Proposed Rule2024-01525
Clean Air Act Reclassification of the San Antonio, Dallas-Fort Worth, and Houston-Galveston Brazoria Ozone Nonattainment Areas; TX
Primary source
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Published
January 26, 2024
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA), the Environmental Protection Agency (EPA) is proposing to grant a request from the Governor of Texas to reclassify the San Antonio, Dallas-Fort Worth (DFW), and Houston-Galveston Brazoria (HGB) ozone nonattainment areas from Moderate to Serious for the 2015 ozone National Ambient Air Quality Standards (NAAQS). The EPA is also herein outlining its interpretation that following reclassification, a state is no longer required to submit SIP revisions addressing the following requirements related to the prior reclassification level for an ozone nonattainment area: a demonstration of attainment by the prior attainment date; a Reasonably Available Control Measures (RACM) analysis tied to the prior attainment date; and contingency measures specifically related to the area's failure to attain by the prior attainment date. The EPA is also proposing deadlines for the Texas Commission on Environmental Quality (TCEQ or State) to submit revisions to the State Implementation Plan (SIP) addressing the Serious area requirements and for the first transportation control demonstrations for these areas. The EPA is also proposing deadlines for implementation of new Reasonably Available Control Technology (RACT) rules and for any new or revised Enhanced vehicle Inspection and Maintenance (I/M) programs.
Full Text
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<title>Federal Register, Volume 89 Issue 18 (Friday, January 26, 2024)</title>
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[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Proposed Rules]
[Pages 5145-5151]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01525]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R06-OAR-2023-0536; FRL-11640-01-R6]
Clean Air Act Reclassification of the San Antonio, Dallas-Fort
Worth, and Houston-Galveston Brazoria Ozone Nonattainment Areas; TX
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA), the Environmental
Protection Agency (EPA) is proposing to grant a request from the
Governor of Texas to reclassify the San Antonio, Dallas-Fort Worth
(DFW), and Houston-Galveston Brazoria (HGB) ozone nonattainment areas
from Moderate to Serious for the 2015 ozone National Ambient Air
Quality Standards (NAAQS). The EPA is also herein outlining its
interpretation that following reclassification, a state is no longer
required to submit SIP revisions addressing the following requirements
related to the prior reclassification level for an ozone nonattainment
area: a demonstration of attainment by the prior attainment date; a
Reasonably Available Control Measures (RACM) analysis tied to the prior
attainment date; and contingency measures specifically related to the
area's failure to attain by the prior attainment date. The EPA is also
proposing deadlines for the Texas Commission on Environmental Quality
(TCEQ or State) to submit revisions to the State Implementation Plan
(SIP) addressing the Serious area requirements and for the first
transportation control demonstrations for these areas. The EPA is also
proposing deadlines for implementation of new Reasonably Available
Control Technology (RACT) rules and for any new or revised Enhanced
vehicle Inspection and Maintenance (I/M) programs.
DATES: Written comments should be received on or before February 26,
2024.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2023-0536, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, please contact
Ms. Carrie Paige, 214-665-6521, <a href="/cdn-cgi/l/email-protection#fa8a9b939d9fd4999b8888939fba9f8a9bd49d958c"><span class="__cf_email__" data-cfemail="ed9d8c848a88c38e8c9f9f8488ad889d8cc38a829b">[email protected]</span></a>. For the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
Docket: The index to the docket for this action is available
electronically at <a href="http://www.regulations.gov">www.regulations.gov</a>. While all documents in the
docket are listed in the index, some information may not be publicly
available due to docket file size restrictions or content (e.g., CBI).
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#1161707876743f727063637874517461703f767e67"><span class="__cf_email__" data-cfemail="91e1f0f8f6f4bff2f0e3e3f8f4d1f4e1f0bff6fee7">[email protected]</span></a>.
The EPA encourages the public to submit comments via <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 wherever ``we'' or
``our'' is used, we mean the EPA.
I. EPA's Proposed Action
The EPA is proposing to grant a request submitted by Texas Governor
Greg Abbott to reclassify the San Antonio, DFW, and HGB ozone
nonattainment areas from Moderate to Serious for the 2015 ozone NAAQS.
The EPA is also herein outlining its interpretation that following
reclassification, a state is no longer required to submit SIP revisions
addressing the following requirements related to the prior
reclassification level for an ozone nonattainment area: (1) a
demonstration of attainment by the prior attainment date, (2) a RACM
analysis tied to the prior attainment date, and (3) contingency
measures specifically related to the area's failure to attain by the
prior attainment date. Accordingly, if EPA were to finalize its
reclassification of the San Antonio, DFW, and HGB areas to Serious for
the 2015 ozone NAAQS, Texas would no longer be required to submit these
three identified SIP elements as they relate to the Moderate
classification level, and EPA's October 18, 2023, Finding of Failure to
Submit \1\ would be mooted as to these specific SIP elements.
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\1\ 88 FR 71757, (October 18, 2023). Henceforth referred to as
the ``October 2023 findings.''
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The EPA is also proposing a deadline for the TCEQ to submit
revisions to the SIP addressing the Serious area requirements for these
areas; specifically, the EPA is proposing and taking comment on a range
of deadlines, from 12 to 18 months from the effective date of the EPA's
final rule reclassifying the San Antonio, DFW, and HGB areas as
Serious, for the TCEQ to submit the revised SIPs addressing the Serious
area requirements for these nonattainment areas. The EPA is also
proposing a deadline for implementation of new RACT rules as
expeditiously as practicable but no later than January 1,
[[Page 5146]]
2026. Additionally, the EPA is proposing a deadline for any new or
revised Enhanced vehicle I/M programs to be fully implemented as
expeditiously as practicable but no later than four years after the
effective date of EPA's final rule reclassifying these areas as
Serious. Lastly, the EPA is proposing a deadline for the first
transportation control demonstration, as required by CAA section
182(c)(5), to be submitted two years after the attainment demonstration
due date.
II. Background
On October 1, 2015, the EPA strengthened the primary and secondary
eight-hour ozone NAAQS from 0.075 parts per million (ppm) to 0.070 ppm
(``2015 ozone NAAQS'').\2\ In accordance with CAA section 107(d), the
EPA must designate an area ``nonattainment'' if it is violating the
NAAQS or if it is contributing to a violation of the NAAQS in a nearby
area. With respect to the ozone NAAQS, the EPA further classifies
nonattainment areas as Marginal, Moderate, Serious, Severe, or Extreme,
depending upon the ozone design value (DV) for the area.\3\ See CAA
section 181(a)(1). As a general matter, higher classified ozone
nonattainment areas are subject to a greater number of, and more
stringent, CAA planning requirements than lower classified areas and
are allowed more time to attain the ozone NAAQS. See, generally,
subpart 2 of part D of title I of the CAA.
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\2\ 80 FR 65292 (October 26, 2015).
\3\ For the 2015 ozone NAAQS, the DV at each monitoring site is
the annual fourth-highest daily maximum 8-hour average ozone
concentration, averaged over three consecutive years. For areas with
more than one monitoring site, the highest DV among the monitoring
sites is the DV for such areas.
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Effective August 3, 2018, the EPA designated and classified the DFW
and HGB areas under the CAA as Marginal nonattainment for the 2015
ozone NAAQS.\4\ Effective September 24, 2018, the EPA designated and
classified the San Antonio area under the CAA as Marginal nonattainment
for the 2015 ozone NAAQS.\5\ The EPA's classification of the San
Antonio, DFW, and HGB ozone nonattainment areas as Marginal established
a requirement that these areas attain the 2015 ozone NAAQS as
expeditiously as practicable, but no later than three years from the
effective date of designation, i.e., August 3, 2021, for the DFW and
HGB areas and September 24, 2021, for the San Antonio area. Consistent
with CAA section 181(b)(2), the EPA is required to determine whether an
area attained the ozone NAAQS by the applicable attainment date.
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\4\ 83 FR 25776 (June 4, 2018). The DFW nonattainment area for
the 2015 ozone NAAQS includes nine counties: Collin, Dallas, Denton,
Ellis, Johnson, Kaufman, Parker, Tarrant, and Wise. The HGB
nonattainment area for the 2015 ozone NAAQS includes six counties:
Brazoria, Chambers, Fort Bend, Galveston, Harris, and Montgomery.
\5\ 83 FR 35136 (July 25, 2018). The San Antonio nonattainment
area includes all of Bexar County and is referred to as the ``Bexar
County nonattainment area'' in the reclassification request from the
Governor of Texas, discussed in Section II of this proposal.
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In October 2022, the EPA determined that the DFW and HGB areas
failed to attain the 2015 ozone NAAQS by the August 3, 2021, attainment
date and reclassified these areas as Moderate for the 2015 ozone NAAQS
with an attainment date of August 3, 2024. In that same action, the EPA
also determined that the San Antonio area failed to attain the 2015
ozone NAAQS by the September 24, 2021, attainment date and reclassified
the area as Moderate for the 2015 ozone NAAQS with an attainment date
of September 24, 2024 (see 87 FR 60897, October 7, 2022).
On October 13, 2023, the EPA signed a finding that 11 states failed
to submit SIP revisions required by the CAA in a timely manner for
certain nonattainment areas reclassified as Moderate for the 2015 ozone
NAAQS.\6\ This final action was effective on November 17, 2023, and
triggered certain CAA deadlines for the imposition of sanctions if a
state does not submit a complete SIP addressing the outstanding
requirements and for the EPA to promulgate a Federal Implementation
Plan (FIP) if the EPA does not approve the state's SIP revision
addressing the outstanding requirements.\7\
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\6\ 88 FR 71757, (October 18, 2023).
\7\ If the EPA has not affirmatively determined that a state has
made the required complete SIP submittal for an area within 18
months of the effective date of finding, then the offset sanction
identified in CAA section 179(b)(2) will apply in the affected
nonattainment area (CAA section 179(a) and (b) and 40 CFR 52.31). If
the EPA has not affirmatively determined that a state has made the
required complete SIP submittal within 6 months after the offset
sanction is imposed, then the highway funding sanction will apply in
the affected nonattainment area (CAA section 179(b)(1) and 40 CFR
52.31). The EPA must promulgate a FIP no later than 2 years after
issuance of the FFTS if an affected state has not submitted, and the
EPA has not approved, the required SIP submittal.
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Texas is included in the October 2023 findings for failing to
submit required SIP revisions for the San Antonio, DFW, and HGB areas.
The required Moderate area SIP elements that the TCEQ failed to submit
include Nonattainment New Source Review (NNSR), Reasonable Further
Progress (RFP), the attainment demonstration, RACM, RACT, contingency
measures, and Basic I/M.\8\
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\8\ See the FFTS for more detail--the FFTS is also posted in the
docket for this action.
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III. Voluntary Reclassification of the San Antonio, DFW, and HGB Areas
as Serious Ozone Nonattainment
On October 12, 2023, Texas Governor Greg Abbott submitted a request
to the EPA Administrator to reclassify the San Antonio, DFW, and HGB
ozone nonattainment areas from Moderate to Serious for the 2015 ozone
NAAQS.\9\ A Serious classification is one category higher than the
current classification of Moderate. If these areas are classified as
Serious, the DFW and HGB areas must attain the 2015 ozone NAAQS no
later than August 3, 2027, and the San Antonio area must attain the
2015 ozone NAAQS no later than September 24, 2027.
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\9\ The submitted request is posted in the docket for this
action.
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CAA section 181(b)(3) provides for ``voluntary reclassification''
and states that ``[t]he Administrator shall grant the request of any
state to reclassify a nonattainment area in that State . . . to a
higher classification. The Administrator shall publish a notice in the
Federal Register of any such request and of action by the Administrator
granting the request.'' The EPA herein is providing such notice of the
request and is proposing to grant the request from Texas. The EPA reads
the relevant statutory language to provide no discretion to deny the
request made in this instance.
IV. Consequences of Reclassification
A. Permitting for Stationary Air Pollution Sources
Upon reclassification, stationary air pollution sources in the San
Antonio, DFW, and HGB ozone nonattainment areas will be subject to
Serious ozone nonattainment area New Source Review (NSR) and Title V
permit requirements. The source applicability thresholds for major
sources and major source modification emissions will be 50 tons per
year (tpy) for volatile organic compounds (VOC) and nitrogen oxides
(NO<INF>X</INF>). For new and modified major stationary sources subject
to review under Texas Administrative Code Title 30, Chapter 116,
Section 116.150 (30 TAC 116.150) in the EPA approved SIP,\10\ VOC and
NO<INF>X</INF> emission increases from the proposed construction of the
[[Page 5147]]
new or modified major stationary sources must be offset by emission
reductions by a minimum offset ratio of 1.20 to 1 (see CAA section
182(c)(10)). We note that the DFW and HGB areas are classified as
Severe under the 2008 ozone NAAQS and thus, the more stringent Severe
area requirements are currently being implemented in those areas.\11\
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\10\ Specifically, we are referring to the EPA-approved Texas
SIP at Section 116.150, titled ``New Major Source or Major
Modification in Ozone Nonattainment Area.'' 60 FR 49781 (September
27, 1995) and subsequent revisions at 77 FR 65119 (October 25,
2012).
\11\ For Severe ozone nonattainment areas, the nonattainment NSR
source applicability thresholds for major sources and major source
modification emissions are 25 tpy for VOC and NO<INF>X</INF>, and
the minimum emissions offset ratio is 1.30 to 1 (see CAA sections
182(d) and 182(d)(2)).
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B. Status of Certain Requirements of Previous Classification
EPA interprets the ozone nonattainment requirements of the CAA to
provide that when an ozone nonattainment area is reclassified, the
attainment date for the prior classification is superseded by the
attainment date for the new classification. Thus, once a nonattainment
area has been reclassified and as a result has a new statutory
attainment deadline, certain SIP elements (in this action, the
attainment demonstration, RACM, and contingency measures for failure to
attain) which are tied to the applicable attainment deadline are no
longer required for the lower, superseded classification. Requiring a
state to submit or EPA to act on such SIP elements would make no
logical or practical sense. Generally, after EPA has determined that an
area has failed to attain by its applicable attainment date, the area
is reclassified. Consequently, that former, superseded classification's
attainment date is in the past and is no longer applicable, and it is
no longer meaningful to evaluate whether a plan demonstrates that an
area would attain by that superseded date. At that point in time, no
changes could be made to the attainment demonstration that would change
facts that have already come to pass, i.e., that the area has failed to
attain by its applicable attainment date.\12\ This reasoning also
applies in the case of RACM, which for ozone is submitted with the
attainment demonstration demonstrating that an area has adopted all
RACM necessary to demonstrate attainment as expeditiously as
practicable.\13\ EPA has long evaluated RACM in terms of whether there
are any reasonably available control measures that could advance an
area's attainment date. In the situation discussed herein, the
attainment date is in the past, so it is not possible to conduct an
evaluation as to whether attainment could be advanced. Accordingly, EPA
interprets the CAA such that following reclassification, any required
attainment demonstration and associated RACM analysis must be done with
respect to the new and current applicable attainment date.
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\12\ See 42 U.S.C. 7511a(c)(2)(A). As required by the CAA, a
state must submit ``[a] demonstration that the plan, as revised,
will provide for attainment of the ozone [NAAQS] by the applicable
attainment date.'' [emphasis added]
\13\ See 40 CFR 51.1312(c). See Sierra Club v. EPA, No. 01-1070
(D.C. Cir. 2002) (holding that the ``RACM requirement is to be
understood as a means of meeting the deadline for attainment'').
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The same logic applies for voluntary reclassifications. Section
181(b)(3) of the CAA clearly authorizes states to request
reclassification for an ozone nonattainment area, as Texas did here.
The effect of EPA's grant of such a request would be to reclassify the
area and establish a new attainment date for the higher classification,
which would replace the old attainment date associated with the area's
former, superseded classification. A voluntary reclassification to a
higher classification could occur before the lower classification's
attainment date but would still establish a new attainment date. Thus,
voluntary reclassification would still render inapplicable those
requirements specifically tied to the lower classification's attainment
date, which would no longer be applicable. The CAA does not require
attainment demonstrations (and associated RACM analysis) for attainment
dates associated with classifications that are not applicable to the
area. Moreover, following voluntary reclassification from Moderate to
Serious before the Moderate attainment date, the EPA is no longer
required to determine whether the area attained by the no longer
applicable Moderate attainment date. Because the EPA would not issue
such a finding of failure to attain, contingency measures for failure
to attain by the Moderate attainment date no longer have logical
significance.\14\ Therefore, the EPA proposes that if this
reclassification takes effect, the following Moderate area SIP
requirements would no longer be required: (1) an attainment
demonstration with respect to the Moderate attainment date, (2) a RACM
analysis with respect to the Moderate attainment date, and (3)
contingency measures for failure to attain by the Moderate attainment
date. Texas must submit these SIP elements for the Serious
classification according to the deadlines established elsewhere in this
proposal. Accordingly, the EPA is proposing to determine that the
October 2023 findings that EPA published with respect to SIP revisions
for these three identified elements for the Moderate classification are
now moot, and that the associated deadlines triggered by the October
2023 findings for imposition of sanctions or promulgation of a FIP no
longer apply with respect to these three identified elements.\15\
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\14\ Contingency measures for failure to meet RFP by the
Moderate attainment date would continue to be required after
voluntary reclassification from Moderate to Serious.
\15\ 88 FR 71757.
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Note, however, that there remain several Moderate area SIP
requirements that continue to be required after these areas are
reclassified to Serious. They are unaffected because their meaning is
not dependent upon the attainment date itself. These are: (1) a 15
percent rate-of-progress (ROP) plan (40 CFR 51.1310), (2) contingency
measures for failure to achieve RFP, including the 15 percent rate-of-
progress (ROP) requirement for Moderate areas (CAA sections 172(c)(9)
and 182(c)(9)),\16\ (3) a RACT demonstration (40 CFR 51.1312), (4) NNSR
rules (40 CFR 51.165), and (5) a Basic I/M program (CAA section
182(b)(4) and 40 CFR 51 subpart S). Reclassification does not change
the submission requirement or implementation deadlines for these SIP
elements that were due for the Moderate classification for the San
Antonio, DFW, and HGB areas. Changing the submission requirement or
implementation deadlines for these elements would delay the
implementation of these measures beyond what the CAA intended. While
the CAA does provide for later attainment dates for higher
classifications, it does not authorize altering requirements that came
due as a result of the lower classifications aside from the very
particular situation outlined for requirements that are directly
dependent on the attainment date. For example, the CAA requirement in
section 182(b)(2) to implement RACT for specified categories of sources
is implemented and assessed based on whether the RACT rules are
implementing what is economically and technologically feasible. In
other words, this analysis of whether controls comprise RACT is done
irrespective of the attainment deadline. There is nothing in the CAA to
suggest that reclassification as Serious, and the associated change in
an area's attainment date, should alter the preexisting requirement to
submit a SIP
[[Page 5148]]
implementing RACT level controls and the deadline to implement those
controls.\17\ This same logic applies to all the identified
requirements not specifically tied to the attainment date, and the
associated deadlines for imposition of sanctions and EPA's obligation
to promulgate a FIP triggered by the October 2023 findings would
continue to apply with respect to these elements.
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\16\ If a state demonstrates that ROP has been met for an area,
the EPA believes that the requirement for contingency measures for
that purpose could similarly be mooted.
\17\ EPA notes that reclassification does obligate the state to
conduct an additional RACT analysis for the new classification. This
does not relieve the obligation for the prior classification. A
state may be able to consider the results of its overdue Moderate
RACT analysis in preparing its Serious area RACT submittal.
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C. Required Plans, and Submission and Implementation Deadlines
1. Serious Area Plan Requirements
The SIP requirements that apply specifically to Serious areas are
listed under CAA section 182(c) and include: Enhanced monitoring (CAA
section 182(c)(1); Emissions inventory and emissions statement rule (40
CFR 51.1300(p) and 40 CFR 51.1315); RFP (40 CFR 51.1310); Attainment
demonstration and RACM (40 CFR 51.1308 and 40 CFR 51.1312(c)); RACT (40
CFR 51.1312); Nonattainment NSR (40 CFR 51.1314 and 40 CFR 51.165);
Enhanced I/M (CAA section 182(c)(3) and 40 CFR 51 Subpart S); Clean-
fuel vehicle programs (CAA section 182(c)(4); \18\ and Contingency
measures (CAA sections 172(c)(9) and 182(c)(9)). In addition, a
demonstration evaluating the need for a transportation control measure
program (CAA section 182(c)(5)) is also required. Note that the
analysis addressing RACT level controls for major sources should
include an evaluation of controls for sources emitting 50 tpy or more
that are currently reasonably available, consistent with the definition
of ``major source'' or ``major stationary source'' for areas classified
as Serious.\19\ The RACT analysis should also include an evaluation of
any newly-identified VOC sources covered by an EPA Control Techniques
Guideline, and an evaluation of controls for VOC and NO<INF>X</INF>
sources emitting 100 tpy or more that may have become reasonably
available since the January 1, 2023, Moderate area deadline for
adopting and implementing RACT.
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\18\ In June 2022, the EPA released new guidance that provides
several options for states to either continue to rely upon their
existing Clean Fuel Fleets Program, to add new components to these
programs, or to rely on recent EPA regulations to satisfy the Clean
Fuel Fleets requirement. This new guidance reaffirms and supplements
the 1998 guidance with new compliance options. This guidance is
posted at <a href="https://www.epa.gov/state-and-local-transportation/clean-fuel-fleets-program-guidance">https://www.epa.gov/state-and-local-transportation/clean-fuel-fleets-program-guidance</a>.
\19\ See CAA section 182(c).
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Consistent with the I/M regulations, for the existing I/M programs
in the DFW and HGB areas, the State would need to conduct and submit a
performance standard \20\ modeling (PSM) analysis \21\ as well as make
any necessary program revisions as part of the Serious area I/M SIP
submissions to ensure that I/M programs are operating at or above the
Enhanced I/M performance standard level for the 2015 ozone NAAQS.\22\
The State may determine through the PSM analysis that an existing SIP-
approved program would meet the Enhanced performance standard for
purposes of the 2015 ozone NAAQS without modification. In this case,
the State could submit an I/M SIP revision with the associated
performance modeling and a written statement certifying their
determination in lieu of submitting new revised regulations.\23\ With
the passage of time and changes in fleet mix, it is appropriate for the
State to confirm existing programs' compliance with the performance
standard.
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\20\ An I/M performance standard is a collection of program
design elements which defines a benchmark program to which a state's
proposed program is compared in terms of its potential to reduce
emissions of the ozone precursors, VOC, and NO<INF>X</INF>.
\21\ See Performance Standard Modeling for New and Existing
Vehicle Inspection and Maintenance (I/M) Programs Using the MOVES
Mobile Source Emissions Model (October 2022, EPA-420-B-22-034) at
<a href="https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P1015S5C.pdf">https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P1015S5C.pdf</a>.
\22\ 40 CFR 51.372(a)(2).
\23\ See Implementation of the 2015 National Ambient Air Quality
Standards for Ozone: Nonattainment Area Classifications and State
Implementation Plan Requirements, 83 FR 62998, 63001- 63002
(December 6, 2018). Performance standard modeling is also required
for Enhanced I/M programs in Serious and above ozone nonattainment
areas for the 2015 ozone NAAQS.
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The State included PSM for the existing (Enhanced) I/M program in
Appendix C of the SIP revisions, proposed by the State on May 31, 2023,
for the DFW and HGB attainment demonstrations, and included PSM as an
attachment to the I/M SIP revision, proposed by the State on May 31,
2023, for the San Antonio nonattainment area, to demonstrate that PSM
is met for Basic I/M in that area.\24\ The EPA will address these SIP
revisions in a separate future action after the State has finalized
these proposed SIP revisions and submitted them to the EPA for
consideration. However, following reclassification as Serious, as
outlined above for existing I/M programs, the State will need to make
any necessary revisions to the proposed San Antonio Basic I/M program
and submit a PSM analysis along with a written certification as part of
the Serious area SIP submissions to demonstrate that the San Antonio
area I/M program will be operating at or above the Enhanced I/M
performance standard level for the 2015 ozone NAAQS when the Enhanced
I/M program is implemented. The Enhanced I/M program requirements are
to be fully implemented as expeditiously as practicable but no later
than the implementation deadline determined by the final action
reclassifying these areas as discussed in Section III.C.4. of this
proposal.
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\24\ The DFW proposed SIP revision is identified as Project No.
2022-021-SIP-NR, the HGB proposed SIP revision is identified as
Project No. 2022-022-SIP-NR, and the proposed I/M SIP revision for
the San Antonio nonattainment area is identified as 2022-027-SIP-NR
The Texas proposed SIP revisions are posted at <a href="https://www.tceq.texas.gov/airquality/sip/Hottop.html">https://www.tceq.texas.gov/airquality/sip/Hottop.html</a>.
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In addition, CAA section 182(c)(5) requires that ozone
nonattainment areas classified as Serious submit a demonstration of
whether current aggregate vehicle mileage, aggregate vehicle emissions,
congestion levels, and other relevant parameters are consistent with
those used for an area's demonstration of attainment. If the
demonstration shows that these transportation parameters will result in
an exceedance of the projected emissions in the attainment
demonstration, the State would be required to develop and submit a SIP
revision within 18 months that includes transportation control measures
to reduce emissions to levels consistent with the attainment
demonstration.
2. Submission Deadline for the San Antonio, DFW, and HGB Serious Area
SIPs for the 2015 Ozone NAAQS
The SIP submission deadlines for nonattainment areas initially
classified as Serious for the 2015 ozone NAAQS have passed and thus,
the EPA is proposing new SIP submission deadlines for the reclassified
Texas areas.\25\ In proposing these new deadlines, EPA is considering
the statutory guidance provided in CAA section 182(i), which allows the
Administrator to adjust applicable deadlines other than attainment
dates for areas that are reclassified as a result
[[Page 5149]]
of failure to attain, ``to the extent such adjustment is necessary or
appropriate to assure consistency among the required submissions.''
EPA's proposed deadlines are also informed by the amount of time and
balance of considerations, including an area's attainment date, that
the CAA prescribes when new implementation plans are required to be
submitted. See, e.g., CAA section 110(k)(5) (allowing EPA to
``establish reasonable deadlines (not to exceed 18 months)'' after
notification that a SIP is inadequate); CAA section 179(d) (requiring
states to submit a new SIP revision demonstrating attainment within one
year of a finding that a nonattainment area has failed to attain by its
attainment date). EPA also considered the time necessary for the State
to adopt revisions to necessary attainment strategies, address other
SIP requirements, and complete the public notice process necessary to
adopt and submit timely SIP revisions. Given the Serious area
attainment year of 2026 and the Serious area attainment dates in 2027,
we are proposing and taking comment on a range of SIP submission
deadlines from 12 to 18 months from the effective date of the EPA's
final action reclassifying the San Antonio, DFW, and HGB areas as
Serious. Twelve months is consistent with submission deadlines set
forth in prior mandatory reclassifications for the DFW area, i.e., 12
months from the effective date of reclassification.\26\ This shorter
deadline would also provide for additional time for adopted control
measures to influence an area's air quality and 2024-2026 attainment DV
and aid in these areas' ability to attain by the Serious attainment
deadline. Given the anticipated timing of these area reclassifications,
an 18-month SIP submission deadline could also be reasonable, falling
before the beginning of the Serious area attainment year (January 1,
2026) and increasing the State's available time for assessing,
adopting, and implementing emission reduction measures such that these
areas can meet the ozone NAAQS expeditiously. Therefore, we are
proposing and taking comment on a range of deadlines, from 12 to 18
months from the effective date of reclassification, for submission of
the revised SIPs for the San Antonio, DFW, and HGB Serious
nonattainment areas. We request that comments on the deadline for
submission of the revised SIPs be accompanied by justification for the
commenter's position. We will review comments received during the
comment period and determine the appropriate SIP submission deadline in
our final action for these Serious area submission requirements.
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\25\ CAA section 182(i) specifically provides authority to EPA
to adjust applicable deadlines, other than attainment dates, for
areas that are reclassified as a result of failure to attain under
CAA section 182(b)(2), to the extent such adjustment is necessary or
appropriate to assure consistency among the required submissions.
The provision does not specifically reference areas that are
voluntarily reclassified under CAA section 181(b)(3); EPA is
therefore reasonably proposing to adjust deadlines for such areas
under its general rulemaking authority in CAA section 301(a),
consistent with CAA section 182(i).
\26\ See reclassification final actions for the DFW area at 75
FR 79302 (December 20, 2010) and 63 FR 8128 (February 18, 1998).
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3. Implementation Deadline for RACT
With respect to implementation deadlines, the EPA's implementing
regulations for the 2015 ozone NAAQS require that, for RACT required
pursuant to reclassification, the state shall provide for
implementation of such RACT as expeditiously as practicable, but no
later than the start of the attainment year ozone season associated
with the area's new attainment deadline, or January 1 of the third year
after the associated SIP revision submittal deadline, whichever is
earlier; or the deadline established by the Administrator in the final
action issuing the area reclassification (see 40 CFR
51.1312(a)(3)(ii)). The modeling and attainment demonstration
requirements for 2015 ozone NAAQS areas classified Moderate or higher
require that a state must provide for implementation of all control
measures needed for attainment no later than the beginning of the
attainment year ozone season, notwithstanding any alternative deadline
established per 40 CFR 51.1312 (see 40 CFR 51.1308(d)).
In the case of the potential reclassified Serious areas addressed
in this proposal, the start of the ozone season varies among the
areas--January for the HGB area and March for the DFW and San Antonio
areas (see 40 CFR part 58, appendix D, section 4.1, Table D-3).\27\ Per
40 CFR 51.1312(a)(3)(ii), and consistent with CAA section 182(i)'s
provision that EPA may adjust deadlines for mandatorily reclassified
areas as necessary and appropriate ``to assure consistency among the
required submissions'' the EPA is proposing a consistent single RACT
implementation deadline for all the areas addressed in this proposal,
that RACT be implemented as expeditiously as practicable but no later
than the beginning of the applicable attainment year, i.e., January 1,
2026. This proposed deadline would require implementation of RACT as
early as possible in the attainment year to influence an area's air
quality and 2024-2026 attainment DV.
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\27\ Air Quality Control Region (AQCR) 215 includes the DFW
area, AQCR 216 includes the HGB area, and AQCR 217 includes the San
Antonio area. See also 62 FR 30270 (June 3, 1997) and 40 CFR subpart
B.
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The EPA requests comment on its proposed deadline that RACT be
implemented as expeditiously as practicable but no later than the
beginning of the applicable attainment year, i.e., January 1, 2026.
4. Implementation Deadline for Enhanced I/M Programs
With respect to the implementation deadline for Enhanced I/M
programs, if the State intends to rely upon emission reductions from
its newly required Enhanced I/M programs for the 2015 ozone NAAQS, the
State would need to have such Enhanced programs fully implemented as
expeditiously as practicable but no later than the beginning of the
applicable attainment year, i.e., January 1, 2026. However, given the
unique nature of I/M programs, there are many challenges, tasks, and
milestones that must be met in establishing and implementing an
Enhanced I/M program. The EPA realizes that implementing a new or
revised I/M program on an accelerated timeline may be difficult to
achieve in practice so, if the State does not intend to rely upon
emission reductions from its Enhanced I/M programs in SIPs
demonstrating attainment or RFP, we are proposing to allow any new or
revised Enhanced I/M programs to be fully implemented no later than 4
years after the effective date of reclassification, explained as
follows.
Under CAA section 182(i), reclassified areas are generally required
to meet the requirements associated with their new classification
``according to the schedules prescribed in connection with such
requirements.'' The I/M regulations provide such a prescribed schedule
in stating that newly required I/M programs are to be implemented as
expeditiously as practicable. The I/M regulations also allow areas
newly required to implement Enhanced I/M up to ``4 years after the
effective date of designation and classification'' to fully implement
the I/M program.\28\ With the effective date of this action expected to
be in 2024, the implementation deadline for Enhanced I/M programs for
the 2015 ozone NAAQS under the proposal would be in 2028. This proposed
implementation deadline is beyond the Serious area attainment date of
August
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\28\ The I/M program implementation deadline at 40 CFR 51.373(d)
states: ``For areas newly required to implement Enhanced I/M as a
result of designation under the 8-hour ozone standard, the required
program shall be fully implemented no later than 4 years after the
effective date of designation and classification under the 8-hour
ozone standard.'' A start date for I/M programs of 4 years after the
effective date of designation and classification under the 8-hour
ozone standard is also cited in the Enhanced I/M performance
standard at 40 CFR 51.351(c) and (i)(2).
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[[Page 5150]]
3, 2027 (or September 24, 2027, for the San Antonio area). However, by
proposing such a deadline for newly reclassified Serious areas required
to implement an Enhanced I/M program (but not needing I/M emission
reductions for attainment or RFP SIP purposes), the EPA maintains that
these newly required Enhanced I/M programs could reasonably be
implemented after the attainment year ozone season (i.e., after 2026)
relevant to the Serious area attainment date if reductions from these
Enhanced I/M programs are not necessary for an area to achieve timely
attainment of the 2015 ozone NAAQS. The EPA has long taken the position
that the statutory requirement for states to implement I/M in ozone
nonattainment areas classified Moderate and higher generally exists
independently from the attainment planning requirements for such
areas.\29\ Considering the numerous challenges and milestones necessary
in implementing an Enhanced I/M program, this proposed implementation
deadline of up to 4 years is reasonable.
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\29\ See John S. Seitz, Memo, ``Reasonable Further Progress,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' May 10, 1995, at 4.
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This proposed implementation deadline for Enhanced I/M
implementation does not extend the deadline for implementation of the
San Antonio area's Basic I/M program (November 7, 2026), which is still
required from the area's prior classification as Moderate.\30\
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\30\ See 87 FR 60897, October 7, 2022, at 60900.
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The EPA requests comment on requiring that any new or revised
Enhanced I/M programs be fully implemented as expeditiously as
practicable but no later than four years after the effective date of
reclassification. If the State intends to rely upon emission reductions
from its newly required Enhanced I/M programs for the 2015 ozone NAAQS,
the State would need to have such Enhanced programs fully implemented
as expeditiously as practicable but no later than the beginning of the
applicable attainment year, i.e., January 1, 2026.
5. Reporting Deadline for the Transportation Control Demonstration
In Serious ozone nonattainment areas, CAA section 182(c)(5)
requires the state to submit, six years after November 15, 1990, and
every three years thereafter, a demonstration as to whether current
aggregate vehicle mileage, aggregate vehicle emissions, congestion
levels, and other relevant parameters are consistent with those used
for the area's demonstration of attainment. Six years after November
15, 1990, was two years after the statutory deadline established to
submit attainment demonstrations. To be consistent with this CAA
schedule, we are proposing that the first transportation control
demonstration be required to be submitted two years after the
attainment demonstrations for these areas are due, and every three
years thereafter.
V. Proposed Action
Pursuant to CAA section 181(b)(3), we are proposing to grant the
Texas Governor's request to reclassify the San Antonio, DFW, and HGB
nonattainment areas from Moderate to Serious for the 2015 ozone NAAQS.
The EPA is also proposing to set a deadline for the submission of
revised SIPs addressing the Serious area requirements for the San
Antonio, DFW, and HGB ozone nonattainment areas. We are proposing to
establish a deadline within the range of 12 to 18 months from the
effective date of the final action reclassifying the San Antonio, DFW,
and HGB areas as Serious for the TCEQ to submit SIP revisions
addressing the CAA Serious ozone nonattainment area requirements. We
are also proposing a deadline for implementation of new RACT controls
as expeditiously as practicable but no later than January 1, 2026.
Also, if the State does not intend to rely upon emission reductions
from its Enhanced I/M programs in SIPs demonstrating attainment or RFP,
we are proposing a deadline for any new or revised Enhanced I/M
programs to be fully implemented as expeditiously as practicable but no
later than four years after the effective date of the final action
reclassifying these areas as Serious for the 2015 ozone NAAQS. We are
also proposing a deadline for the first transportation control
demonstration, as required by CAA section 182(c)(5), to be submitted
two years after the attainment demonstration due date, and every three
years thereafter.
VI. Environmental Justice Considerations
For this proposed action, the EPA conducted screening analyses
using the EPA's Environmental Justice (EJ) screening tool (EJScreen
tool, version 2.2).\31\ The EPA reviewed environmental and demographic
data of the populations living within the San Antonio, DFW, and HGB
areas. The EPA then compared these data to the national average for
each of the environmental and demographic groups. The results of this
analysis are being provided for informational and transparency
purposes.
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\31\ See <a href="https://www.epa.gov/ejscreen">https://www.epa.gov/ejscreen</a>.
---------------------------------------------------------------------------
Review of the environmental analyses indicate that Collin, Dallas,
Denton, and Tarrant counties in the DFW area and all six counties in
the HGB area are above the 80th percentile for ozone. Review of the
demographic analyses indicate that Chambers, Galveston, and Harris
counties in the HGB area are above the 80th percentile for limited
English-speaking households. A detailed description of the EJ
considerations and the EJScreen analysis reports are available in the
docket for this rulemaking.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, Executive
Order 13563: Improving Regulation and Regulatory Review, and Executive
Order 14094: Modernizing Regulatory Review
This proposed action is not a significant regulatory action as
defined in Executive Order 12866, as amended by Executive Order 14094,
and was therefore not subject to a requirement for Executive Order
12866 review. Because the statutory requirements are clearly defined
with respect to the differently classified areas, and because those
requirements are automatically triggered by reclassification, the
timing of the submittal of the Serious area requirements does not
impose a materially adverse impact under Executive Order 12866.
B. Paperwork Reduction Act (PRA)
This proposed action does not impose an information collection
burden under the provisions of the PRA.
C. Regulatory Flexibility Act (RFA)
I certify that this proposed rule will not have a significant
economic impact on a substantial number of small entities under the
RFA. This proposed action will not impose any requirements on small
entities, because the EPA is seeking comment only on the timing of
submittal requirements.
D. Unfunded Mandates Reform Act of 1995 (UMRA)
This proposed action does not contain an unfunded mandate of $100
million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The proposed action
imposes no new enforceable duty on any State, local or Tribal
governments or the private sector.
E. Executive Order 13132: Federalism
This proposed action does not have federalism implications. It will
not have
[[Page 5151]]
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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action does not have Tribal implications as specified
in Executive Order 13175. There are no Indian reservation lands or
other areas where the EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction within the San Antonio, DFW, or HGB ozone
nonattainment areas. Therefore, this proposed action 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.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks that the EPA has
reason to believe may disproportionately affect children, per the
definition of ``covered regulatory action'' in section 2-202 of the
Executive order. This proposed action is not subject to Executive Order
13045 because the EPA is seeking comment only on the timing of
submittal requirements and as such, does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This proposed action is not subject to Executive Order 13211
because it is not a significant regulatory action under Executive Order
12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This proposed action does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and Low-
Income Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 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.
The 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.'' The 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.''
This proposed action would reclassify the San Antonio, DFW, and HGB
nonattainment areas from Moderate to Serious for the 2015 ozone NAAQS,
set deadlines for the submission of revised SIPs addressing the Serious
area requirements for these three ozone nonattainment areas, and set
deadlines for implementation of controls required for these three
nonattainment areas. This proposal does not revise measures in the
current SIP. As such, at a minimum, this action would not worsen any
existing air quality and is expected to ensure the areas are meeting
requirements to attain and/or maintain air quality standards. Further,
there is no information in the record indicating this action is
expected to have disproportionately high or adverse human health or
environmental effects on a particular group of people. The EPA
performed an environmental justice analysis, as described earlier in
this action under ``Environmental Justice Considerations.'' The
analysis was done for the purpose of providing additional context and
information about this proposal to the public, not as a basis of the
action.
K. Judicial Review
Section 307(b)(1) of the CAA governs judicial review of final
actions by EPA. This section provides, in part, that petitions for
review must be filed in the D.C. Circuit: (i) when the agency action
consists of ``nationally applicable regulations promulgated, or final
actions taken, by the Administrator,'' or (ii) when such action is
locally or regionally applicable, if ``such action is based on a
determination of nationwide scope or effect and if in taking such
action the Administrator finds and publishes that such action is based
on such a determination.'' For locally or regionally applicable final
actions, the CAA reserves to EPA complete discretion to decide whether
to invoke the exception in (ii).
This proposal, if finalized, would be locally applicable because it
would apply only to three nonattainment areas located in the State of
Texas. However, if the Administrator finalizes this proposed
rulemaking, the Administrator intends to exercise the complete
discretion afforded to him under the CAA to make and publish a finding
that the final action is based on a determination of ``nationwide scope
or effect'' within the meaning of CAA section 307(b)(1). This proposed
action, if finalized, would be based on EPA's determination as a matter
of law that upon reclassification of a nonattainment areas for the 2015
ozone NAAQS, certain nonattainment area planning requirements that are
tied to the lower, superseded classification's attainment date for
these NAAQS (i.e., for this action, the Moderate area attainment
demonstration, Moderate area RACM demonstration, and contingency
measures for failure to attain) are no longer required. This is a
determination of nationwide scope or effect because it reflects EPA's
nationwide approach to implementing the CAA's mandates concerning the
consequences, in all states, of reclassification from Moderate to
Serious under subpart 2 of title I, part D of the CAA. For these
reasons, the Administrator intends, if this proposed action is
finalized, to exercise the complete discretion afforded to him under
the CAA to make and publish a finding that this action is based on a
determination of nationwide scope or effect for purposes of CAA section
307(b)(1).
List of Subjects in 40 CFR Part 81
Environmental protection, Administrative practice and procedure,
Air pollution control, Designations and classifications,
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and
recordkeeping requirements, and Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 19, 2024.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2024-01525 Filed 1-25-24; 8:45 am]
BILLING CODE 6560-50-P
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