

hour designation and classification as of 

June 15, 2004 would dictate what 1- 

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 of Columbia 

Circuit vacated EPA’s Phase 1 Rule in 

South Coast Air Quality Management 

Dist. v. EPA, 472 F.3d 882 (DC 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 

of the rule that had been successfully 

challenged. See 489 F.3d 1245 (DC Cir. 

2007), cert. denied, 128 S.Ct. 1065 

(2008). By limiting the vacatur, the 

Court let stand EPA’s revocation of the 

1-hour standard and those antibacksliding provisions of the 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 1- 

hour nonattainment areas under the 

anti-backsliding provisions of the 

regulations: (1) Nonattainment area new 

source review (NSR) requirements based 

on an area’s 1-hour nonattainment 

classification; (2) section 185 penalty 

fees for 1-hour severe or extreme 

nonattainment areas that fail to attain 

the 1-hour standard by the 1-hour 

attainment date; and (3) measures to be 

implemented pursuant to section 

172(c)(9) or 182(c)(9) of the Act, on the 

contingency of an area not making 

reasonable further progress toward 

attainment of the 1-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 1-hour 

motor vehicle emissions budgets until 8- 

hour budgets were available for 8-hour 

conformity determinations. 

EPA published a second rule 

governing implementation of the 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 DC 

Circuit upheld the Clean Data Policy, 

agreeing with the Tenth Circuit that 

EPA’s interpretation of the Act was 

reasonable. NRDC v. EPA, 571 F.3d 

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1245 (DC Cir. 2009). See Sierra Club v. 

EPA, 99 F.3d 1551 (10th Cir. 1996). 

B. Summary of EPA’s Analysis of the 

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 of the 

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 those areas 

classified under subpart 2 for the eighthour 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 of the area’s classification for the 

one-hour ozone NAAQS. 

The provisions in 40 CFR 51.905(a)– 

(c) explain the applicable 1-hour ozone 

anti-backsliding requirements that 

remain in effect. Areas must continue to 

meet those requirements to be 

redesignated. However, the court 

vacated the portions of 51.905(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 1-hour anti-backsliding 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 1-hour nonattainment area 

was reclassified as serious for that 

standard on June 15, 2004, so the 1-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 

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 cleanfuel 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 of the required 

1-hour serious area plan requirements. 

EPA has approved each of the 1-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 1-hour ROP plan’s 

contingency measures, backfill failureto-attain contingency measures, and 

attainment demonstration with a RACM 

demonstration would be suspended by 

a determination of attainment of the 1- 

hour ozone standard, and will cease to 

apply upon redesignation of the area for 

the 8-hour standard. The 1-hour antibacksliding 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 of significant 

deterioration (PSD) SIP. 

EPA is proposing to approve the 

following outstanding 1-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 failureto-attain contingency measures. EPA has 

taken no action on the submitted 

attainment demonstration with the 

RACM analysis and serious 1-hour 

ozone NSR requirements. In lieu of 

nonattainment NSR, the BPA area will 

become subject to PSD upon 

redesignation. 

For the BPA 1-hour ozone serious 

nonattainment area, EPA previously 

approved VOC 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-1996 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 1-hour ozone 

anti-backsliding serious area 

requirement for the area. We also are 

proposing to approve the post-1996 ROP 

plan’s contingency measures and the 

backfill failure-to-attain contingency 

measures. The obligation to submit a 1- 

hour serious area attainment 

demonstration and RACM analysis and 

contingency measures will be 

suspended if EPA’s proposal to 

determine that the area has attained the 

1-hour standard is finalized, and the 

area will be relieved of these 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 

107(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 110(k); (3) the 

Administrator determines that the 

improvement in air quality is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the 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 of CAA 

section 175A; and (5) the State 

containing such area has met all 

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 of the 

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 

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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; 

7. ‘‘State Implementation Plan (SIP) 

Requirements for Areas Submitting Requests 

for Redesignation to Attainment of the 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 of Actual 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 of Air Quality 

Planning and Standards, May 10, 1995. 

V. What is EPA’s proposed 

determination degarding attainment for 

the 1997 8-hour and the 1-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 if the 3-year average of the 

annual fourth highest daily maximum 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 if the 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 of the monitoring period 

required for demonstrating attainment. 

For ease of communication, many 

reports of ozone concentrations are 

given in parts per billion (ppb); ppb = 

ppm × 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 of the 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 of the nine monitors for 

that year.) The location of each 

monitoring site in the BPA area is 

shown on the map entitled, ‘‘BPA ozone 

and ozone precursor monitoring 

network’’ included in the docket 

associated with this action. 

TABLE 1—BPA AREA FOURTH HIGHEST 8-HOUR OZONE CONCENTRATIONS AND DESIGN VALUES DATA FOR ALL

MONITORS (PPM) 1234

BPA monitor site 

4th Highest daily max Design values three year averages 

2005 2006 2007 2008 2009 2005–2007 2006–2008 2007–2009 

Lamar (48–245–0009) ..................... 0.081 0.085 0.080 0.072 0.071 0.082 0.079 0.074 

Port Arthur (48–245–0011) .............. 0.079 0.085 0.073 0.071 0.073 0.079 0.076 0.072 

Sabine Pass (48–245–0101) ........... 0.082 0.084 0.078 0.069 0.073 0.081 0.077 0.073 

Hamshire (48–245–0022) ................ 0.080 0.081 0.077 0.070 0.070 0.079 0.076 0.072 

West Orange (48–361–1001) .......... 0.078 0.078 0.073 0.064 0.073 0.076 0.071 0.070 

Mauriceville (48–361–1100) ............. 0.076 0.071 0.075 0.069 0.067 0.074 0.071 0.070 

Jefferson Co. Airport (48–245–0018) 0.083 0.084 0.082 0.078 0.071 0.083 0.081 0.077 

SETRPC Port Arthur (48–245–0628) 0.078 0.082 0.076 0.065 0.069 0.078 0.074 0.070 

Nederland (48–245–1035) 4 ............. .................. 0.068 0.082 0.067 0.069 .................. 0.072 0.072 

1 Unlike for the 1-hour ozone standard, design value calculations for the 1997 8-hour ozone standard are based on a rolling three-year average 

of the 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 of March 26, 2010). 

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

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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—BPA AREA FOURTH HIGHEST 8-HOUR OZONE CONCENTRATIONS AND DESIGN VALUES DATA SUMMARY

(PPM) 123

BPA area overall 

4th highest daily max Design values three-year averages 

2005 2006 2007 2008 2009 2005–2007 2006–2008 2007–2009 

0.083 0.084 0.082 0.078 0.071 0.083 0.081 0.077 

1 Unlike for the 1-hour ozone standard, design value calculations for the 8-hour ozone standard are based on a rolling three-year average of 

the 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). 

3The 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 

ozone design value for 2005–2007, and 

also for 2006–2008, which is based on 

a three-year average of the fourthhighest 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 of the 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 through 2007, as 

well as monitoring data for the three 

years 2006 through 2008 and 

preliminary monitoring data for 2009, 

show continued attainment of the 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. In summary, EPA is proposing 

to determine that complete, qualityassured data for the 2005–2007 and 

2006–2008 ozone seasons show that the 

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 1-hour 

ozone NAAQS? 

EPA is also proposing to determine 

that the BPA 1-hour ozone 

nonattainment area is currently 

attaining the 1-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 of the 1-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 

1-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 × 1000. Thus, 0.12 ppm becomes 

120 ppb or 124 ppb when rounding is 

considered. 

An area exceeds the 1-hour ozone 

standard each time an ambient air 

quality monitor records a 1-hour average 

ozone concentration above 0.12 ppm in 

any given day. Only the highest 1-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 1-hour primary and 

secondary ambient air quality standards 

for ozone’’ (40 CFR 50.9) and 

‘‘Interpretation of the 1-Hour Primary 

and Secondary National Ambient Air 

Quality Standards for Ozone’’ (40 CFR 

Part 50, Appendix H). 

The fourth-highest daily ozone 

concentration over a 3-year period is 

called the design value (DV). The DV 

indicates the severity of the 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 of the 

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 1-hour ozone standard, 

generally based on air quality 

monitoring data from the 1987 through 

1989 period (section 107(d)(4) of the 

Act; 56 FR 56694, November 6, 1991). 

EPA is proposing to determine that 

the BPA 1-hour ozone nonattainment 

area is currently in attainment of the 1- 

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 of the 1-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 1-hour ozone standard. 

Table 3 contains the 1-hour ozone data 

for the BPA 1-hour ozone nonattainment 

area monitors that show that the area is 

currently attaining the 1-hour ozone 

NAAQS, consistent with 40 CFR Part 

50, Appendix H. 

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TABLE 3—BEAUMONT-PORT ARTHUR AREA 1-HOUR OZONE DATA 1 2

BPA Monitor site 

Number of exceedances 3-year exceedances Design values (ppb) 

2005 2006 2007 2008 2009 2005– 

2007 

2006– 

2008 

2007– 

2009 

2005– 

2007 

2006– 

2008 

2007– 

2009 

Lamar (48–245–0009) ............................................ 0 0 0 0 0 0 0 0 106 106 98 

Port Arthur (48–245–0011) .................................... 0 0 0 0 0 0 0 0 104 101 93 

Sabine Pass (48–245–0101)2 ................................ 1.2 0 0 0 0 0.4 0 0 107 102 96 

Hamshire (48–245–0022) ...................................... 0 0 0 0 0 0 0 0 97 97 95 

West Orange (48–361–1001) ................................ 0 0 0 0 0 0 0 0 99 100 100 

Mauriceville (48–361–1100) ................................... 0 0 0 0 0 0 0 0 96 96 87 

Jefferson Co. Airport (48–245–0018) .................... 0 0 0 0 0 0 0 0 104 102 99 

SETRPC Port Arthur (48–245–0628) .................... 0 0 0 0 0 0 0 0 98 98 95 

Nederland (48–245–1035) ..................................... 0 0 0 0 0 0 93 93 

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

2For 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 1- 

hour ozone nonattainment area has 

attained the 1-hour ozone standard. 

VI. Does the BPA area have a fully 

approved SIP under section 110(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 long-held position is that those 

requirements expressly linked by 

statutory language with the attainment 

and reasonable further progress 

requirements do not apply if EPA 

determines that the area is attaining the 

standard. Additionally, it is EPA’s 

interpretation of CAA section 

107(d)(3)(E) that applicable 

requirements of the 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 of the 

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 of Detroit-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 of the 

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 enunciated in the General 

Preamble and pursuant to 40 CFR 

51.918, if that determination is 

finalized, then the obligations to submit 

requirements related to attainment and 

RFP are not applicable for purposes of 

redesignation. 

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 of 

section 172(c)(1) of the Act, the 

reasonable further progress (RFP) and 

attainment demonstration requirements 

of sections 172(c)(2) and (6) and 

182(b)(1) of the Act, and the 

requirement for contingency measures 

of section 172(c)(9) of the 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 of 

redesignations, EPA has interpreted 

requirements related to attainment as 

not applicable for purposes of 

redesignation. 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 175A for maintenance 

plans * * * provides specific requirements 

for contingency measures that effectively 

supersede the requirements of section 

172(c)(9) for these areas. [General Preamble 

for the ‘‘Interpretation of Title I of the 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 

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 1-hour ozone antibacksliding obligation for purposes of 

redesignation. Furthermore, EPA is 

proposing to find that upon final 

approval of these 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 of 

redesignation 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 of the 

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) of title 

I of the 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 

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transport of air pollutants (NOX SIP 

Call). Texas submitted a SIP revision to 

address interstate transport on May 1, 

2008. The purpose of that SIP revision 

was to document that emissions from 

Texas’ sources that may contribute to 

nonattainment in another state have 

been mitigated through existing control 

strategies. However, CAA section 

110(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 of the designation of 

any one particular area in the state. 

Thus, we do not believe that these 

requirements should be construed to be 

applicable requirements for purposes of 

redesignation. 

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 of 

redesignation. 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 of 

the CAA to the extent they are 

applicable for purposes of 

redesignation. EPA has previously 

approved provisions of the Texas SIP 

addressing section 110 elements under 

the 1-hour ozone standard (40 CFR 

52.2270–.2280). Further, in a certified 

letter dated April 4, 2008 (a copy of this 

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 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 of 

redesignation under part D of the Act for 

both the 1-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 of the 

requirements for an approved emissions 

inventory and the CFV program 

Equivalency Demonstration, which we 

are proposing to approve in this 

rulemaking. Upon final approval of 

these requirements, the BPA area will 

meet all of the requirements applicable 

to the area for purposes of redesignation 

under part D of the Act. 

The 1-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 1-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 of the 

one-hour ozone NAAQS for former onehour 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(f), except as provided in 

paragraph (a)(1)(iii) of this section and 

except as provided in paragraph (b) of 

this section. 

Section 51.900(f), as amended by 70 

FR 30592, 30604 (May 26, 2005), 

provides that: 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) of the CAA for the one-hour 

NAAQS at the time of designation for 

the eight-hour NAAQS, remain in effect: 

(1) Reasonably available control 

technology (RACT). 

(2) Inspection and maintenance 

programs (I/M). 

(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) of the CAA. 

(7) Clean fuels for boilers under 

section 182(e)(3) of the CAA. 

(8) Transportation Control Measures 

(TCMs) during heavy traffic hours as 

provided under section 182(e)(4) of the 

CAA. 

(9) Enhanced (ambient) monitoring 

under section 182(c)(1) of the CAA. 

(10) TCMs under section 182(c)(5) of 

the CAA. 

(11) Vehicle Miles Travelled (VMT) 

provisions of section 182(d)(1) of the 

CAA. 

(12) NOX requirements under section 

182(f) of the 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(f), the State 

must also comply with the additional 1- 

hour anti-backsliding requirements 

discussed in the Court’s decisions in 

South Coast Air Quality Management 

Dist. v. EPA: (1) NSR requirements 

based on the area’s 1-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) of the 

CAA for areas not making reasonable 

further progress toward attainment of 

the 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 of the 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 

of November 15, 2007. In reviewing the 

State of Texas’ 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 of Texas have satisfied all antibacksliding CAA requirements 

applicable to a serious one-hour ozone 

nonattainment area for purposes of 

redesignation, except for the CFV 

program or an acceptable substitute 

under section 183(c)(4) of the 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. 

40 CFR 51.905 (1) and (3). RACT and 

Major source applicability cut-offs for 

purposes of RACT. EPA found that the 

BPA area met the serious area VOC and 

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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 of 

the SIP revision submittal, PSD applies in the area. 

NOX RACT requirements for the 1-hour 

standard on July 10, 2009 (74 FR 33146). 

This action also approved Texas’ 

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 1-hour ozone serious RACT 

requirements for the BPA area. 

40 CFR 51.905 (2). Inspection and 

maintenance programs (I/M). There is 

no requirement for the BPA area to have 

an I/M program. The Federal I/M 

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 I/M program (60 FR 

48033, September 18, 1995). 

40 CFR 51.905 (4). Rate of progress 

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 1-hour ozone 

nonattainment area. This plan covered 

the 3-year periods of 1997–1999, 2000– 

2002, and 2003–2005, 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) Clean fuels for 

boilers under section 182(e)(3) of the 

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 provided under section 

182(e)(4) of the 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)(1) of the CAA. EPA approved the 

Texas SIP revision for enhanced 

ambient monitoring on October 4, 1994 

(59 FR 50504) as meeting section 

182(c)(1) of the 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) of the 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-of-Progress 

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 of the 

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 of section 

182(d)(1) of the 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) of the 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 51.905(a)(1)(ii). 

Texas elected the option to submit an 8- 

hour ozone attainment demonstration 

SIP to demonstrate attainment of the 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 longheld 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 1-hour ozone standard, and for that 

reason as well, if the determination is 

finalized, the area would not be 

obligated to submit a 1-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.2

Consequently, EPA concludes that an 

approved NSR program is not an 

applicable requirement for purposes of 

redesignation. See the more detailed 

explanations of this 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 (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) of the 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 1-hour ozone 

contingency measures for the BPA area 

on February 10, 1998 at 63 FR 6659 as 

part of EPA’s approval of the BPA area’s 

1-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 1-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 of those 

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 of the applicable 1- 

hour ozone requirements and EPA’s 

approval actions, see Part II.A. of the 

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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 of the Texas 

submittals and EPA’s proposed action 

follows. More detail on the contents of 

the 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 of title II, 

or implement a substitute for the 

program that demonstrates equivalent 

long-term reductions in ozoneproducing 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 Low Emission Vehicle 

(LEV) standards. See EPA Dear 

Manufacturer Letter CCD–05–12 (LDV/ 

LDT/MDPV/HDV/HDE/LD–AFC) (July 

21, 2005). 

(ii) What are the CFV program 

requirements for the BPA area? 

The March 30, 2004, reclassification 

of the 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 heavy-duty 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 of 

the 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 

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) of the 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 of the 

CFV Program in the BPA nonattainment 

area. This approval is supported by the 

determination made by EPA that the use 

of the 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 if the 

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 of July 2005, EPA 

had determined that beginning with the 

2006 model year the Tier II and heavyduty 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 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 II.A. for further 

discussion of this requirement. 

As noted above, with the exception of 

the CFV program, the BPA area 

currently has an approved SIP for all the 

1-hour ozone anti-backsliding 

requirements applicable for purposes of 

redesignation. EPA is proposing to find 

that, if it finalizes approval of the CFV 

program Equivalency Demonstration, 

the BPA area will meet all 1-hour ozone 

anti-backsliding requirements 

applicable to the area for purposes of 

redesignation under section 110 and 

part D. 

2. What are the part D requirements 

applicable for purposes of redesignation 

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 of redesignation 

for the 1997 8-hour ozone standard 

under part D, section 182(b) became due 

prior to the submission of the complete 

redesignation request, and therefore 

none are applicable to the Area for 

purposes of redesignation. If EPA 

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finalizes its proposed approval of the 

area’s emissions inventory under 

section 182(a)(1), the area will have met 

all the requirements applicable under its 

prior marginal classification for 

purposes of redesignation. 

In addition to the fact that no 

moderate area part D requirements 

applicable for purposes of redesignation 

became due prior to submission of the 

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) of the 

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 of the 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 of the 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 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 of 

the redesignation request. Texas’s PSD 

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 of section 182(a)(1). An 

emissions inventory is an estimation of 

actual emissions of air pollutants in an 

area. The emissions inventory consists 

of VOC and NOX emissions, as they are 

ozone precursors. 

The State submitted a base year 

emissions inventory on December 18, 

2008 to EPA as part of the 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 I.B. of the TSD, found in the 

electronic docket. 

TABLE 4—BPA BASE YEAR EMISSION

INVENTORY

[Tons/day] 

2002 Base year inventory 

Source type NOX VOC 

Point .............................. 109.23 43.81 

Area .............................. 7.54 50.11 

On-road Mobile ............. 45.84 13.32 

Non-road Mobile ........... 48.99 13.85 

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 of the Texas SIP for the 

BPA area. With the approval of the 2002 

base year emissions inventory, it is 

EPA’s position that the BPA area will 

meet all of the 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. of the 

TSD. 

Section 182(a)(2)(A) RACT 

corrections. EPA approved the Texas 

RACT correction rules on March 7, 1995 

at 60 FR 12438. 

Section 182(a)(2)(B) I/M Program. 

There is no requirement for the BPA 

area to have an I/M program. The 

Federal I/M 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 I/M program (60 FR 

48033, September 18, 1995). 

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 of the standard without a 

part D NSR program in effect, since PSD 

requirements will apply after 

redesignation. 

Section 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 of 

redesignation, with the exception of the 

2002 Base Year Emissions Inventory. 

EPA is proposing to find that, upon 

EPA’s final approval of the BPA 

emissions inventory, the BPA area will 

meet all requirements applicable to the 

area for purposes of redesignation under 

section 110 and part D and have a fully 

approved applicable implementation 

plan for the area under section 110(k). 

C. Does the BPA area have a fully 

approved applicable SIP under section 

110(k) of the CAA for purposes of 

redesignation? 

With the exceptions noted above for 

the 1-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) 

of the CAA for all requirements 

applicable for purposes of 

redesignation. 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 of 

the CAA of 1970, Texas adopted and 

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submitted, and EPA fully approved at 

various times, provisions addressing the 

various 1-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 of 

redesignation. EPA also believes that 

since the moderate area part D 

requirements applicable for purposes of 

redesignation did not become due prior 

to submission of the redesignation 

request, they also are therefore not 

applicable requirements for purposes of 

redesignation. As set forth above, with 

the two exceptions noted, the area has 

met all other applicable requirements 

for purposes of redesignation under its 

prior marginal classification. Once EPA 

has finalized approvals of the 1-hour 

CFV program Equivalency 

Demonstrations and the 8-hour base 

year inventory, the area will have met 

all applicable requirements for purposes 

of redesignation 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 of the 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 (PEI) for NOX and 

VOC in the BPA area, and provided a 

comparison between the 2002 PEI and 

the 2005 Base EI. Second, the State 

analyzed the changes in VOC and NOX

emissions in the BPA area between the 

ozone standard violation year 2002 and 

one of the years in the period during 

which the area attained the standard, 

2005. Finally, the State documented the 

VOC 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 

VOC 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 of the first three-year 

period demonstrating attainment. By 

2005, NOX emissions were estimated to 

have dropped by almost 30% and VOC 

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 

of the preparation of the 2005 base year 

emission inventories below. 

To demonstrate that VOC and NOX

emissions decreased between one of the 

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 PEI and 2005 EI. Due to 

improved reporting and estimating 

techniques, flash 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 PEI AND THE 2005 BASE

EI 

[Tons per average ozone season day] 

Emissions source 

category 2002 2005 

VOC Emissions (tpd) 

Area .............................. 50.11 * 42.59 

Non-Road Mobile .......... 13.85 4.96 

On-Road Mobile ........... 13.32 11.63 

Point .............................. 43.81 42.68 

Total .......................... 121.09 101.86 

NOX Emissions (tpd) 

Area .............................. 7.54 9.06 

Non-Road Mobile .......... 48.99 25.99 

On-Road Mobile ........... 45.84 45.60 

Point .............................. 109.23 68.49 

TABLE 5—A COMPARISON OF VOC 

AND NOX EMISSIONS IN THE BPA 

AREA BY SOURCE CATEGORY FROM

THE 2002 PEI AND THE 2005 BASE

EI—Continued 

[Tons per average ozone season day] 

Emissions source 

category 2002 2005 

Total .............................. 211.60 149.14 

* 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. 

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 of its 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 of the 

reductions occurring by May 1, 2003, 

and the remaining one-third by May 1, 

2005. Federal emission control 

measures for on and off road 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 of the 

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 

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in the BPA area, which is discussed in 

greater detail below. 

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 

(CAMS 2) 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 of this section above. 

C. Permanent and Enforceable 

Emissions Controls Implemented 

The following is a discussion of the 

permanent and enforceable emission 

controls that have been implemented in 

the BPA area. In Texas’ 8-hour ozone 

redesignation request, the State 

documented all of the 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 of VOC 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 of 

the source categories covered by the 

most recently published CTGs (see a 

discussion of the 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 

of the Texas Administrative Code (30 

TAC 115), and all NOX RACT rules are 

contained in Chapter 117 of volume 30 

of the TAC (30 TAC 117). All of these 

VOC and NOX RACT rules have been 

approved by the EPA as revisions of the 

Texas SIP. 

2. ROP Plans and Attainment 

Demonstration Plan 

TCEQ states that the BPA are has met 

all of the one-hour ozone SIP 

obligations, including implementation 

of the 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 February 10, 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 

resulting from these rules beginning in 

2001. 

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 of the 

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 Standards for 

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 of the 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 of the 

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 59895; Updated Emissions 

Standards for 2004 and Later Model 

Year Highway Heavy Duty Engines and 

Vehicles). This rule includes standards 

limiting the sulfur content of diesel 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 nonroad 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. 

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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 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 measures 

Æ Tier 2 Fuel and Vehicle Emission Standards. 

Æ Onboard Refueling Vapor Recovery 

(ORVR) for light-duty vehicles. 

Æ Heavy-Duty Engine and Vehicle and Fuel 

Standards. 

Æ Federal controls on certain nonroad engines. 

Æ Federal control through Maximum Achievable Control Technology (MACT) of Hazardous Air Pollutants emissions. 

Æ Volatile Organic Compound Emission 

Standards for Consumer Products. 

Æ Volatile Organic Compound Emission 

Standards for Architectural Coatings. 

Æ 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 (TxLED) 

rule. Texas’ TxLED rule reduces 

emissions of NOX and other pollutants 

from diesel-powered motor vehicles and 

non-road equipment operating within 

110 counties in the eastern half of 

Texas, 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 of 2008. 

Texas Emission Reduction Plan 

(TERP). TERP, established in 2001, 

includes incentive grant programs to 

reduce NOX emissions from internal 

combustion engines on mobile sources. 

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 

Æ Texas Low Emission Diesel (TxLED). 

Æ Texas Emission Reduction Plan (TERP). 

Æ Prevention of Significant Deterioration. 

Æ Agreed Orders. 

6. Controls To Remain In Effect 

Texas commits to maintain all of the 

current emission control measures for 

VOC and NOX after the BPA area is 

redesignated to attainment. Texas, 

through TCEQ’s Chief Engineer’s Office, 

Air Quality Division, and the Office of 

Compliance and Enforcement, has the 

legal authority and necessary resources 

to actively enforce against any 

violations of the 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 of Texas have met the requirement 

of section 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 of the 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? 

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 of Texas 

included a SIP revision to provide for 

the maintenance of the 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 of the 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 of the 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 of the ozone standard for 

an additional 10 years beyond the initial 

10 year maintenance period. To address 

the possibility of future NAAQS 

violations, the maintenance plans must 

contain contingency measures, with 

schedules of implementation, 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 of 

maintenance plans. 

An ozone maintenance plan should, 

at minimum, address the following: (1) 

The attainment VOC and NOX emission 

inventories; (2) a maintenance 

demonstration showing maintenance for 

the 10 years of the maintenance period; 

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3The U.S. Court of Appeals, for the District of 

Columbia Circuit has remanded CAIR without 

vacatur, directing EPA to revise the CAIR rule. This 

leaves the current version of the 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 of the State’s CAIR NOX emission control 

rules. TCEQ complied, and by the time of the 

December 18, 2008, submittal had removed all 

emissions impacts due to CAIR in its projections. 

(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 of the 

NAAQS. 

B. How did Texas estimate the VOC and 

NOX emissions for the attainment year 

and the projection years? 

Sections 172(c)(3) and 182(b)(1) of the 

CAA require that the SIP include an 

inventory of actual emissions from all 

sources of relevant 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, onroad, 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 (PEI) 

for NOX and VOC in the BPA area. 

TCEQ initially submitted the 2002 PEI 

to EPA as part of the 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 of 

its 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 of Texas’ 

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, 2017, and 2021. The use of 2005 

is an appropriate choice because it is 

one of the 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 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 of data, 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 of Texas’ 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 of Texas 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 of Texas’ 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 (TTI), 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 of on-road 

mobile source VOC and NOX emissions 

for 2005, as well as for the projection 

years of 2011, 2014, 2017, and 2021 

(Chapter 4 and Appendices C and D of 

TCEQ’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 non-road 

sources is available in Chapter 4 and 

Appendix B of Texas’ 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 of its request to redesignate 

the BPA 8-hour ozone nonattainment 

area, the State of Texas included a SIP 

revision to incorporate a maintenance 

plan as required under section 175A of 

the 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 of the 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 

of NOX and VOC, when considered 

together, remain below the attainment 

levels 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 BPA area 

without the impacts of CAIR.3 TCEQ’s 

maintenance demonstration shows that 

in 2011, 2014, 2017, and 2021 (without 

the impacts of CAIR 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 

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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 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 of 

EPA’s CAIR by the U.S. Court of 

Appeals led to both the State and EPA 

further considering the impact of this 

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 of CAIR 

does not alter the requirements of the 

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 eighthour 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 of the 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 of the status of the CAIR 

program, the NOX SIP call requirements 

can be relied upon in demonstrating 

maintenance.’’ Therefore, EPA believes 

that Texas’ demonstration of 

maintenance under sections 175A and 

107(d)(3)(E) of the CAA remains valid. 

Texas has successfully demonstrated 

maintenance of the 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 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 II.B. of the 

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 

VOC Emissions (TPD) [Without CAIR] 

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 

* 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 of the 10- 

year period of the 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 

offset 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 of VOC 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 

of NOX 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. 

EPA proposes to conclude that TCEQ 

has demonstrated maintenance of the 

ozone standard during the 10-plus year 

maintenance period for the BPA area 

through projections of VOC and NOX

emissions that show that when 

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considered together the emissions will 

remain below the 2005 attainment levels 

during the maintenance period. This is 

demonstrated without the emission 

reductions from CAIR. 

D. Monitoring Network 

The State of Texas 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 of the 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 of 

40 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 

(SETRPC). If the SETRPC, however, 

removes one of its monitors, the EPA 

and Texas will jointly review the 

adequacy of the network, including 

whether additional monitoring is 

needed. In the maintenance plan, Texas 

commits to continue operation of the 

five ozone monitors it operates in 

compliance with 40 CFR part 58 

through the end of the 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 Web site and in 

EPA’s AQS database as long as the 

SETRPC participates in the network. 

As identified in the maintenance 

plan, each of the 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 of the BPA 

monitoring network, and the TSD: Part 

I.A. for additional monitoring 

information. 

E. Verification of Continued Attainment 

Texas has the legal authority to 

enforce and implement the 

requirements of the 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 of the 

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 

of TCEQ’s BPA submittal, December 16, 

2008). For these periodic updates of the 

BPA emissions inventories, Texas will 

review the assumptions made for the 

purpose of the 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 of the 

1997 ozone NAAQS that occurs after 

redesignation. The contingency plan 

provisions are designed to promptly 

correct or prevent a violation of the 

NAAQS that might occur after 

redesignation of an area to attainment. 

Section 175A of the CAA requires that 

a maintenance plan include such 

contingency measures, as EPA deems 

necessary to assure that the state will 

promptly correct a violation of the 

NAAQS that occurs after redesignation. 

The maintenance plan should identify 

the contingency measures to be adopted, 

a schedule and procedure for adoption 

and implementation of the 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 of the pollutant(s) that 

were contained in the SIP before 

redesignation of the area to attainment. 

See section 175A(d) of the CAA. 

As required by section 175A of the 

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 of the 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 

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 roof tanks, 

such as slotted guidepoles and other 

openings in internal and external 

floating roofs. 

• Inclusion of one or more counties in 

the BPA area in 30 TAC Chapter 115 

VOC rules limiting emissions from 

landings of floating roofs in floating roof 

tanks. 

• 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 of 250,000 

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 of the vapors is reduced 

to less than 34,000 parts per million by 

volume as methane. 

• Inclusion of one 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. 

These contingency measures and 

schedules for implementation satisfy 

EPA’s longstanding guidance on the 

requirement of section 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.B.4. above). The State 

will continue to operate appropriate 

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ambient ozone monitoring sites in the 

BPA area to verify continued attainment 

of the 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) of the 

CAA, Texas commits to submit to the 

EPA an updated ozone maintenance 

plan eight years after redesignation of 

the BPA area to cover an additional tenyear period beyond the initial ten-year 

maintenance period. As required by 

section 175A(d) of the 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 of section 175A 

of the 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 of the BPA 

area’s motor vehicle emissions budget? 

A. What are the transportation 

requirements for approvable MVEBs? 

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 of the NAAQS. It is a 

process required by section 176(c) of the 

Act for ensuring that the effects of 

emissions from all on-road sources are 

consistent with attainment or 

maintenance of the standard. EPA’s 

transportation conformity rules at 40 

CFR part 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 of the 

maintenance plan. 

The MVEB is the level of total 

allowable on-road emissions established 

by the maintenance plan. Maintenance 

plans must include the estimates of 

motor vehicle VOC and NOX emissions 

that are consistent with maintenance of 

attainment, which then act as a budget 

or ceiling for the purpose of determining 

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 of the 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) of the Act. 

EPA’s substantive criteria for 

determining ‘‘adequacy’’ of a MVEB are 

set out in 40 CFR 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 of March 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 of 

the 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/conform/ 

adequacy.htm. The EPA public 

comment period on the adequacy of the 

2021 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] 

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 of this 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 of NOX 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 of the 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 

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during one of the 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 of NOX/VOC emissions in the 

formation of O3, the net total reduction 

in NOX emissions is 7.73 tpd (Table 4– 

3). Texas has allocated one tpd of 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. of the 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 1 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 of the budget. The submittal 

has met the adequacy criteria in 40 CFR 

93.118(e)(4), and EPA has completed a 

comprehensive review of the 

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 1-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 1-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 of EPA’s approval of the 

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 1-hour ozone NAAQS, these are 

the contingency measures that EPA 

triggered. EPA approved a marine 

vessel-loading rule as part of the Texas 

SIP for the BPA area on January 26, 

1999 (64 FR 3841). As written, it 

appears it is triggered upon an EPA 

finding of failure to attain, but it was not 

included in the SIP-approved 

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 of the BPA area for 

the 1997 8-hour ozone standard to 

moderate, EPA refers specifically to the 

1998-approved 1-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 182(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 1- 

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 of the Texas SIP on August 19, 2005 

at 70 FR 48647 including the 

methodology for calculating SIP credits 

for the individual TERP control 

measures. 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 1-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 II.E. for additional detail. 

EPA is proposing to approve the 

substitute control measures for the 

backfill failure-to-attain contingency 

measures. Although, as noted in the 

discussion above, the 1-hour antibacksliding contingency measure 

obligation is suspended upon a final 

determination that the area is attaining 

the 1-hour ozone standard, and 

terminates upon a final redesignation of 

the 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 1-hour 

contingency measures are replaced by 

the section 175A 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 

§ 115.219). 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 

172(c)(9) or 182(c)(9) contingency plans 

and was not triggered by the EPA as part 

of the reclassification notice. 

Texas, in its SIP revision, made clear 

that the marine vessel loading rule 

should not be a part of the 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 loading rule. In fact, 

Texas’ sensitivity tests in photochemical 

modeling runs indicate that reductions 

of 1 tpd of NOX are equivalent to 

reductions of 3.8 tpd of VOC 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 post1996 ROP plan. It was not relied upon 

in any of the 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 of the 

reductions that would have been 

achieved if the 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 

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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 of 

Hardin, Jefferson, and Orange counties. 

Consistent with the Act, EPA is 

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 of the 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 1-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 1-hour ozone 

NAAQS has been attained in the area. 

Finalizing the 1-hour ozone attainment 

determination proposal will suspend 

the 1-hour anti-backsliding 

requirements for a 1-hour attainment 

demonstration and RACM analysis and 

contingency measures. These 

requirements will cease to apply if the 

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 of this emissions 

inventory and the CFV program 

equivalency determination, will meet all 

the applicable CAA requirements under 

section 110 and Part D for purposes of 

redesignation for the 1997 8-hour ozone 

NAAQS including all the applicable 

antibacksliding CAA requirements for a 

serious 1-hour ozone nonattainment 

area. Further, EPA is proposing to 

approve into the SIP, as meeting section 

175A and 107(d)(3)(E)(iv) of the Act, 

Texas’ maintenance plan for the BPA 

area for the 1997 8-hour ozone NAAQS. 

The maintenance plan shows 

maintenance of the standard through 

2021. Additionally, EPA is 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 of 

the 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 

of the Act. The final approval of this 

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 1-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, and would 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(l) 

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 of a 

maintenance plan under section 

107(d)(3)(E) are actions that affect the 

status of a geographical area and do not 

impose any additional regulatory 

requirements on sources beyond those 

imposed by state law. A redesignation to 

attainment does not in and of itself 

create any new requirements, but rather 

results in the applicability of 

requirements contained in the Clean Air 

Act for areas that have been 

redesignated to attainment. Moreover, 

the Administrator is required to approve 

a SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, these actions merely do 

not impose additional requirements 

beyond those imposed by state law and 

the Clean Air Act. For that reason, these 

actions: 

• Are not ‘‘significant regulatory 

actions’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Are not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Are not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Do not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Ozone, Nitrogen dioxides, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

40 CFR Part 81 

Environmental protection, Air 

pollution control. 

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Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules 27535 

Authority: 42 U.S.C. 7401 et seq. Dated: May 5, 2010. 

Lawrence E. Starfield, 

Acting Regional Administrator, Region 6. 

[FR Doc. 2010–11694 Filed 5–14–10; 8:45 am] 

BILLING CODE 6560–50–P 

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