Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2387 

[FR Doc. E9–618 Filed 1–14–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2006–0357; FRL–8761–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; Texas; 

Approval of the Section 110(a)(1) 

Maintenance Plan for the 1997 8-Hour 

Ozone Standard for El Paso County 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action approving a revision to the Texas 

State Implementation Plan (SIP). The 

revision consists of a maintenance plan 

for El Paso County developed to ensure 

continued attainment of the 1997 8-hour 

ozone National Ambient Air Quality 

Standard (NAAQS) through the year 

2014. The Maintenance Plan meets the 

statutory and regulatory requirements, 

and is consistent with EPA’s guidance. 

EPA is approving the revision pursuant 

to section 110 of the Federal Clean Air 

Act (CAA). 

DATES: This rule is effective on March 

16, 2009 without further notice, unless 

EPA receives relevant adverse comment 

by February 17, 2009. If EPA receives 

such comment, EPA will publish a 

timely withdrawal in the Federal 

Register informing the public that this 

rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2006–0357, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• 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 e-mail 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–2006– 

0357. 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 information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. 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 email 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. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. 

The file will be made available by 

appointment for public inspection in 

the Region 6 FOIA Review Room 

between the hours of 8:30 a.m. and 4:30 

p.m. weekdays except for legal holidays. 

Contact the person listed in the FOR

FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal 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: 

Jeffrey Riley, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone 214–665–8542; fax number 

214–665–7263; e-mail address 

riley.jeffrey@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we’’ ‘‘us’’ or ‘‘our’’ is used, we mean 

the EPA. 

Outline 

I. What Is the Action EPA Is Taking? 

II. What Is the Background for This Action? 

III. What Is EPA’s Analysis of the State’s 

Submittal? 

IV. What Preconstruction Permitting Program 

Applies in the Area? 

V. Final Action 

VI. Statutory and Executive Order Reviews 

I. What Is the Action EPA Is Taking? 

EPA is approving a revision to the 

Texas SIP. The revision is a 1997 8-hour 

ozone NAAQS maintenance plan for El 

Paso County. The State of Texas, 

through the Texas Commission on 

Environmental Quality (TCEQ), 

submitted the 1997 8-hour ozone 

NAAQS maintenance plan for El Paso 

County to EPA on January 20, 2006. 

EPA is approving the maintenance plan 

SIP revision for El Paso County as 

meeting the requirements of CAA 

Section 110(a)(1) and EPA’s regulations 

under 40 CFR 51.905(c) and (d) and 

being consistent with EPA guidance. 

The maintenance plan is designed to 

help keep the El Paso area in attainment 

for the 8-hour ozone NAAQS through 

the year 2014. 

II. What Is the Background for This 

Action? 

Under the 1990 CAA Amendments, El 

Paso County continued to be designated 

nonattainment for the 1-hour ozone 

NAAQS by operation of law and was 

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2388 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

classified as a serious nonattainment 

area (see 56 FR 56694). El Paso County 

has unique considerations for ozone 

attainment planning due to airshed 

contributions from Ciudad Juarez, 

Mexico. Under Section 179B of the Act, 

the EPA approved the 1-hour ozone 

standard attainment demonstration SIP 

for El Paso County on June 10, 2004 (see 

69 FR 32450). TCEQ established to the 

EPA’s satisfaction that implementation 

of the plan would achieve timely 

attainment of the 1-hour ozone NAAQS 

but for emissions emanating from 

Ciudad Juarez. 

EPA also found the El Paso area 

would attain by November 15, 1996, 

earlier than the attainment deadline of 

November 15, 1999. Due to this finding, 

and the State’s enforceable commitment 

to perform basin-wide modeling 

whenever the necessary Juarez 

information became available, the 

requirement for a post-1996 plan with 

an additional 9 percent of reductions 

from November 1996 through November 

1999 was deferred. This approval of the 

section 179B attainment demonstration 

SIP and deferral of the post-1996 plan 

was contingent; valid only as long as the 

area’s modeling data continued to show 

that the El Paso 1-hour ozone area 

would be in attainment of the 1-hour 

NAAQS, but for emissions from outside 

the United States. 

TCEQ submitted all the other 

requirements for a 1-hour ozone 

nonattainment area classified as serious 

and EPA approved them as follows: 

Description Date of approval 

Federal 

Register 

Notice 

15% Rate of Progress (ROP) Plan ........................................... November 10, 1998 ................................................................. 63 FR 62943. 

1990 base year Emissions Inventory ........................................ November 8, 1994 ................................................................... 59 FR 55589. 

Periodic Inventory ...................................................................... Most Recent: December 2, 2004 (letter from TCEQ).

Emissions Statements ............................................................... August 26, 1994 ....................................................................... 59 FR 44036. 

Enhanced I/M ............................................................................. August 22, 1994, revised ......................................................... 59 FR 43046. 

November 14, 2001 ................................................................. 66 FR 57261. 

VOC Reasonably Available Control Technology (RACT) ......... March 7, 1995, revised ............................................................ 60 FR 12438. 

October 1996 ........................................................................... 61 FR 55897. 

January 26, 1999 ..................................................................... 64 FR 3841. 

March 15, 1999 ........................................................................ 64 FR 12759. 

December 22, 1999 ................................................................. 64 FR 71666. 

September 5, 2000 .................................................................. 65 FR 53595. 

December 20, 2000 ................................................................. 65 FR 79745. 

July 16, 2001 ............................................................................ 66 FR 36913. 

New Source Review (NSR) ....................................................... September 27, 1995 ................................................................ 60 FR 49781. 

Offset requirement ..................................................................... October 30, 1996 ..................................................................... 61 FR 55894. 

Reid Vapor Pressure ................................................................. March 7, 1995 .......................................................................... 60 FR 12438. 

Stage II Vapor Control ............................................................... April 15, 1994, revised ............................................................. 59 FR 17940. 

March 29, 2005 ........................................................................ 70 FR 15769. 

Clean Fuel Vehicle Program ..................................................... February 7, 2001 ...................................................................... 66 FR 9203. 

Transportation Control Measures .............................................. November 10, 1998 ................................................................. 63 FR 62943. 

Enhanced Monitoring ................................................................. October 4, 1994 ....................................................................... 59 FR 50504. 

Failure-to-meet ROP and attainment contingency measures ... May 22, 1997 ........................................................................... 62 FR 27964. 

NOX Waiver ............................................................................... November 28, 1994 ................................................................. 59 FR 60714. 

On April 30, 2004, EPA designated 

and classified areas for the 1997 8-hour 

ozone NAAQS (69 FR 23858), and 

published the final Phase 1 rule for 

implementation of the 1997 ozone 

NAAQS (69 FR 23951). El Paso County 

was designated as unclassifiable/ 

attainment for the 1997 ozone standard, 

effective June 15, 2004 (see 69 FR 

23858). Consequently, this attainment 

area is required to submit a 10-year 

maintenance plan under section 

110(a)(1) of the CAA and the Phase 1 

rule. On May 20, 2005, EPA issued 

guidance providing information 

regarding how a state might fulfill the 

maintenance plan obligation established 

by the Act and the Phase 1 rule 

(Memorandum from Lydia N. Wegman 

to Air Division Directors, Maintenance 

Plan Guidance Document for Certain 8- 

hour Ozone Areas Under Section 

110(a)(1) of Clean Air Act, May 20, 

2005). On January 20, 2006, Texas 

submitted a 1997 8-hour ozone standard 

maintenance plan for El Paso County to 

EPA. This SIP revision satisfies the 

section 110(a)(1) CAA requirements for 

a plan that provides for implementation, 

maintenance, and enforcement of the 

1997 8-hour ozone NAAQS in the El 

Paso County unclassifiable/attainment 

area. 

On December 22, 2006, the United 

States Court of Appeals for the District 

of Columbia Circuit issued an opinion 

that vacated EPA’s Phase 1 

Implementation Rule for the 1997 8- 

Hour Ozone Standard. (South Coast Air 

Quality Management District. v. EPA, 

472 F.3d 882 (DCCir. 2006). Petitions for 

rehearing were filed with the Court, and 

on June 8, 2007, the Court modified the 

scope of the vacatur of the Phase 1 rule. 

See 489 F.3d 1245 (DC Cir. 2007), cert. 

denied, 128 S.Ct. 1065 (2008). The Court 

vacated those portions of the Rule that 

provide for regulation of the 1997 8- 

hour ozone NAAQS nonattainment 

areas under Subpart 1 in lieu of Subpart 

2 and that allowed areas to revise their 

SIPs to no longer require certain 

programs as they applied for purposes 

of the 1-hour NAAQS; new source 

review, section 185 penalties, and 

contingency plans for failure to meet 

RFP and attainment milestones. 

Consequently, the Court’s modified 

ruling does not alter any requirements 

under the Phase 1 implementation rule 

for the 1997 8-hour ozone NAAQS for 

maintenance plans. 

The Phase 1 Rule also provided that 

for an area like El Paso, any outstanding 

obligations to provide SIP revisions 

concerning attainment demonstration 

and Rate of Progress (ROP) Plan for the 

1-hour ozone NAAQS would no longer 

be required as long as the area continues 

to maintain the 8-hour standard. If the 

8-hour standard is violated prior to the 

area having an approved 8-hour 

maintenance plan under section 

110(a)(1), the area would be required to 

submit a SIP revision to address the 

deferred post-1996 ROP plan. The area 

is not violating either the 1-hour or 8- 

hour standard, and upon the effective 

date of our approval of the 8-hour ozone 

maintenance plan, there no longer will 

be a potential outstanding requirement 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2389 

1Monitors in El Paso County currently reflect 

attainment of the 1-hour ozone NAAQS (2002–2004 

data). The State, however, did not submit a request 

for redesignation of the area to attainment for the 

1-hour ozone standard and a section 175A 

maintenance plan. Because the area was never 

redesignated to attainment, the area must continue 

to meet the 1-hour ozone serious area applicable 

requirements (see 40 CFR 51.905(a)(3) and Section 

IV). 

to submit a 1-hour ozone post-1996 ROP 

Plan for the El Paso 1-hour ozone 

nonattainment area.1

III. What Is EPA’s Analysis of the 

State’s Submittal? 

On January 20, 2006, the State of 

Texas submitted a SIP revision 

containing a maintenance plan for the 

1997 ozone NAAQS for El Paso County. 

The January revision provides a 1997 

ozone NAAQS maintenance plan, as 

required by section 110(a)(1) of the CAA 

and the provisions of EPA’s Phase 1 

Implementation Rule (see 40 CFR 

51.905(a)(4)). The purpose of the plan is 

to ensure continued attainment and 

maintenance of the 1997 ozone NAAQS 

in El Paso County. 

In this action, EPA is approving the 

State’s maintenance plan for the 1997 

ozone NAAQS for the area of El Paso 

County because EPA finds that the 

TCEQ submittal meets the requirements 

of section 110(a)(1) of the CAA, EPA’s 

rule, and is consistent with EPA’s 

guidance. As required, the plan 

provides for continued attainment and 

maintenance of the 1997 ozone NAAQS 

in the area for 10 years from the 

effective date of the area’s designation 

as unclassifiable/attainment for the 1997 

ozone NAAQS, and includes 

components illustrating how the area 

will continue in attainment of the 1997 

ozone NAAQS and contingency 

measures. Each of the section 110(a)(1) 

plan components is discussed below. 

(a) Attainment Inventory—The TCEQ 

developed comprehensive inventories of 

VOC and NOX emissions from area, 

stationary, and mobile sources using 

2002 as the base year to demonstrate 

maintenance of the 1997 ozone NAAQS 

for El Paso County. The year 2002 is an 

appropriate year for the TCEQ to base 

attainment level emissions because 

States may select any one of the three 

years on which the 8-hour attainment 

designation for the 1997 ozone NAAQS 

was based (2001, 2002, and 2003). The 

State’s submittal contains the detailed 

inventory data and summaries by source 

category. The 2002 base year inventory 

is a good choice. Using the 2002 

inventory as a base year reflects one of 

the years used for calculating the air 

quality design values on which the 8- 

hour ozone designation decisions were 

based. It also is one of the years in the 

2002–2004 period used to establish 

baseline visibility levels for the regional 

haze program. 

A practical reason for selecting 2002 

as the base year emission inventory is 

that Section 110(a)(2)(B) of the CAA and 

the Consolidated Emissions Reporting 

Rule (67 FR 39602, June 10, 2002) 

require States to submit emissions 

inventories for all criteria pollutants and 

their precursors every three years, on a 

schedule that includes the emissions 

year 2002. The due date for the 2002 

emissions inventory is established in 

the rule as June 2004. In accordance 

with these requirements, the State of 

Texas compiles a statewide EI for point 

sources on an annual basis. For 

stationary point sources, for El Paso 

County, the TCEQ provided estimates 

for each commercial or industrial 

operation that emits 50 tons or more per 

year of VOC or NOX in Appendix B of 

the maintenance plan. This data is 

quality assured and entered into the 

State of Texas Air Reporting System 

(STARS). Projections for 2008 and 2014 

were developed using the August 2005 

Texas Industrial Production Index (TIPI) 

derived growth factors, supplemented 

with Economic Growth Analysis System 

version 4.0 (EGAS 4.0). Stationary nonpoint source data was grown by using 

EGAS 4.0, and On-road mobile 

emissions of VOC and NOX were 

estimated using EPA’s MOBILE6.2 

motor vehicle emissions factor 

computer model. Non-road mobile 

projections were developed with EPA’s 

NONROAD model, with the exception 

of aircraft, airport ground support 

equipment, and locomotives. For these 

categories, the 2002 Periodic Emissions 

Inventory was grown to 2008 and 2014 

using EGAS 4.0 growth factors, and the 

Federal Aviation Administration’s 

Dispersion Modeling System (EDMS) 

model was used to develop aircraft 

emissions projections. EPA finds that 

the TCEQ prepared the 2002 base year 

emissions inventories and projected 

data to the years 2008 and 2014, for the 

area consistent with EPA’s longestablished guidance memoranda. 

The following table provides VOC and 

NOX emissions data for the 2002 base 

attainment year inventory, as well as 

projected VOC and NOX emission 

inventory data for the years 2008 and 

2014. Please see the Technical Support 

Document (TSD) for additional 

emissions inventory data including 

projections by source category. 

VOC AND NOX EMISSIONS INVENTORY BASELINE (2002) AND PROJECTIONS (2008 AND 2014) 

Emissions 2002 

tons per day 

2008 

tons per day 

2014 

tons per day 

Total VOC .................................................................................................................................... 52.44 47.53 44.61 

Total NOX .................................................................................................................................... 60.87 49.01 36.89 

As shown in the Table above, total 

VOC and total NOX emissions for El 

Paso County are expected to decrease 

over the 10-year period of the 

maintenance plan. Please see the TSD 

for more information on EPA’s analysis 

and review of the State’s methodologies, 

modeling data and performance, etc. for 

developing the base and attainment year 

inventories. The State has demonstrated 

that the future year 1997 8-hour ozone 

emissions will be less than the 2002 

base attainment year’s emissions. The 

attainment inventories submitted by the 

TCEQ for this area are consistent with 

the criteria as discussed in the EPA 

Maintenance Plan Guidance memo 

dated May 20, 2005 and in other 

guidance documents (please see the 

docket for additional information). EPA 

finds that the future emissions levels in 

2008 and 2014 are expected to be less 

than emissions levels in 2002. 

(b) Maintenance Demonstration—The 

primary purpose of a maintenance plan 

is to demonstrate how an area will 

continue to remain in compliance with 

the 1997 ozone standard for the 10 year 

period following the effective date of 

designation as unclassifiable/ 

attainment. The end projection year is 

10 years from the effective date of the 

attainment designation for the 1997 

ozone NAAQS, which for El Paso 

County was June 15, 2004. Therefore, 

the plan must demonstrate attainment 

through 2014. As discussed in section 

(a) Attainment Inventory above, Texas 

has identified the level of ozone-forming 

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2390 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

emissions in El Paso County that was 

consistent with attainment of the 

NAAQS for ozone in 2002. Texas has 

projected VOC and NOX emissions for 

the years 2008 and 2014 in El Paso 

County and EPA finds that the future 

emissions levels in those years are 

expected to be below the emissions 

levels in 2002. Please see the TSD for 

more information on EPA’s review and 

evaluation of the State’s methodologies, 

modeling, inputs, etc., for developing 

the 2008 and 2014 projected emissions 

inventories. 

This demonstration shows 

compliance and maintenance of the 

1997 8-hour ozone standard by assuring 

that current and future emissions of 

VOC and NOX remain at or below 

attainment or baseline EI of 2002. The 

year 2002 was chosen as the baseline 

year because it is one of the most recent 

three years (i.e., 2002, 2003, and 2004) 

for which the El Paso area has clean air 

quality data for the 8-hour ozone 

standard. It includes future inventory 

projected years for 2008 and 2014. The 

plan identifies an ‘‘out year,’’ at least 10 

years after the effective date of 

classification. EPA finds that the future 

emissions levels in 2008 and 2014 are 

expected not to exceed the emissions 

levels in 2002. 

(c) Monitoring Network—The State of 

Texas has committed in its maintenance 

plan 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 such a network, 

if additional monitoring is needed, and 

when monitoring can be discontinued. 

In El Paso County, there are six 

monitoring sites, each of which has 

monitored attainment with the 1997 

ozone standard from 2002 through 2007. 

The 1997 ozone NAAQS is 0.08 parts 

per million based on the three-year 

average of the fourth-highest daily 

maximum 8-hour average ozone 

concentration measured at each monitor 

within an area. The 1997 ozone 

standard is considered to be attained at 

84 parts per billion (ppb). The three 

most recent 8-hour ozone design values 

for El Paso County are 76 ppb for 2005, 

78 ppb for 2006, and 79 ppb for 2007. 

(d) Contingency Plan—The section 

110(a)(1) maintenance plan includes 

contingency provisions to correct 

promptly any violation of the 1997 

ozone NAAQS that occurs. The 

contingency indicator is based upon 

monitoring data. The triggering 

mechanism for activation of 

contingency measures is a monitoring 

violation of the 1997 8-hour ozone 

standard. In the maintenance plan, if 

contingency measures are triggered, 

TCEQ is committing to implement the 

measures as expeditiously as practicable 

but no longer than 24 months following 

the trigger. Because the area can be 

influenced by transport from outside the 

area (e.g., emissions from Mexico), the 

State will notify the EPA if the violation 

was caused by actions outside TCEQ’s 

jurisdiction. 

The following contingency measures 

are identified for implementation: 

• Vent gas control. 

• Control of emissions from degassing 

or cleaning of stationary, marine, and 

transport vehicles. 

• Control of emissions from 

petroleum dry cleaning systems. 

• Other measures deemed appropriate 

at the time because of advances in 

control technologies. 

These contingency measures and 

schedules for implementation satisfy 

EPA’s long-standing guidance on the 

requirements of section 110(a)(1) of 

Continued Attainment. Based on the 

above, we find that the contingency 

measures provided in the State’s El Paso 

8-hour Ozone maintenance plan are 

sufficient and meet the requirements of 

section 110(a)(1) of the CAA. 

(e) Verification of Continued 

Attainment—Texas commits to track the 

progress of the maintenance plan by 

continuing to periodically update the EI. 

It will compare the updated EIs against 

the projected 2008 and 2014 EIs. In 

addition, Texas commits to verify the 8- 

hour ozone status through appropriate 

ambient air quality monitoring, and to 

quality assure air quality monitoring 

data according to federal requirements. 

IV. What Preconstruction Permitting 

Program Applies in the Area? 

As discussed previously in Section II, 

although the monitoring data shows that 

the area is meeting both the 1-hour and 

8-hour ozone standards, the State did 

not submit a request for redesignation of 

the area to attainment for the 

1-hour ozone standard before EPA 

revoked this standard. Because the area 

was never redesignated to attainment for 

the 1-hour standard, the area must 

continue to meet the applicable 1-hour 

ozone serious area measures. These 

mandatory measures include the serious 

nonattainment area NSR permitting 

program. 

40 CFR 51.905(a)(3) 8-Hour NAAQS 

Attainment/1-Hour NAAQS 

Nonattainment of EPA’s Phase 1 

implementation rule, however, provides 

that the State may request that the 

Nonattainment New Source Review 

program no longer apply in an area such 

as El Paso. If the State submits to EPA 

a request to remove the NNSR program 

from the El Paso Ozone SIP and replace 

it with the State’s prevention of 

significant deterioration (PSD) SIP, a 

section 110(l) demonstration would 

need to be included with the request. 

If Texas chooses to submit such a 

request, the request must include all 

necessary supporting elements, e.g., a 

section 110(l) demonstration, any 

necessary regulatory revisions. Please 

note that the Texas PSD SIP 

requirements would apply in the El 

Paso ozone area only upon the effective 

date of an EPA action approving the 

removal from the El Paso ozone SIP of 

the NNSR SIP program. 

V. Final Action 

Pursuant to section 110 of the Act, 

EPA is approving the 1997 8-hour ozone 

maintenance plan for El Paso County. 

We have evaluated the State’s submittal 

and have determined that it meets the 

applicable requirements of the Clean Air 

Act and EPA regulations, and is 

consistent with EPA policy. 

EPA is publishing this rule without 

prior proposal because we view this as 

a non-controversial amendment and 

anticipate no adverse comments. 

However, in the proposed rules section 

of this Federal Register publication, we 

are publishing a separate document that 

will serve as the proposal to approve the 

SIP revision if relevant adverse 

comments are received. This rule will 

be effective on March 16, 2009 without 

further notice unless we receive adverse 

comment by February 17, 2009. If we 

receive adverse comments, we will 

publish a timely withdrawal in the 

Federal Register informing the public 

that the rule will not take effect. We will 

address all public comments in a 

subsequent final rule based on the 

proposed rule. We will not institute a 

second comment period on this action. 

Any parties interested in commenting 

must do so now. Please note that if we 

receive adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

we may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

VI. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason and because this action will 

not have a significant, adverse effect on 

the supply, distribution, or use of 

energy, this action is also not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2391 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, 

May 22, 2001). This action merely 

approves state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

CAA. This rule also is not subject to 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant. Executive 

Order 12898 (59 FR 7629, February 16, 

1994) establishes federal executive 

policy on environmental justice. 

Because this rule merely approves a 

state rule implementing a Federal 

standard, EPA lacks the discretionary 

authority to modify today’s regulatory 

decision on the basis of environmental 

justice considerations. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the CAA. In this context, in the absence 

of a prior existing requirement for the 

State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the CAA. Thus, the requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) do not 

apply. This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by March 16, 2009. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Nitrogen dioxides, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: December 31, 2008. 

Richard E. Greene, 

Regional Administrator, Region 6. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart SS—Texas 

■ 2. In § 52.2270, the second table in 

paragraph (e) entitled ‘‘EPA Approved 

Nonregulatory Provisions and QuasiRegulatory Measures in the Texas SIP,’’ 

is amended by adding an entry at the 

end of the table to read as follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(e) * * * 

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP 

Name of SIP provision 

Applicable 

geographic or 

nonattainment area 

State 

submittal/ 

effective date 

EPA approval date Comments 

* * * * * * * 

El Paso County 1997 8-Hour Ozone Maintenance Plan.El Paso, TX ............. 1/11/06 1/15/09 [Insert FR page number where 

document begins].

■ 3. Section 52.2275 is amended by 

adding a new paragraph (g) to read as 

follows: 

§ 52.2275 Control strategy and 

regulations: Ozone. 

* * * * * 

(g) Approval. The Texas Commission 

on Environmental Quality (TCEQ) 

submitted a 1997 8-hour ozone NAAQS 

maintenance plan for the area of El Paso 

County on January 20, 2006. The area is 

designated unclassifiable/attainment for 

the 1997 8-hour ozone standard. EPA 

determined this request for El Paso 

County was complete on June 13, 2006. 

The maintenance plan meets the 

requirements of section 110(a)(1) of the 

Clean Air Act and is consistent with 

mstockstill on PROD1PC66 with RULES

2392 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

1Areas designated as mandatory Class I Federal 

areas are those national parks exceeding 6,000 

acres, wilderness areas and national memorial parks 

exceeding 5,000 acres, and all international parks 

which were in existence on August 7, 1977. 

Visibility has been identified as an important value 

in 156 of these areas. See 40 CFR part 81, subpart 

D. 

EPA’s maintenance plan guidance 

document dated May 20, 2005. The EPA 

therefore approved the 1997 8-hour 

ozone NAAQS maintenance plan for the 

area of El Paso County on January 15, 

2009. 

[FR Doc. E9–708 Filed 1–14–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[FRL–8762–7] 

Finding of Failure To Submit State 

Implementation Plans Required by the 

1999 Regional Haze Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is taking a final 

action finding that 37 states, the District 

of Columbia, and the U.S. Virgin Islands 

have failed to submit for EPA review 

and approval State Implementation 

Plans (SIPs) for improving visibility in 

the nation’s national parks and 

wilderness areas. Under the Clean Air 

Act (CAA) and EPA’s implementing 

regulations, states were required to 

submit these SIPs to EPA by December 

17, 2007. These SIPs must contain a 

number of elements, including 

importantly: For each mandatory Class 

I federal area in a state, reasonable 

progress goals providing for an 

improvement in visibility for the most 

impaired days and ensuring no 

degradation in visibility for the least 

impaired days; a long-term strategy for 

improving visibility, including 

enforceable emissions limitations, for 

meeting the reasonable progress goals; 

and Best Available Retrofit Technology 

(BART) determinations for certain older 

existing stationary sources. By this 

action, the EPA is making a finding of 

failure to submit for those states that 

have not submitted a SIP or have 

submitted a SIP that addresses only part 

of the requirements. 

DATES: Effective Date: This action is 

effective on January 15, 2009. 

FOR FURTHER INFORMATION CONTACT: 

General questions concerning this 

notice should be addressed to Mr. Todd 

Hawes, Office of Air Quality Planning 

and Standards, Air Quality Policy 

Division, Mail Code: C539–04, 109 TW 

Alexander Drive, Research Triangle 

Park, NC 27709; telephone (919) 541– 

5591. 

SUPPLEMENTARY INFORMATION: For 

questions related to a specific state 

please contact the appropriate regional 

office: 

Regional offices States 

Anne Arnold, Manager, Air Quality Planning Unit, EPA New England, I 

Congress Street, Suite 1100 (CAQ), Boston, MA 02114–2023.

Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, 

Vermont. 

Raymond Werner, Chief, Air Programs Branch, EPA Region II, 290 

Broadway, 25th Floor, New York, NY 10007–1866.

New Jersey, New York, Virgin Islands. 

Christina Fernandez, Chief, Air Quality Planning Branch, EPA Region 

III, 1650 Arch Street, Philadelphia, PA 19103–2187.

District of Columbia, Maryland, Pennsylvania, Virginia. 

Dick A. Schutt, Chief, Air Planning Branch, EPA Region IV, Sam Nunn 

Atlanta Federal Center, 61 Forsyth, Street, SW., 12th Floor, Atlanta, 

GA 30303.

Florida, Georgia. 

Jay Bortzer, Chief, Air Programs Branch, EPA Region V, 77 West 

Jackson Street, Chicago, IL 60604.

Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin. 

Tom Diggs, Associate Director Air Programs, EPA Region VI, 1445 

Ross Avenue, Dallas, TX 75202–2733.

Oklahoma, New Mexico, Texas. 

Joshua A. Tapp, Chief, Air Programs Branch, EPA Region VII, 901 

North 5th Street, Kansas City, Kansas 66101–2907.

Kansas, Nebraska. 

Monica S. Morales, Unit Chief, Air Quality Planning Unit, EPA Region 

VIII Air Program, 1595 Wynkoop St. (8P–AR), Denver, CO 80202– 

1129.

Colorado, Montana, North Dakota, South Dakota, Wyoming. 

Lisa Hanf, Chief, Air Planning Office, EPA Region IX, 75 Hawthorne 

Street, San Francisco, CA 94105.

Arizona, California, Hawaii, Nevada. 

Mahbubul Islam, Manager, State and Tribal Air Programs, EPA Region 

X, Office of Air, Waste, and Toxics, Mail Code OAQ–107, 1200 Sixth 

Avenue, Seattle, WA 98101.

Alaska, Idaho, Oregon, Washington. 

Table of Contents 

I. Background 

A. Statutory and Regulatory Requirements 

B. Consequences of Findings of Failure To 

Submit 

II. This Action 

III. Statutory and Executive Order Reviews 

A. Notice and Comment Under the 

Administrative Procedure Act 

B. Effective Date Under the Administrative 

Procedure Act 

C. Executive Order 12866: Regulatory 

Planning and Review 

D. Paperwork Reduction Act 

E. Regulatory Flexibility Act (RFA) 

F. Unfunded Mandates Reform Act 

G. Executive Order 13132: Federalism 

H. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

I. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

J. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

K. National Technology Transfer 

Advancement Act 

L. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

M. Congressional Review Act 

N. Judicial Review 

I. Background 

In CAA section 169A, Congress 

declared as a national goal the 

prevention of any future, and the 

remedying of any existing, impairment 

of visibility in mandatory class I Federal 

areas (Class I areas) 1 which impairment 

results from manmade air pollution. 

EPA’s visibility regulations, codified at 

40 CFR 51.300–51.309, require states to 

develop regional haze SIPs with 

measures necessary to make reasonable 

progress towards remedying visibility 

impairment in Class I areas. The 

required SIP elements include: (1) For 

states with one or more Class I areas, the 

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