Rule2023-08436
Air Plan Approval; Texas; Reasonable Further Progress Plan for the Dallas-Fort Worth Ozone Nonattainment Area
Primary source
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Published
April 24, 2023
Effective
May 24, 2023
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving revisions to the State Implementation Plan (SIP) for Texas as proposed on October 9, 2020, and supplemented on December 20, 2022. The revisions were submitted by Texas on May 13, 2020, to meet the Reasonable Further Progress (RFP) requirements for the Dallas-Fort Worth Serious ozone nonattainment area (DFW area) for the 2008 ozone National Ambient Air Quality Standard (NAAQS). Specifically, EPA is approving the RFP demonstration and associated Motor Vehicle Emission Budgets (budgets). EPA is also notifying the public that EPA finds these RFP budgets for the DFW area adequate for the purpose of transportation conformity. As a result of such finding, the DFW area must use the budgets from the submitted DFW RFP SIP for future conformity determinations. The EPA is not finalizing a previous proposed approval of revisions to the SIP that address RFP contingency measure requirements for the DFW area in this action and that will be addressed in a separate action.
Full Text
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<title>Federal Register, Volume 88 Issue 78 (Monday, April 24, 2023)</title>
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[Federal Register Volume 88, Number 78 (Monday, April 24, 2023)]
[Rules and Regulations]
[Pages 24693-24699]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08436]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2020-0161; FRL-10428-02-R6]
Air Plan Approval; Texas; Reasonable Further Progress Plan for
the Dallas-Fort Worth Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving revisions to the
State Implementation Plan (SIP) for Texas as proposed on October 9,
2020, and supplemented on December 20, 2022. The revisions were
submitted by Texas on May 13, 2020, to meet the Reasonable Further
Progress (RFP) requirements for the Dallas-Fort Worth Serious ozone
nonattainment area (DFW area) for the 2008 ozone National Ambient Air
Quality Standard (NAAQS). Specifically, EPA is approving the RFP
demonstration and associated Motor Vehicle Emission Budgets (budgets).
EPA is also notifying the public that EPA finds these RFP budgets for
the DFW area adequate for the purpose of transportation conformity. As
a result of such finding, the DFW area must use the budgets from the
submitted DFW RFP SIP for future conformity determinations. The EPA is
not finalizing a previous proposed approval of revisions to the SIP
that address RFP contingency measure requirements for the DFW area in
this action and that will be addressed in a separate action.
DATES: This rule is effective on May 24, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID EPA-R06-OAR-2020-0161. All documents in the docket are listed
on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet. Publicly available docket
materials are available electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Ms. Carrie Paige, EPA Region 6 Office,
Infrastructure and Ozone Section, 214-665-6521, <a href="/cdn-cgi/l/email-protection#fe8e9f97999bd09d9f8c8c979bbe9b8e9fd0999188"><span class="__cf_email__" data-cfemail="e797868e8082c9848695958e82a7829786c9808891">[email protected]</span></a>.
Out of an abundance of caution for members of the public and our staff,
the EPA Region 6 office may be closed to the public to reduce the risk
of transmitting COVID-19. Please call or email the contact listed above
if you need alternative access to material indexed but not provided in
the docket.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
The background for this action is discussed in detail in our
October 9, 2020, proposal and December 20, 2022, supplemental proposal
(85 FR 64084 and 87 FR 77770, respectively).\1\ In the October 2020
document, we proposed to approve a portion of the May 13, 2020, Texas
SIP revision addressing RFP requirements for the 2008 8-hour ozone
NAAQS for the two Serious ozone nonattainment areas in Texas (``the
Texas RFP submittal''). These two areas are the DFW and the Houston-
Galveston-Brazoria (HGB) areas. The Texas RFP submittal also
establishes budgets for the year 2020 and includes contingency measures
for each of the DFW and HGB areas, should the areas fail to make
reasonable further progress or fail to attain the NAAQS by the
applicable attainment date. Our October 2020 proposal addressed only
that portion of the Texas RFP submittal that refers to the DFW area.
The portion of the Texas RFP submittal that refers to the HGB area was
addressed in a separate rulemaking action.\2\
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\1\ Henceforth we refer to these proposals as ``the October 2020
document'' or ``the October 2020 proposal'' and ``the December 2022
action'' or ``the December 2022 supplemental proposal.'' These
proposals and our Technical Support Document (TSD) are provided in
the docket for this action.
\2\ Our final action to approve the RFP plan for the HGB area
was published on May 10, 2021 (86 FR 24717).
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Our October 2020 proposal also provided information on ozone
formation, the ozone standards, area designations, related SIP revision
requirements under the CAA, and the EPA's implementing regulations for
the 2008 ozone NAAQS, referred to as the 2008 Ozone SIP Requirements
Rule (``2008 Ozone SRR'').\3\ The DFW area, comprising Collin, Dallas,
Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise
counties was classified as Serious nonattainment for the 2008 ozone
NAAQS and as such was subject to the Serious area requirements, one of
which was to demonstrate RFP in reducing volatile organic compounds
(VOC).\4\ In demonstrating RFP, emission reductions of nitrogen oxides
(NO<INF>X</INF>) may be substituted for VOC reductions, if certain
criteria are met.\5\ As explained in our October 2022 proposal and TSD,
because the State has already satisfied the 15 percent VOC emissions
reduction requirement for the DFW area, all 10 counties in the DFW
nonattainment area may substitute NO<INF>X</INF> reductions for VOC,
consistent with the 2008 Ozone SRR (see 80 FR 12264, 12271), 40 CFR
51.1110, and EPA's NO<INF>X</INF> Substitution Guidance.
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\3\ See 80 FR 12264 (March 6, 2015).
\4\ Our final determination that the DFW Serious nonattainment
area failed to attain the 2008 ozone NAAQS by the area's attainment
date is outside the scope of this action (87 FR 60926, October 7,
2022).
\5\ See 80 FR 12264, 12271 for an explanation of criteria.
NO<INF>X</INF> and VOC are precursors to ozone formation.
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The comment period on our October 2020 proposal closed on November
9, 2020. We received relevant supportive and adverse comments on our
proposal from the North Central Texas Council of Governments (NCTCOG)
and Air Law for All (ALFA) on behalf of the Center for Biological
Diversity and the Sierra Club.\6\ One commenter supported the proposed
action and concurred with the on-road mobile source emission
inventories and budgets for 2020. One commenter stated that our
proposal did not address how the substitution of NO<INF>X</INF>
emission reductions for VOC emission reductions in the DFW RFP plan is
consistent with the CAA. Based on those comments, we published a
supplemental proposal to address the NO<INF>X</INF> substitution issue
raised. Our December 2022 supplemental proposal provided an overview of
ozone chemistry and NO<INF>X</INF> substitution effects, discussed
ozone chemistry in the DFW area, and described how Texas's use of
NO<INF>X</INF> substitution is warranted and appropriately implemented.
Our December 2022 action also proposed to approve the NO<INF>X</INF>
substitution provided in the Texas RFP submittal for the DFW area.
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\6\ Henceforth, we refer to the NCTCOG and ALFA as ``the
commenter(s)''. These comments are provided in the docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under docket ID: EPA-R06-OAR-2020-0161.
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The comment period on our December 2022 supplemental proposal
closed on January 19, 2023. We received one comment from an anonymous
source that addresses the fossil fuel industry. However, such comments
do not raise NO<INF>X</INF> substitution in the DFW area, which is the
subject of the December 2022 supplemental proposal and thus, are beyond
the scope of the action and do not require a response below.\7\
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\7\ All comments received on this action are provided in the
docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under docket ID: EPA-R06-OAR-
2020-0161.
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[[Page 24694]]
Our responses to comments received on the October 2020 proposal
follow.
II. Response to Comments
Comment: The commenter states that emissions reductions from Texas
sources would assist in mitigating the public health impacts caused by
ozone in the DFW area. The commenter describes the health effects of
exposure to ozone, including the effects on children and disadvantaged
communities in the DFW area. The commenter mentions that reducing ozone
levels below the 2008 ozone NAAQS of 75 parts per billion (ppb) would
have large and immediate health benefits in Texas. The commenter
includes numerous health studies in support of these statements.
Response: The EPA appreciates the commenter's views and studies
submitted regarding exposure to ground level ozone. This action
addresses certain requirements for the DFW area under the 2008 ozone
NAAQS; however, a more stringent ozone standard of 70 ppb was
promulgated in 2015.\8\ Because the DFW area is also designated as
nonattainment for the 2015 ozone NAAQS, the Texas Commission on
Environmental Quality (TCEQ or State) is working on additional measures
to assist the DFW nonattainment area in attaining the 2015 ozone
NAAQS.\9\
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\8\ See 80 FR 65292 (October 26, 2015).
\9\ See 87 FR 60897 (October 7, 2022).
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Comment: Citing specific statutory provisions and excerpts from the
EPA's implementation rules for the 1997 and 2008 ozone NAAQS, the
commenter asserts that the RFP demonstration for the DFW Serious area
must meet both the general RFP requirements in CAA section 172(c)(2)
that are tied to attainment of the ozone standards and the specific RFP
requirements in CAA section 182(c)(2)(B) for reductions in emissions of
VOCs from baseline emissions. The commenter contends that the RFP
``targets'' cannot be severed from the attainment demonstration and
control strategy and independently approved. The commenter asserts that
because the EPA has not proposed to approve the attainment
demonstration and control strategy for the DFW area, there is no basis
to propose that the RFP demonstration for the DFW area meets the
general RFP requirements in CAA section 172(c)(2).\10\
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\10\ The RFP targets are also referred to as milestones.
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Response: We disagree with the commenter's assertion that the RFP
demonstration does not satisfy RFP requirements because it does not
ensure attainment, which is inconsistent with the EPA's existing
interpretation of RFP requirements established in implementing
regulations for the 2008 ozone NAAQS. As the commenter notes, Serious
ozone nonattainment areas are subject to the general requirements for
nonattainment plans in CAA subpart 1 and the specific requirements for
ozone areas in CAA subpart 2, including the requirements related to RFP
and attainment. This is consistent with the structure of the CAA as
modified under the 1990 amendments, which introduced additional
subparts to part D of title I of the CAA to address requirements for
specific NAAQS pollutants, including ozone (subpart 2), carbon monoxide
(subpart 3), particulate matter (subpart 4), and sulfur oxides,
nitrogen dioxide, and lead (subpart 5).
These subparts apply tailored requirements for these pollutants,
including those based on an area's designation and classification, in
addition to and often in place of the generally applicable provisions
retained in subpart 1. While CAA section 172(c)(2) of subpart 1 states
only that nonattainment plans ``shall require reasonable further
progress,'' CAA sections 182(b)(1) and 182(c)(2)(B) of subpart 2
provide specific percent reduction targets for ozone nonattainment
areas to meet the RFP requirement. Put another way, subpart 2 further
defines RFP for ozone nonattainment areas by specifying the incremental
amount of emissions reduction required by set dates for those
areas.\11\ For Moderate ozone nonattainment areas, CAA section
182(b)(1) defines RFP by setting a specific 15 percent VOC reduction
requirement over the first six years of the plan. For Serious or higher
ozone nonattainment areas, CAA section 182(c)(2)(B) defines RFP by
setting specific annual percent reductions for the period following the
first six-year period and allows averaging over a three-year period.
With respect to the 1-hour ozone NAAQS, the EPA stated that, by meeting
the specific percent reduction requirements in CAA sections 182(b)(1)
and 182(c)(2)(B), the state will also satisfy the general RFP
requirements of section 172(c)(2) for the time period discussed.\12\
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\11\ CAA section 171(1) defines RFP as ``such annual incremental
reductions in emissions of the relevant air pollutant as are
required by this part or may reasonably be required by the
Administrator for the purpose of ensuring attainment of the
applicable national ambient air quality standard by the applicable
date.'' The words ``this part'' in the statutory definition of RFP
refer to part D of title I of the CAA, which contains the general
requirements in subpart 1 and the pollutant-specific requirements in
subparts 2-5 (including the ozone-specific RFP requirements in CAA
sections 182(b)(1) and 182(c)(2)(B) for Serious areas).
\12\ See 57 FR 13498 at 13510 (for Moderate areas) and at 13518
(for Serious areas) (April 16, 1992).
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We agree with the commenter that the EPA has adapted the RFP
requirements under the CAA to implement the three 8-hour ozone NAAQS
that have been promulgated since the 1990 CAA Amendments. In the
``Phase 2'' SIP Requirements Rule for the 1997 Ozone NAAQS (Phase 2
rule),\13\ the EPA adapted the RFP requirements of CAA sections
172(c)(2) and 182(a)(1) so as to require plans to provide for the
minimum required percent reductions and, for certain Moderate areas, to
provide for the reductions as necessary for attainment. See, e.g., 40
CFR 51.910(a)(1)(ii)(A) and (b)(2)(ii)(C).
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\13\ See 70 FR 71612 (November 29, 2005).
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In 2015, the EPA replaced the regulations promulgated through the
Phase 2 rule with the regulations promulgated through the 2008 Ozone
SRR.\14\ In the 2008 Ozone SRR, the EPA established RFP requirements
for the 2008 ozone NAAQS that are similar, in most respects, to those
in the Phase 2 rule for the 1997 ozone NAAQS but that do not define RFP
for certain Moderate areas in terms of the reductions needed for
attainment.\15\ More explicitly, in the 2008 Ozone SRR, the EPA defined
RFP as meaning both the ``emissions reductions required under CAA
section 172(c)(2) which the EPA interprets to be an average 3 percent
per year emissions reductions of either VOC or NOX and CAA sections
182(c)(2)(B) and (c)(2)(C) and the 15 percent reductions over the first
six years of the plan and the following three percent per year average
under 40 CFR 51.1110.'' \16\ Thus, under the 2008 Ozone SRR, the RFP
emissions reductions required for Serious or higher ozone nonattainment
areas under CAA section 172(c)(2) are based on a set annual percentage
found in the CAA, not on the specific attainment needs for the area. In
this regard, we have been even more explicit in our SRR for the 2015
ozone NAAQS: \17\ ``Reasonable further progress (RFP) means the
emissions reductions required under CAA sections 172(c)(2),
182(c)(2)(B), 182(c)(2)(C), and Sec. 51.1310. The EPA
[[Page 24695]]
interprets RFP under CAA section 172(c)(2) to be an average 3 percent
per year emissions reduction of either VOC or NO<INF>X</INF>.\18\
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\14\ 80 FR 12264. Under 40 CFR 51.919 and 51.1119, the
regulations promulgated in the 2008 Ozone SRR replaced the
regulations promulgated in the Phase 2 rule, with certain exceptions
not relevant here.
\15\ Compare RFP requirements for the 1997 ozone NAAQS at 40 CFR
51.910(a)(1)(ii)(A) and (b)(2)(ii)(C) with the analogous provisions
for the 2008 ozone NAAQS at 40 CFR 51.1110(a)(2)(i)(B).
\16\ See 40 CFR 51.1100(t) (emphasis added).
\17\ See 83 FR 62998 (December 6, 2018).
\18\ See 40 CFR 51.1300(l).
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In the 2008 Ozone SRR, which is the set of regulations that governs
the EPA's action here, RFP is defined in terms of percent reduction
from the area's emissions in the baseline year, not in terms of the
reductions necessary for attainment. In other words, for the 2008 ozone
NAAQS, the RFP milestones represent the minimum progress that is
required under the CAA and our regulations, not necessarily all of the
reductions necessary to achieve attainment of the ozone NAAQS, which
could vary largely from one nonattainment area to another.
The DFW area RFP demonstration in the Texas RFP submittal was
developed for the DFW Serious nonattainment area \19\ to meet the
applicable requirements of the CAA and our 2008 Ozone SRR, not the
Phase 2 rule for the 1997 ozone NAAQS. Specifically, we reviewed the
RFP demonstration in the Texas RFP submittal for compliance with the
requirements under 40 CFR 51.1110(a)(2)(i), which adapts the
requirements under CAA sections 172(c)(2) and 182(b)(1) for Moderate
areas, and 40 CFR 51.1110(a)(2)(ii), which adapts the requirements of
CAA section 182(c)(2)(B) for Serious areas.\20\ The requirements under
40 CFR 51.1110(a)(2)(i) and (ii) are cumulative and together they
require a 15 percent reduction in emissions from the baseline year
within six years after the baseline year and average emissions
reductions of three percent per year for all remaining three-year
periods after the first six-year period until the year of the area's
attainment date. As explained in our October 2020 proposal, based on
our evaluation, we found that the Texas RFP submittal for the DFW area
provided for the percent reductions required under the 2008 Ozone
SRR.\21\
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\19\ The DFW area was reclassified from Serious to Severe
nonattainment for the 2008 ozone NAAQS (87 FR 60926, October 7,
2022). The RFP and other SIP requirements for the Severe
nonattainment area will be addressed in a separate rulemaking
action.
\20\ 40 CFR 51.1110(a)(2) applies to the DFW area because DFW is
an area with an approved 1-hour ozone NAAQS 15 percent VOC Rate of
Progress (ROP) plan.
\21\ 85 FR 68268, at 68274-68276.
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Under the 2008 Ozone SRR, the RFP demonstration for the 2008 ozone
NAAQS does not need to provide for the reductions needed for
attainment. Thus, contrary to the commenter's assertion, the RFP
demonstration for the DFW area can be severed from the attainment
demonstration and control strategy and can be independently approved,
and we do so in this final rule by approving the RFP demonstration for
the DFW area in the Texas RFP submittal while deferring action on the
attainment demonstration.
Comment: The commenter asserts that there is no basis to conclude
that the DFW RFP Plan meets the requirements for VOC emission
reductions, as it relies on substitute reductions in emissions of
NO<INF>X</INF> that have not been shown to be equivalent to the
required VOC emission reductions.
Response: Our October 2020 proposal did not address how the
NO<INF>X</INF> reductions in the DFW RFP plan are at least as effective
as using VOC reductions in reducing ozone. Consequently, we published a
December 2022 supplemental proposal, which addresses the NO<INF>X</INF>
issue. Our December 2022 supplemental proposal describes in detail
ozone chemistry in the DFW area and evaluates the use of NO<INF>X</INF>
substitution in the Texas submittal. As described in our December 2022
supplemental proposal, the State's review of DFW ozone and
NO<INF>X</INF> concentrations for each day of the week links levels of
NO<INF>X,</INF> rather than VOC, with ozone levels, indicating that
decreasing levels of NO<INF>X</INF> would result in decreasing levels
of ozone. The State's ambient NO<INF>X</INF> and ozone data in the DFW
area indicate that those areas of DFW with the highest ozone values are
NO<INF>X</INF>-limited and there are no violating monitors in the DFW
areas described as VOC-limited.\22\ Our December 2022 supplemental
proposal also describes a recent analysis by the EPA that points to the
DFW area as NO<INF>X</INF>-limited.\23\ Our December 2022 action
proposes that Texas's use of NO<INF>X</INF> substitution in the DFW
area is reasonable and appropriately implemented. Our December 2022
action also proposes to approve the NO<INF>X</INF> substitution
provided in the Texas RFP submittal for the DFW area as consistent with
CAA section 182(c)(2)(C). The comment period for the December 2022
supplemental proposal was open from December 20, 2022, to January 19,
2023. We did not receive public comments on our December 2022
supplemental proposal that address or otherwise challenge the technical
basis for NO<INF>X</INF> substitution in the DFW area.
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\22\ The phrase ``NO<INF>X</INF>-limited'' means that ozone
concentrations are more sensitive to ambient NO<INF>X</INF> levels
than to ambient VOC levels. Therefore, in a NO<INF>X</INF>-limited
area, the formation of ozone is limited by the amount of
NO<INF>X</INF> present and ozone concentrations are most effectively
reduced by lowering NO<INF>X</INF> emissions, rather than lowering
emissions of VOC. Additional VOC does not lead to the formation of
more ozone in areas where the reaction is NO<INF>X</INF>-limited.
\23\ These analyses are described in the December 2022
supplemental proposal and are posted in the docket for this action.
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Comment: The commenter provides numerous statements regarding the
EPA's NO<INF>X</INF> Substitution Guidance,\24\ contending that if the
EPA intended to adopt the positions set forth in the NO<INF>X</INF>
Substitution Guidance, the proposal would be arbitrary and capricious
and contrary to law because of problems with the NO<INF>X</INF>
Substitution Guidance. These comments assert generally that the
NO<INF>X</INF> Substitution Guidance contradicts CAA section
182(c)(2)(C) by recommending a procedure that fails to demonstrate any
equivalence between VOC and NO<INF>X</INF> reductions, relies on
incorrect policy assumptions, and gives legal justifications that are
without merit.
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\24\ NO<INF>X</INF> Substitution Guidance, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency,
December 1993, available at <a href="https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/19931201_oaqps_nox_substitution_guidance.pdf">https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/19931201_oaqps_nox_substitution_guidance.pdf</a>.
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Response: Our proposed approval of the RFP plan's use of
NO<INF>X</INF> substitution is compatible with the NO<INF>X</INF>
Substitution Guidance, which, while non-binding and not having the
force of regulation, provides a recommended procedure for substituting
NO<INF>X</INF> emission reductions for VOC reductions on a percentage
basis, consistent with the State's identified emissions reduction
measures, and RFP milestones and requirements. As noted earlier in
these responses and in our December 2022 supplemental proposal, our
approval of the State's use of NO<INF>X</INF> substitution is supported
by conditions in the DFW area and EPA analyses and is consistent with
the requirements in CAA section 182(c)(2)(C). Comments relating solely
to the NO<INF>X</INF> Substitution Guidance are outside the scope of
this rulemaking action.
Comment: The commenter states that the EPA must disapprove the
contingency measures. The commenter also asserts that the
NO<INF>X</INF> contingency measures have not been shown to be efficient
in reducing ozone concentrations.
Response: On January 29, 2021, the U.S. Court of Appeals for the
District of Columbia Circuit (``D.C. Circuit'') issued a decision in
response to challenges to EPA's 2015 and 2018 rules implementing the
NAAQS for ozone, (80 FR 12264 and 83 FR 62998 (December 6, 2018)).
Sierra Club, et al. v. EPA, 985 F.3d 1055 (D.C. Cir. 2021). Among the
rulings in this decision, the D.C. Circuit vacated EPA's interpretation
of the CAA to allow states to rely on already implemented control
measures to meet the statutory
[[Page 24696]]
requirements of section 172(c)(9) or 182(c)(9) for contingency measures
in nonattainment plans for the ozone NAAQS (see 83 FR 62998, 63026-27).
The EPA is reexamining the contingency measures portion of the Texas
RFP submittal for the DFW area considering the D.C. Circuit decision.
Therefore, we are not taking final action at this time on the
contingency measures submitted as part of the May 13, 2020, Texas RFP
submittal for the DFW area included in the October 2020 proposal. The
EPA plans to address the contingency measures in a separate action.
Comment: The commenter contends that the motor vehicle emissions
budgets must be consistent with attainment requirements as well as RFP
requirements and in the absence of an approved attainment demonstration
and control strategy, the RFP budgets must be disapproved. In support
of this contention, the commenter cites selected portions of CAA
section 176(c) and the EPA's transportation conformity rule. First,
under section 176(c)(1)(B)(iii), the commenter notes that a Federal
action cannot ``delay timely attainment of any standard,'' and without
an approved attainment demonstration and control strategy, which could
require VOC and NO<INF>X</INF> emissions reductions beyond those
required by section 182(c)(2)(C), there is no way to tell if a
transportation plan, improvement program, or project will ``delay
timely attainment'' of the 2008 ozone standards, even if it stays
within the proposed RFP budgets. Second, the commenter notes that,
under the EPA's rules for transportation conformity, the term ``control
strategy implementation plan revision'' is defined as the
``implementation plan which contains specific strategies for
controlling the emissions of and reducing ambient levels of pollutants
in order to satisfy CAA requirements for demonstrations of reasonable
further progress and attainment.'' \25\ For attainment plans (as
opposed to maintenance plans), budgets are in part defined as ``that
portion of the total allowable emissions defined in the submitted or
approved control strategy implementation plan revision.'' \26\ Thus,
the commenter argues that the budgets depend on the control strategy
implementation plan revision, which must demonstrate both RFP and
attainment.
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\25\ 40 CFR 93.101 (emphasis added).
\26\ Id. (emphasis added).
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In addition, the commenter notes that the particular budgets
proposed for approval are derived from the projected on-road mobile
source emissions estimates in the attainment year (2020) emissions
inventory upon which the attainment demonstration is based, and thus
must be consistent with attainment requirements as well as RFP
requirements. Because the EPA has not approved the attainment
demonstration, including the projected attainment year emissions
inventory, the commenter asserts that the EPA cannot approve the
budgets that derive from that inventory.
Response: First, we acknowledge that the budgets are derived from
the projected attainment year (2020) emissions inventory for the DFW
Serious nonattainment area. However, year 2020 was both an RFP
milestone year and the attainment year for the DFW area.\27\ Therefore,
the projected 2020 emissions inventory was the basis for both the RFP
demonstration for that milestone year and for the attainment
demonstration. As explained earlier in these responses, the RFP
demonstration and attainment demonstration requirements are independent
requirements under the 2008 Ozone SRR and thus, can be approved
separately. In this final action, we are approving the budgets only for
RFP purposes.
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\27\ As mentioned earlier in this document, the DFW area was
reclassified from Serious to Severe nonattainment for the 2008 ozone
NAAQS. The attainment date for the Severe nonattainment area is July
20, 2027 (87 FR 60926). Therefore, and consistent with 40 CFR
51.1100(h), the attainment year ozone season for the DFW Severe
nonattainment area is 2026. The RFP and other SIP requirements for
the Severe nonattainment area will be addressed in a separate
rulemaking action.
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Second, we note that CAA section 176(c)(4)(B) obligates the EPA to
promulgate, and periodically update, criteria and procedures for
demonstrating and assuring conformity in the case of transportation
plans, programs, and projects, and we have done so at 40 CFR part 93,
subpart A (``Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Laws'') (herein,
``transportation conformity rule''). Our transportation conformity rule
defines ``motor vehicle emissions budget'' as ``that portion of the
total allowable emissions defined in the submitted or approved control
strategy implementation plan revision or maintenance plan for a certain
date for the purpose of meeting reasonable further progress milestones
or demonstrating attainment or maintenance of the NAAQS. . . .'' \28\
Further, among the criteria we must use when evaluating a budget for
adequacy or approval, is the criterion at 40 CFR 93.118(e)(4)(iv) that
requires budgets, when considered together with all other emissions
sources, to be consistent with applicable requirements for RFP,
attainment, or maintenance (whichever is relevant to the given
implementation plan submission).\29\
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\28\ See 40 CFR 93.101 (emphasis added).
\29\ See 40 CFR 93.118(e)(4)(iv) (emphases added).
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Thus, under our transportation conformity rule, the EPA can approve
motor vehicle emissions budgets if we find them consistent, when
considered together with all other emissions sources, with the
applicable requirements for RFP or attainment; it is not required that
the budget be consistent with RFP and attainment but only that they are
consistent with the requirement that is relevant for purposes of the
SIP. In this instance, the relevant requirements are those for RFP, not
attainment, and we are approving the budgets as consistent with those
requirements, not the attainment requirements, consistent with the
transportation conformity rule.\30\ This interpretation has been upheld
by the Ninth Circuit in Natural Resources Defense Council v. EPA, 638
F.3d 1183 (9th Cir. 2011). In this case, the petitioners similarly
argued that the CAA and the EPA's implementing regulations require the
EPA to consider attainment data when determining the adequacy of
budgets for milestone years,\31\ but the Ninth Circuit agreed with the
EPA that the EPA's transportation conformity rule provides otherwise.
More specifically, the court agreed with the EPA that, for a milestone
year, a budget need only demonstrate RFP toward the ultimate goal of
attainment.\32\
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\30\ The commenter claims that the EPA's adequacy determination
is irrelevant for purposes of whether the EPA can approve the motor
vehicle emissions budgets (MVEBs), because the EPA has stated that
its adequacy review ``should not be used to prejudge EPA's ultimate
approval or disapproval of the SIP.'' The EPA agrees that the
adequacy determination is based on a cursory review of the SIP
submittal when it is made prior to action on the SIP submittal
itself. However, today's adequacy determination is based on the
EPA's complete review, and approval, of the RFP demonstration for
the DFW area within the Texas RFP submittal.
\31\ Natural Resources Defense Council v. EPA, 638 F.3d 1183,
1191 (9th Cir. 2011).
\32\ Id.
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On June 3, 2020, EPA posted the availability of the DFW area
NO<INF>X</INF> and VOC budgets on EPA's website for the purpose of
soliciting public comments, as part of the adequacy process.\33\ The
comment period closed on July 3, 2020, and we received no comments.
EPA's adequacy review of Texas's submitted budgets indicates that the
budgets meet
[[Page 24697]]
the adequacy criteria set forth by 40 CFR 93.118(e)(4), as follows:
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\33\ See <a href="https://www.epa.gov/state-and-local-transportation/adequacy-review-state-implementation-plan-sip-submissions-conformity">https://www.epa.gov/state-and-local-transportation/adequacy-review-state-implementation-plan-sip-submissions-conformity</a>.
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<bullet> The submitted control strategy implementation plan
revision or maintenance plan was endorsed by the Governor (or his or
her designee) and was subject to a State public hearing: The SIP
revision was submitted to EPA by the Chairman of the Texas Commission
on Environmental Quality, who is the Governor's designee.
<bullet> Before the control strategy implementation plan or
maintenance plan was submitted to EPA, consultation among federal,
State, and local agencies occurred; full implementation plan
documentation was provided to EPA; and EPA's stated concerns, if any,
were addressed: Texas conducted an interagency consultation process
involving EPA and the U.S. Department of Transportation, the Texas
Department of Transportation and the DFW area Metropolitan Planning
Organization. All comments and concerns were addressed prior to the
final submittal.
<bullet> The motor vehicle emissions budget(s) is clearly
identified and precisely quantified: The budgets were clearly
identified and quantified in Texas's submittal and presented in Table 6
of our October 2020 proposal. The budgets are presented again in this
final action in Table 1.
<bullet> The motor vehicle emissions budget(s), when considered
together with all other emissions sources, is consistent with
applicable requirements for reasonable further progress, attainment, or
maintenance (whichever is relevant to the given implementation plan
submission): The 2020 budgets apply a safety margin derived from
surplus emissions reductions from the 2020 RFP demonstration and are
therefore larger than the on-road mobile source inventory for 2020.
However, the DFW RFP plan demonstrates that these budgets are
consistent with reasonable further progress when considered with all
other source categories for the 2020 RFP milestone year. The 2020
budgets were developed with appropriate data inputs for the 2020
milestone year, including vehicle miles of travel, speeds, and
emissions factors.
<bullet> The motor vehicle emissions budget(s) is consistent with
and clearly related to the emissions inventory and the control measures
in the submitted control strategy implementation plan revision or
maintenance plan: The budgets were developed from the on-road mobile
source inventories, including all applicable state and Federal control
measures. Inputs related to inspection and maintenance and fuels are
consistent with Texas's Federally approved control programs.
<bullet> Revisions to previously submitted control strategy
implementation plans or maintenance plans explain and document any
changes to previously submitted budgets and control measures; impacts
on point and area source emissions; any changes to established safety
margins (see 40 CFR 93.101 for definition); and reasons for the changes
(including the basis for any changes related to emission factors or
estimates of vehicle miles traveled): The submitted RFP plan
establishes new 2020 budgets to ensure continued progress towards
attainment of the standards; therefore, this criterion is not
applicable in this circumstance. In light of our responses to the
comments and for the reasons provided in the October 2020 proposal and
December 2022 supplemental proposal, we are taking final action to
approve the RFP demonstration and the related motor vehicle emissions
budgets and are finding that the budgets are adequate for
transportation conformity purposes.
Table 1--RFP Motor Vehicle Emissions Budgets for DFW
[In tons per day]
------------------------------------------------------------------------
Year NOX VOC
------------------------------------------------------------------------
2020................................................. 107.25 62.41
------------------------------------------------------------------------
III. Final Action
We are approving revisions to the Texas SIP that address the RFP
requirements for the DFW Serious ozone nonattainment area for the 2008
ozone NAAQS. Specifically, we are approving the RFP demonstration and
associated motor vehicle emissions budgets. We are also notifying the
public that EPA finds the budgets for NO<INF>X</INF> and VOC for the
DFW area are adequate for the purpose of transportation conformity.
Within 24 months from May 24, 2023, the transportation partners will
need to demonstrate conformity to the new NO<INF>X</INF> and VOC MVEBs
pursuant to 40 CFR 93.104(e)(3).
IV. Environmental Justice Considerations
As stated in our December 2022 supplemental proposal and for
informational purposes only, EPA reviewed demographic data, which
provides an assessment of individual demographic groups of the
populations living within the 10-county DFW ozone nonattainment area
(Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall,
Tarrant, and Wise counties). EPA then compared the data to the national
average. The results of the demographic analysis indicate that, for
populations within Collin, Dallas, Denton, Ellis, Kaufman, and Tarrant
counties, the percent people of color (persons who reported their race
as a category other than White alone (not Hispanic or Latino)) is
higher than the national average (ranging from 46.1 to 75.4 percent
versus 43.1 percent). For populations within Johnson, Parker, Rockwall,
and Wise counties, the percent people of color (persons who reported
their race as a category other than White alone (not Hispanic or
Latino)) is lower than the national average (ranging from 19.7 to 35.9
percent versus 43.1 percent). Within people of color, the percent of
the population that is Black or African American alone is higher than
the national average in Dallas, Ellis, Kaufman, and Tarrant counties
(ranging from 14.4 to 23.8 percent versus 13.6 percent) and lower than
the national average in the other six DFW counties (ranging from 1.8 to
11.9 percent versus 13.6 percent). Within people of color, the percent
of the population that is American Indian/Alaska Native is lower than
the national average in all 10 of the DFW counties (ranging 0.7 percent
to 1.2 percent versus 1.3 percent). Within people of color, the percent
of the population that is Asian alone is higher than the national
average in Collin, Dallas, and Denton counties (ranging from 7.0 to
17.5 percent versus 6.1 percent) and lower than the national average in
the other seven DFW counties (ranging from 0.6 to 6.0 percent versus
6.1 percent). Within people of color, the percent of the population
that is Native Hawaiian and Other Pacific Islander alone is higher than
the national average in Johnson County (0.5 percent versus 0.3
percent), equal to the national average in Tarrant County (0.3
percent), and lower than the national average in the other eight DFW
counties (0.1 percent versus 0.3 percent). Within people of color, the
percent of the population that is two or more races is equal to the
national average in Collin County (2.9 percent) and lower than the
national average in the other nine DFW counties (ranging from 2.0 to
2.8 percent versus 2.9 percent). Within people of color, the percent of
the population that is Hispanic or Latino is lower than the national
average in Collin and Parker counties (ranging from 14.0 to 15.8
percent versus 18.9 percent) and higher than the national average in
the other eight DFW counties (ranging from 20.0 to 41.4 percent versus
18.9 percent). The percent of people living in poverty in Dallas County
is higher than the
[[Page 24698]]
national average (13.7 percent versus 11.6 percent) and lower than the
national average in the other nine DFW counties (ranging from 4.8 to
10.5 percent versus 11.6 percent).\34\
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\34\ Demographic data from the U.S. Census Bureau: <a href="https://www.census.gov/quickfacts/fact/table/US/PST045222">https://www.census.gov/quickfacts/fact/table/US/PST045222</a>.
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This final action does not add new rules to the SIP but
demonstrates ongoing reductions of ozone precursor emissions, as
required by the CAA. Information on ozone and its relationship to
negative health impacts can be found at <a href="https://www.epa.gov/ground-level-ozone-pollution">https://www.epa.gov/ground-level-ozone-pollution</a>.\35\ We expect that the continuing emission
reductions demonstrated in this action will generally be neutral or
contribute to reduced environmental and health impacts on all
populations in the 10-county DFW ozone nonattainment area, including
people of color and low-income populations. Further, there is no
information in the record indicating that this action is expected to
have disproportionately high or adverse human health or environmental
effects on a particular group of people.
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\35\ See also, 80 FR 65292 (October 26, 2015).
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V. Statutory and Executive Order Reviews
Under the Clean Air Act, 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, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is 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.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is 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 CAA; and
<bullet> Does 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, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The TCEQ did not evaluate EJ considerations as part of its SIP
submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. EPA performed an EJ analysis,
as is described above in the section titled, ``Environmental Justice
Considerations.'' The analysis was done for the purpose of providing
additional context and information about this rulemaking to the public,
not as a basis of the action. Due to the nature of the action being
taken here, this action is expected to have a neutral to positive
impact on the air quality of the affected area. In addition, there is
no information in the record upon which this decision is based
inconsistent with the stated goal of E.O. 12898 of achieving EJ for
people of color, low-income populations, and Indigenous peoples.
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 23, 2023. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.
Dated: April 17, 2023.
Earthea Nance,
Regional Administrator, Region 6.
For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Texas
0
2. In Sec. 52.2270(e), the table titled ``EPA Approved Nonregulatory
Provisions and Quasi-Regulatory Measures in the Texas SIP'' is amended
by adding the entry ``Reasonable Further
[[Page 24699]]
Progress (RFP) Plan and RFP Motor Vehicle Emission Budgets for 2020''
at the end of the table to read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(e) * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State
Name of SIP provision Applicable geographic submittal/ EPA approval date Comments
or nonattainment area effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Reasonable Further Progress (RFP) Collin, Dallas, 3/4/2020 4/24/2023 [Insert
Plan and RFP Motor Vehicle Denton, Ellis, Federal Register
Emission Budgets for 2020. Johnson, Kaufman, citation].
Parker, Rockwall,
Tarrant and Wise
Counties, TX.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2023-08436 Filed 4-21-23; 8:45 am]
BILLING CODE 6560-50-P
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