Rule2024-13193
Clean Air Act Reclassification of the San Antonio, Dallas-Fort Worth, and Houston-Galveston-Brazoria Ozone Nonattainment Areas; TX
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 20, 2024
Effective
July 22, 2024
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA), the Environmental Protection Agency (EPA) is granting a request from the Governor of the State of Texas to voluntarily 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 setting the date for the Texas Commission on Environmental Quality (TCEQ or State) to submit revised State Implementation Plans (SIPs) addressing the Serious ozone nonattainment area requirements and for the first transportation control demonstrations for these areas. The EPA is also setting the deadlines for implementation of new rules addressing Reasonably Available Control Technology (RACT) and for any new or revised Enhanced vehicle Inspection and Maintenance (I/M) programs. Finally, the TCEQ is no longer required to submit SIP revisions addressing the following requirements related to the prior classification level for these three ozone nonattainment areas: 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.
Full Text
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<title>Federal Register, Volume 89 Issue 119 (Thursday, June 20, 2024)</title>
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[Federal Register Volume 89, Number 119 (Thursday, June 20, 2024)]
[Rules and Regulations]
[Pages 51829-51843]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13193]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R06-OAR-2023-0536; FRL-11640-02-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: Final rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA), the Environmental
Protection Agency (EPA) is granting a request from the Governor of the
State of Texas to voluntarily 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 setting the date for the
Texas Commission on Environmental Quality (TCEQ or State) to submit
revised State Implementation Plans (SIPs) addressing the Serious ozone
nonattainment area requirements and for the first transportation
control demonstrations for these areas. The EPA is also setting the
deadlines for implementation of new rules addressing Reasonably
Available Control Technology (RACT) and for any new or revised Enhanced
vehicle Inspection and Maintenance (I/M) programs. Finally, the TCEQ is
no longer required to submit SIP revisions addressing the following
requirements related to the prior classification level for these three
ozone nonattainment areas: 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.
DATES: This rule is effective on July 22, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID EPA-R06-OAR-2023-0536. 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#0d7d6c646a68236e6c7f7f64684d687d6c236a627b"><span class="__cf_email__" data-cfemail="681809010f0d460b091a1a010d280d1809460f071e">[email protected]</span></a>.
Please call or email the contact listed here 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
January 26, 2024, proposal (89 FR 5145).\1\ In that document, we
proposed 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. We also proposed a
deadline for the TCEQ to submit revisions to the SIP addressing the
Serious area requirements for these areas. The SIP requirements that
apply specifically to Serious areas include: Enhanced monitoring (CAA
section 182(c)(1)); Emissions inventory and emissions statement rule
(40 CFR 51.1300(p) and 40 CFR 51.1315); Reasonable Further Progress
(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
New Source Review (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)); \2\ 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. We also proposed and took comment
on a range of deadlines for the TCEQ to submit revisions to the SIP
addressing the Serious area requirements, 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. We also proposed a deadline for
implementation of new RACT rules as expeditiously as practicable but no
later than January 1, 2026, and proposed a deadline for any new or
revised Enhanced vehicle I/M programs (for areas that do not need I/M
emission reductions for attainment or RFP SIP purposes) 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. We also proposed a deadline for the first
transportation control demonstration to be submitted two years after
the attainment demonstration due date.
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\1\ Henceforth we refer to this proposal as the ``January 2024
proposal.'' The January 2024 proposal and related documents (e.g.,
the Texas Governor's request and our Environmental Justice
Considerations) are provided in the docket for this action.
\2\ 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>.
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The January 2024 proposal also outlined EPA's interpretation that
following voluntary reclassification, a state is no longer required to
submit certain SIP revisions addressing the following requirements
related to the prior classification level for an ozone nonattainment
area because they are tied to the prior (i.e., Moderate) attainment
date: (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, with this final
voluntary reclassification of the San Antonio, DFW, and HGB areas as
Serious for the 2015 ozone NAAQS, Texas is no longer 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 is moot as to these specific SIP elements for Texas.\3\ However,
as described in our January 2024 proposal, there remain several
Moderate area SIP requirements that continue to be required after these
areas are voluntarily reclassified as Serious because they are not
dependent upon the Moderate attainment date itself.\4\
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\3\ 88 FR 71757 (October 18, 2023). Henceforth referred to as
the ``October 2023 findings.''
\4\ See 89 FR 5145, 5147.
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[[Page 51830]]
The comment period for our January 2024 proposal closed on February
26, 2024. We received relevant comments during the comment period from
eight sources: CPS Energy; Earthjustice--on behalf of Air Alliance
Houston, Texas Environmental Justice Advocacy Services, and Sierra
Club; Office of the Harris County Attorney; Texas Chemistry Council;
TCEQ; Texas Oil & Gas Association; Texas Pipeline Association; and a
member of the public. These comments are available for review in the
docket for this rulemaking. Our responses to the comments are provided
in Section II of this rulemaking.
II. Response to Comments
A. Reclassification of the Areas as Serious
Comment: Commenters state that the EPA has no discretion to deny
the reclassification request and the EPA should have issued a direct
final approval granting the reclassification request.
Response: The EPA is granting the request to reclassify the San
Antonio, DFW, and HGB nonattainment areas from Moderate to Serious for
the 2015 ozone NAAQS, but we disagree that a direct final action is
appropriate in this circumstance for several reasons. First, our
January 2024 proposal proposed to determine that the EPA's October 2023
findings with respect to the Texas SIP revisions for the demonstration
of attainment by the prior attainment date, the 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
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 Federal Implementation Plan (FIP) no
longer apply with respect to these three elements. Second, our January
2024 proposal requested comments on deadlines proposed for SIP
submission and for implementation of certain CAA requirements, which we
are required to establish pursuant to CAA section 182(i). Thus, the
proposal provides the public an opportunity to review and comment upon
the proposed actions and deadlines. Finally, we disagree that a direct
final action is a required vehicle to grant the voluntary
reclassification request. CAA section 181(b)(3) provides that the EPA
``shall publish a notice in the Federal Register of any such request
and of action by the Administrator granting the request'' but does not
dictate the form of such Federal Register action. Our action here is
consistent with section 181(b)(3) and with a prior action granting the
Texas Governor's request to reclassify the HGB area from Moderate to
Severe for the 1997 ozone NAAQS, where we did not issue a direct final
action but instead, used the same notice-and-comment format as we have
here.\5\
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\5\ 73 FR 56983 (October 1, 2008).
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Comment: The Office of the Harris County Attorney asks that EPA
provide guidance on how it interprets CAA section 181(b)(3) in the
event a governor requests a reclassification after a missed SIP
deadline. The commenter contends that the Governor's reclassification
request and the reasoning behind it is contrary to the intent of the
CAA, which is not to protect industry and economy but the people living
and breathing in Texas. The commenter states that the January 2024
proposal, if finalized, would give Texas several years to complete
certain SIP requirements, and EPA has found some requirements
pertaining to the prior attainment date to now be moot. The commenter
states that this sets a precedent which may further delay ozone
improvements, in contravention to the intent of the CAA. The commenter
suggests clarifications on which requirements would be moot, deadlines,
and other issues addressed in the January 2024 proposal would be
helpful for both stakeholders and states when contemplating the
consequences of such an action.
Response: CAA section 181(b)(3) does not require states to provide
a reason for their request for a voluntary reclassification, nor does
it condition EPA's action on the request on such reasoning. Consistent
with 40 CFR 51.1303(b), ``[a] state may request, and the Administrator
must approve, a higher classification for an area for any reason in
accordance with CAA section 181(b)(3).'' \6\ Reclassification is a
legitimate method provided by the CAA to address the circumstances of
the San Antonio, DFW, and HGB areas--as illustrated by the TCEQ's
proposed Moderate attainment demonstration SIP revisions for these
areas that indicated, based on the TCEQ's modeling and available data,
these three areas were not expected to attain the 2015 ozone NAAQS by
their 2024 attainment dates.\7\
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\6\ Emphasis added.
\7\ The proposed SIP revisions are posted on the TCEQ website at
<a href="https://www.tceq.texas.gov/airquality/sip">https://www.tceq.texas.gov/airquality/sip</a>. Once there, click on the
map for the DFW, HGB, and/or the San Antonio area, then scroll down
and click on ``Latest Ozone Planning Activities'' and then scroll
down to the ``Proposed Moderate AD SIP Revision for the 2015 Ozone
NAAQS.''
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We disagree that approving the request to reclassify the area from
Moderate to Serious would delay implementation of the CAA SIP
requirements in a manner inconsistent with the CAA. The commenter did
not describe which ozone improvements would be delayed. Our January
2024 proposal did not propose delays for the Moderate or Serious area
SIP submissions. As mentioned in our January 2024 proposal, upon
reclassification, stationary air pollution sources in the San Antonio,
DFW, and HGB ozone nonattainment areas will be subject to Serious ozone
nonattainment area 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 oxides of nitrogen (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,\8\ VOC and NO<INF>X</INF> emission
increases from the proposed construction of 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--and will continue to be implemented--in
those areas.\9\ Our January 2024 proposal listed the remaining Moderate
area SIP requirements that continue to be required after these areas
are reclassified as Serious, which 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 ROP requirement for
Moderate areas (CAA sections 172(c)(9) and 182(c)(9)), (3) a RACT
demonstration (40 CFR 51.1312), (4) Nonattainment New Source Review
(NNSR) rules (40 CFR 51.165), and (5) a Basic I/M program (CAA section
182(b)(4) and 40 CFR 51 subpart S). Because these SIP requirements are
not dependent upon the Moderate attainment date itself, voluntary
reclassification does not
[[Page 51831]]
change the submission requirement or implementation deadlines for these
SIP elements that were due January 1, 2023, for the Moderate
classification for the San Antonio, DFW, and HGB areas. Reclassifying
the areas as Serious in response to a reclassification request does not
result in an attainment date that is any later than the attainment date
that would have applied had the area been initially classified as
Serious, and the Serious requirements that depend on that date are all
still applicable.
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\8\ 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).
\9\ 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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We disagree that approving the request to reclassify the area from
Moderate to Serious would set a precedent that may further delay ozone
improvements, as suggested by the commenter. We note that our approval
of the prior Texas Governor's request to reclassify the HGB area from
Moderate to Severe for the 1997 ozone NAAQS provided that once
reclassified, the area would no longer be required to submit an
attainment demonstration for the prior classification.\10\ In our
January 2024 proposal, we explained that once reclassified as Serious,
these three areas have a new statutory attainment deadline, so certain
SIP elements (in this case, specifically, the Moderate area attainment
demonstration and the associated RACM and contingency measures for
failure to attain) that are dependent on the Moderate attainment
deadline are no longer applicable or required for the lower, superseded
(in this case, Moderate) classification. None of the remaining SIP
requirements for the Moderate classification and none of the SIP
requirements for the Serious classification were proposed as moot or
delayed in our January 2024 proposal. We also note that for the prior
voluntary reclassification of the HGB area from Moderate to Severe for
the 1997 ozone NAAQS, the HGB area was able to attain the 1997 ozone
NAAQS by the end of 2014, significantly ahead of the area's June 15,
2019, attainment date.\11\
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\10\ 73 FR 56983, 56987.
\11\ See 73 FR 56983 and 80 FR 81466 (December 30, 2015).
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We elaborate on the Serious SIP submission and implementation
deadlines in our responses to the comments that follow.
B. Status of Certain Requirements of Previous Classification
Comment: Commenters agree with EPA's determination that the
attainment demonstration, RACM, and contingency measure elements for
failure to attain for the Moderate level classification would no longer
be due upon reclassification as Serious and that EPA's October 2023
findings should be mooted for these elements.
Response: The EPA appreciates these comments.
Comment: The commenter states that the EPA repeatedly reassured the
TCEQ that voluntary reclassification would provide an extended
timeframe to meet the CAA deadlines. The commenter states that the
January 2024 proposal is inconsistent with those representations as the
January 2024 proposal continues to hold Texas to the Moderate
nonattainment area deadlines.
Response: We disagree that a voluntary reclassification provides
the EPA with authority to extend existing deadlines associated with a
prior nonattainment classification. The Moderate nonattainment SIP
submission deadlines were established when the areas were reclassified
from Marginal to Moderate and the TCEQ did not challenge the deadlines
in that final action.\12\ We note that the period of time between the
effective date of reclassification and the area's attainment date could
be greater for an area requesting a voluntary reclassification, since
the effective date of reclassification would presumably occur earlier
than for an area mandatorily reclassified following a Finding of
Failure to Attain.\13\ Thus, reclassification can have the practical
effect of providing more time to develop and implement plans to meet an
area's attainment date.
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\12\ 87 FR 60897 (October 7, 2022).
\13\ 73 FR 56983.
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Our January 2024 proposal proposes to moot only the Moderate area
attainment demonstration and associated RACM demonstration and
contingency measures specifically tied to the Moderate attainment date.
The remaining Moderate nonattainment SIP elements continue to be
required and their associated deadlines are not otherwise altered.
Comment: Commenters state that the CAA is explicit that a state has
authority to request voluntary reclassification, and therefore to moot
all elements required under the prior classification. Commenters state
that voluntary reclassification allows the state to delay elements
required under the prior classification, because the purpose of the
reclassification is to permit states to develop and implement the most
effective collection of measures associated with the required elements
to attain the NAAQS. Commenters state that CAA section 181(b)(3)
affects the CAA's other provisions that are key to reclassification.
Commenters state that when a state exercises its authority under CAA
section 181(b)(3), the voluntary reclassification works on the CAA's
other components and abrogates the need for submittals associated with
the lower classification.
Response: The EPA disagrees. Commenters assert that voluntary
reclassification to a higher classification exempts a state from
needing to make a submittal for any SIP elements addressing the lower
classification, but this assertion is inconsistent with the plain
language of the statute. Specifically, CAA section 182(c) states that
``each State in which all or part of a Serious Area is located shall,
with respect to the Serious Area . . . make the submissions described
under subsection (b) of this section (relating to Moderate Areas) and
shall also submit the revisions to the applicable implementation plan
(including the plan items) described under this subsection.'' Thus, the
CAA clearly requires that Serious areas meet Moderate area requirements
in addition to Serious area requirements (see CAA section 182(c)).
These Moderate area requirements apply to areas initially classified as
Serious as well as areas reclassified as Serious, whether their
reclassification as Serious is mandatory as a result of failure to
attain or is voluntary in response to a reclassification request. The
CAA does not otherwise provide for delaying Moderate area requirement
deadlines beyond their prescribed timeframes, regardless of how the
area came to become classified as Serious. What the voluntary
reclassification does provide is additional lead time before the
attainment date, as compared to a mandatory reclassification, for the
state to adopt and implement such measures as necessary to attain while
recognizing that the CAA requires that reasonable further progress as
required for Moderate areas must still be achieved.
Our approach here is consistent with past actions to grant
voluntary reclassifications. When Texas previously requested a
voluntary reclassification for the HGB area from Moderate to Severe
under the 1997 ozone NAAQS, we stated that, ``Texas has a continuing
responsibility for certain elements of the Moderate area requirements.
EPA has stated that reclassification does not provide a basis for
extending submission deadlines for SIP elements unrelated to the
attainment demonstration that were due for the area's Moderate
classification.'' \14\ With the exception of the Moderate area
attainment demonstration and the associated
[[Page 51832]]
RACM demonstration and contingency measures for failure to attain by
the Moderate attainment date, the TCEQ has not been relieved of its
obligation to comply with SIP submission deadlines for the Moderate
area requirements.
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\14\ 73 FR 56983, 56991.
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Comment: Commenters disagree with EPA's assertion that RFP
requirements are not tied to the attainment date and therefore cannot
be mooted for the Moderate classification upon reclassification as
Serious. Commenters state that EPA's assertion that RFP requirements
are not tied to the attainment date runs counter to plain language in
CAA section 182(b)(1)(A), which states: ``Such plan shall provide for
such specific annual reductions in emissions of volatile organic
compounds [VOC] and oxides of nitrogen [NO<INF>X</INF>] as necessary to
attain the national primary ambient air quality standard for ozone by
the attainment date applicable under this chapter'' [emphasis added by
commenters]; as well as CAA section 182(c)(2)(B), which states: ``A
demonstration that the plan, as revised, will result in VOC emissions
reductions from the baseline emissions . . . until the attainment
date'' [emphasis added by commenters]. Commenters state that while an
RFP SIP revision is not designed to demonstrate attainment, the timing
of the emissions reduction targets for the Moderate RFP demonstration
are based on the attainment deadline for that Moderate classification,
and the Moderate RFP contingency measures would be required if an area
fails to meet those RFP targets that are based on the Moderate
attainment deadline. Commenters state that EPA's argument for
superseding the attainment demonstration and RACM requirements is that
``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.''
Commenters state that this interpretation should also apply to RFP as a
new demonstration would be required with targets based on the Serious
classification attainment date. Commenters add that the targets based
on the Moderate attainment date would also be demonstrated within the
Serious classification RFP SIP revision using the most recent emissions
development methods (e.g., MOVES4); therefore, eliminating the need for
the Moderate classification RFP submittal.
Response: Commenters' assertions that RFP is tied to the attainment
date as they suggest is inconsistent with the RFP requirements
established in the implementing regulations for the 2015 ozone NAAQS
which are based on a long-held EPA interpretation of RFP for ozone
nonattainment areas. As commenters note, Moderate and higher 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 defines
RFP for ozone nonattainment areas by specifying the incremental amount
of emissions reduction required by set dates for those areas.\15\ 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. The 15 percent reduction is ``the base
program that all moderate and above areas must meet. This base program
is necessary to ensure actual progress toward attainment in the face of
uncertainties inherent with SIP planning.'' \16\
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\15\ 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).
\16\ 57 FR 13498, 13507 (April 16, 1992).
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For Serious or higher ozone nonattainment areas, the 15 percent
requirement still applies, and section 182(c)(2)(B) further requires
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.\17\
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\17\ See 57 FR 13498, at 13510 (for Moderate areas) and at 13518
(for Serious areas).
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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),\18\ the EPA adapted the RFP requirements of
CAA sections 172(c)(2) and 182(b)(1) 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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\18\ 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
SIP Requirements Rule (SRR).\19\ 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.\20\ 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.'' \21\
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, EPA has
been even more explicit in our SRR for the
[[Page 51833]]
2015 ozone NAAQS: \22\ ``Reasonable further progress (RFP) means the
emissions reductions required under CAA sections 172(c)(2),
182(c)(2)(B), 182(c)(2)(C), and 40 CFR 51.1310. The EPA 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> \23\
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\19\ 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.
\20\ 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).
\21\ See 40 CFR 51.1100(t) (emphasis added).
\22\ See 83 FR 62998 (December 6, 2018).
\23\ See 40 CFR 51.1300(l).
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In the SRR for the 2015 Ozone NAAQS, 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 2015 ozone NAAQS, the requirement to demonstrate RFP is
independent of the requirement to demonstrate attainment by the
attainment date. RFP for the 2015 ozone NAAQS represents the minimum
progress that is required under the CAA, and our regulations, and does
not necessarily need to provide for the reductions necessary to achieve
attainment of the ozone NAAQS by the attainment date, which could vary
largely from one nonattainment area to another. For all of these
reasons, EPA disagrees with commenter's claim that RFP should be
treated the same as the Moderate area attainment demonstration, RACM,
and contingency measures for failure to attain. EPA's explanation for
why those three particular SIP elements are no longer required
following a voluntary reclassification does not apply to the Moderate
area RFP SIP element. Unlike the other three SIP elements, RFP is not
``tied to the applicable attainment deadline'' as explained above.
Moreover, the SRR for the 2015 ozone NAAQS lists RFP and ROP as
distinct provisions for implementation. See 40 CFR 51.1300(l),
51.1300(m), 51.1310(a)(2)(i) and 51.1310(a)(4)(i). These provisions
clearly demonstrate the necessity for RFP reductions during the first 6
years of the plan, regardless of the area's initial classification, or
whether it was Moderate before reclassifying as Serious, whether
voluntarily, or mandatorily. EPA therefore disagrees with the
commenter's implicit suggestion that the Moderate area RFP SIP
submittal should be delayed until submitted within the Serious area RFP
SIP submittal, as that would further delay submission of the Moderate
RFP plans, which are addressed in our October 2023 findings. The
Moderate RFP SIP submittal was due to EPA on January 1, 2023, and the
State will also be required to provide an RFP SIP submittal for the
Serious classification by January 1, 2026. Considering the reasoning
above explaining that the State is still required to provide an RFP
demonstration for the Moderate classification, and the undisputed fact
that the area is required to demonstrate RFP for this time period, the
EPA is not convinced by the commenter that further delay of the RFP
demonstration is warranted.
Comment: Commenters state that the EPA's proposal to require Texas
to continue to meet Moderate RFP and contingency measure obligations
does not align with EPA's rationale in its Clean Data Policy (40 CFR
51.1318), which provides that elements related to the attainment date,
including RFP and contingency measure obligations, are eligible for
suspension if the area is meeting the NAAQS. Commenters state that the
EPA has not identified a rationale for treating the nature of these
elements differently in the context of voluntary reclassification.
Response: Commenters misunderstand the purpose of the Clean Data
Policy, which states, ``[u]pon a determination by the EPA that an area
designated nonattainment for a specific ozone NAAQS has attained that
NAAQS, the requirements for such area to submit attainment
demonstrations and associated RACM, RFP plans, contingency measures for
failure to attain or make reasonable progress, and other planning SIPs
related to attainment of the ozone NAAQS for which the determination
has been made, shall be suspended until such time as the area is
redesignated to attainment for that NAAQS, at which time the
requirements no longer apply; or the EPA determines that the area has
violated that NAAQS, at which time the area is again required to submit
such plans.'' (40 CFR 51.1318). The rationale for treatment of RFP in
the Clean Data Policy is different from the rationale used here for
reclassification. While the Clean Data Policy is reasonably based on
the fact that an area that is attaining the NAAQS need not make further
progress toward attainment in the form of RFP reductions, it does not
follow that an area that is not attaining the NAAQS would be relieved
of the need to make CAA-mandated progress toward attainment as a result
of it being reclassified and given a later attainment date.
The DFW, HGB, and San Antonio areas currently are not meeting the
2015 ozone NAAQS, and thus the Clean Data Policy does not apply here.
Moreover, as areas not meeting the standard, these areas must continue
achieving emission reduction progress as required by the CAA and EPA's
regulations.
Comment: A commenter disagrees that RACT requirements are not tied
to the attainment date and therefore cannot be mooted for the Moderate
classification upon reclassification as Serious. Commenters cite to CAA
section 182(b)(2)(A) that states must consider each category of VOC
sources in the area covered by a control techniques guideline (CTG)
document issued by the Administrator between November 15, 1990, and the
date of attainment, and thus the statutory connection of the RACT
review to the attainment date is clear. Commenters state that the EPA
clearly bases RACT requirements on the attainment deadline for an
area's classification as evidenced by this action in which EPA is
proposing RACT implementation deadlines based on the timing required to
influence attainment of the standard by the attainment date. Commenters
state that the RACT connection to the attainment date is also evident
through the connection with the classification level itself, as the
RACT analysis is grounded in the review of the applicable major
stationary source threshold. Commenters state that the reclassification
as Serious would result in more stringent application of RACT
requirements to the nonattainment areas under a major source threshold
of 50 tpy, which would capture major sources under the 100 tpy Moderate
classification threshold, thus eliminating the need for a submittal to
address Moderate classification RACT.
Response: The EPA disagrees. For reclassified areas, the RACT
requirements at 40 CFR 51.1312(a)(2)(ii) and (3)(ii) obligate a state
to conduct a new, individual RACT analysis for the new classification
and implement any identified measures as necessary. Reclassification
does not relieve the RACT obligation for the prior classification. As
stated in our January 2024 proposal, 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 and is
not based on reductions needed to attain by the attainment deadline (89
FR at 5147).
We disagree that CAA section 182(b)(2)(A) provides a statutory
connection of RACT to the attainment date. Section 182(b)(2)(A) states
that RACT requirements apply to each category of sources covered by a
CTG document issued by the Administrator between November 15, 1990,
``and the date of attainment.'' This language
[[Page 51834]]
establishes the sources covered by the RACT analysis that a Moderate or
higher area must consider. The reference to the attainment date sets an
outer bound of what CTGs will define the categories of sources that
fall under the Moderate RACT requirement. It does not tie the
substantive RACT analysis, and the level of controls required by
application of RACT, to the attainment date.
We also disagree that the stationary source threshold set by the
classification level evidences a connection between RACT and the
attainment date. Just as 182(b)(2)(A) defines the categories of sources
that need to be covered by a RACT assessment so too the stationary
source threshold associated with a classification level defines the
sources that need to be covered in the state's RACT assessment. The
stationary source threshold establishes the emission levels where RACT
would be applied but does not define the substance or content of the
RACT analysis. In this case, the prior Moderate classification required
evaluation of any sources in any category subject to a CTG and any non-
CTG sources with a potential to emit more than 100 tpy of NOx or VOCs.
The commenter is correct in that the new Serious classification means
the State needs to address RACT for additional sources, namely non-CTG
sources with a potential to emit 50 tpy or more of NOx. But the
commenter has failed to explain why this fact, that RACT must be
analyzed and implemented for additional smaller sources, should result
in delayed submission and implementation of RACT on the original set of
sources covered by the Moderate classification. If EPA were to go with
such an interpretation, it would delay the requirement in this instance
for Texas to submit a SIP addressing the RACT obligation from January
1, 2023, to January 1, 2026, in an area that is not attaining the 2015
ozone NAAQS. This would lead to a three-year delay in required controls
in areas that have air quality that exceeds levels protective of human
health and the environment. The commenter has not identified any
language in the CAA that necessitates or even supports such a result.
Finally, the commenters point to the fact that EPA has based RACT
implementation deadlines on the timing required to influence attainment
of the standard by the attainment date. This is a correct
characterization of EPA's action, but also does not inevitably lead to
an interpretation that required SIP revisions and RACT implementation
should be delayed by three years following an area's reclassification.
As explained at proposal and elsewhere in this action, the substantive
analysis required in a RACT SIP, namely the implementation of controls
that are economically and technologically feasible, does not hinge on
what level of control is needed for the area's attainment by the
attainment date (this is in contrast to, e.g., the analysis required
for RACM). A state's RACT SIP should be based on, and EPA will review
it for, imposition of reasonably available control technology, even if
that imposition of reasonably available control technology is not
nearly enough to get the area to attainment by the attainment date. At
the same time, it is also true that implementation of RACT-level
control should aid, at least in part, in getting an area to attainment
by the attainment date. It defies logic to have an area's attainment
date be in 2027, but for EPA to require a SIP revision requiring RACT
level controls not due until 2028. Accordingly, both of these things
can be true: that RACT is not a requirement directly tied to attainment
while also requiring that RACT SIPs be due and RACT-level controls be
implemented in time to matter for the overall efforts to get an area to
attainment.
Comment: Commenters state that while vehicle I/M and nonattainment
new source review (NNSR) elements are not explicitly tied to the
attainment date for a classification, as with the other elements, the
Serious classification would supersede these requirements with more
stringent requirements. Commenters repeat that the evident legislative
goal of the CAA, Part D, Subpart 2 requirements for the ozone NAAQS
clearly indicate that reclassification to more stringent requirements
subsume the less stringent requirements. Commenters add that in cases
where elements are often satisfied with the submittal of certification
statements noting that the requirements have already been addressed,
commonly used for addressing I/M and NNSR requirements, it is illogical
to hold areas under a finding of failure to submit for elements that
have already been submitted and approved under previous classifications
or standards. Commenters state that submittal of a certification
statement is not legally necessary for EPA to know that an element,
upon which EPA has already acted and approved, has been addressed, as
EPA's SIP approval actions legally stand on their own merit. Commenters
state that EPA's treatment of those elements as ``not submitted'' is
legally insufficient to support a finding of failure to submit that
results in sanctions and FIP clocks. Commenters add that the
infrastructure SIP submittal requirements for each NAAQS already
provide certification from the state that existing regulations are
adequate to meet the applicable nonattainment area planning
requirements.
Response: The EPA disagrees. Our January 2024 proposal did not
propose to relieve the Basic I/M and Moderate NNSR requirements for the
DFW, HGB, and San Antonio Moderate nonattainment areas. The Moderate
nonattainment SIP submission deadlines, including the Basic I/M and
Moderate NNSR requirements for the DFW, HGB, and San Antonio
nonattainment areas, were established when the areas were reclassified
from Marginal to Moderate and those deadlines were not challenged.\24\
Our January 2024 proposal only proposed to relieve the Moderate area
attainment demonstration and associated RACM demonstration and
contingency measures specifically tied to the Moderate attainment date.
The remaining Moderate nonattainment plan SIP deadlines, including I/M
and NNSR, are not otherwise altered. We do not believe that the
specific control requirements of the prior classification can or should
be relieved because an area has been reclassified. More stringent NNSR
and I/M are required because the area is subject to Serious
requirements and in this final action, EPA is establishing submission
and implementation deadlines for these new requirements but not
relieving the requirements that should be implemented on the schedule
set in the reclassification from Marginal to Moderate.
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\24\ 87 FR 60897.
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While our October 2023 findings are outside the scope of this
action, the EPA disagrees that SIP certification statements triggered
by a reclassification are redundant and already accomplished through
other SIP processes, including approved SIP submissions under prior
classifications or NAAQS. We continue to interpret the specific
nonattainment planning requirements of CAA section 182 to require a
state to provide a SIP submission to meet each nonattainment area
planning requirement for a revised ozone NAAQS.\25\ To the extent that
commenters suggest the EPA should adopt a general presumption of
adequacy for previously approved SIP elements, we disagree. The
submission of individual nonattainment SIP elements for purposes of a
reclassified area provides the public and the EPA an
[[Page 51835]]
opportunity to review and comment upon each element of a nonattainment
SIP. If the air agency reviews an existing SIP element and concludes it
does not need to be revised in light of the reclassification,
submission of a certification SIP allows the public to review the air
agency's assessment and provide comment on any changes they may think
necessary. The EPA then also has an opportunity to review the air
agency's assessment and ensure that it is consistent with CAA
requirements in relation to the reclassified area. The certification
statement option is intended to streamline the SIP submission process,
providing air agencies with the flexibility to address multiple SIP
elements in a single certification statement, and combine the SIP
certification action with other actions subject to public notice and
comment. The EPA does not believe that developing and submitting
certification SIP elements will be a significant and unnecessary drain
on state resources. We also note with regard to the I/M programs, as
discussed in 40 CFR 51 Subpart S, the vehicle fleet can change and
impact whether the program continues to meet the required performance
standard.
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\25\ See 83 FR 10376 (March 9, 2018) and 40 CFR 51.1302.
---------------------------------------------------------------------------
We disagree that the Texas infrastructure SIP submittal provides
certification that existing regulations are adequate to meet the
applicable nonattainment area planning requirements (CAA section
110(a)(2)(I)). The Texas infrastructure submittal for the 2015 ozone
NAAQS did not address CAA section 110(a)(2)(I).\26\ The infrastructure
SIP submission is triggered by a NAAQS revision and provides the public
and the EPA an opportunity to review the basic structure of a state's
air quality management program. It is not intended--nor can it be
presumed--to address the adequacy of individual nonattainment SIP
elements for purposes of the revised NAAQS.
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\26\ 84 FR 49663 (September 23, 2019). The Texas submission for
this infrastructure action is posted in the docket at
<a href="http://www.regulations.gov">www.regulations.gov</a> and the docket ID is EPA-R06-OAR-2018-0673.
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Comment: Commenters state that the EPA's January 2024 proposal
notes that ``changing the submission requirement or implementation
deadlines for these [Moderate attainment area] elements would delay the
implementation of these measures beyond what the CAA intended.''
Commenters claim however that, like the attainment demonstration and
RACM, all Moderate classification requirements would be superseded with
more stringent requirements under the Serious classification, which
eliminates the need for submittals to cover less stringent requirements
with deadlines that have already passed to meet attainment dates that
would no longer apply. Commenters state that the EPA must give legal
effect to all parts of the statute--not just the parts it prefers.
Commenters state that requiring the state to submit and have EPA act on
these superseded Moderate classification elements would make no logical
or practical sense.
Response: The EPA disagrees. As noted in our January 2024 proposal,
the attainment demonstration with respect to the Moderate attainment
date, the RACM analysis with respect to the Moderate attainment date,
and contingency measures for failure to attain by the Moderate
attainment date are all dependent on the Moderate attainment date. Once
voluntarily reclassified, the area no longer has a Moderate attainment
date. However, the other Moderate area requirements remain in place,
even as the state works to implement the requirements of the higher
classification. The Moderate nonattainment SIP submission deadlines,
including the requirements for the DFW, HGB, and San Antonio Moderate
areas, were established when the areas were reclassified from Marginal
to Moderate--those deadlines were not challenged and they stand as
finalized.\27\ As noted earlier, comments addressing the Moderate
nonattainment area submissions, with the exception of the Moderate
attainment demonstration and the associated RACM and contingency
measures for failure to attain by the Moderate attainment date, are
outside the scope of this action.
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\27\ 87 FR 60897.
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While the EPA agrees that it must give legal effect to all parts of
the statute, the CAA requirements for nonattainment areas are
cumulative, adding more stringent requirements with each higher
classification and building on the requirements of the lower
classifications, and the EPA disagrees that this building of
requirements always results in the lower classification requirements
being superseded. As noted earlier, pursuant to CAA section 182(c),
``each State in which all or part of a Serious Area is located shall,
with respect to the Serious Area . . . make the submissions described
under subsection (b) of this section (relating to Moderate Areas) and
shall also submit the revisions to the applicable implementation plan
(including the plan items) described under this subsection.'' Except
for elements specifically related to the attainment date, which are
superseded by a voluntary reclassification, the higher classification
requirements are added to the lower classification requirements. For
example, although the Serious area major source threshold is more
stringent than it is for a Moderate area, this does not supersede the
NSR requirements for any source covered under the Moderate threshold.
Instead, NSR requirements for smaller sources under the Serious
threshold are in addition to those for sources covered under the
Moderate threshold.
Our approach here is consistent with past actions to grant
voluntary reclassifications. When Texas previously requested a
voluntary reclassification for the HGB area from Moderate to Severe
under the 1997 ozone NAAQS, we noted that, ``Texas has a continuing
responsibility for certain elements of the Moderate area requirements.
EPA has stated that reclassification does not provide a basis for
extending submission deadlines for SIP elements unrelated to the
attainment demonstration that were due for the area's Moderate
classification.'' \28\ We subsequently approved the HGB RFP for the
Moderate nonattainment area for the 1997 ozone NAAQS.\29\ We maintain
that Texas has not been released from its CAA obligations to comply
with SIP submission deadlines for other Moderate area requirements not
related to the attainment demonstration.
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\28\ 73 FR 56983, 56991 (October 1, 2008).
\29\ 74 FR 18298 (April 22, 2009).
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Comment: The commenter states that, as an alternative to all
Moderate classification requirements being mooted, the Moderate
classification RFP contingency measure element could be mooted for
areas where RFP targets have been met and requests clarification on how
to demonstrate this element is no longer required. The commenter also
cites 85 FR 40026, a proposed reclassification action in which EPA
proposed to determine that contingency measures for RFP were no longer
necessary for the prior Moderate classification nonattainment plan
because the state had adequately demonstrated that the applicable
quantitative milestones under the Moderate plan had been met.\30\ The
commenter states that if it can demonstrate that the RFP targets have
been met for the San Antonio, DFW, and HGB Moderate nonattainment
areas, the requirement to submit RFP contingency
[[Page 51836]]
measures would be unnecessary. The commenter states that since the
milestone compliance demonstration is not required for the Moderate
areas, the TCEQ requests clarification regarding the appropriate
mechanism to demonstrate that the Moderate RFP targets have been met.
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\30\ See ``Approval and Promulgation of Implementation Plans;
Designation of Areas for Air Quality Planning Purposes; California;
South Coast Moderate Area Plan and Reclassification as Serious
Nonattainment for the 2012 PM <INF>2.5</INF> NAAQS.'' 85 FR 40026,
40048-40049 (July 2, 2020).
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Response: The EPA acknowledges that in certain unideal situations,
where the state has demonstrated that an RFP milestone has actually
been met and where EPA has determined that demonstration to be
adequate, the question of whether the state has adequate contingency
measures for failure to meet RFP with respect to that milestone can be
moot. This situation is unideal because the CAA is not designed to
operate this way with respect to timing, and these situations typically
arise because the state is overdue for submitting approvable
contingency measures. Under normal CAA timelines, the contingency
measures submittal and EPA approval should occur before the RFP
milestone arrives so that the contingency measures could be triggered
if the area failed to meet RFP. States should not delay submittal of
required contingency submittals in the hopes that they may become moot
at a later time. Such an approach contravenes the statutory timelines
established by the CAA, and the intent of the contingency measures
requirement. If this situation arises and the RFP milestone is not met,
the CAA requires implementation of contingency measures without further
action by the state or EPA. That requirement cannot be met on time if
the contingency measures submittal is delayed.
For these reasons, EPA made a finding of failure to submit for
contingency measures triggered by failure to meet RFP for the Moderate
ozone nonattainment areas at issue here (and other elements) in October
2023. That finding started sanctions and FIP clocks that are still
running because these (and other elements) are still outstanding. With
this voluntary reclassification, EPA also urges the timely submittal of
all required elements for the Serious classification, including
contingency measures for all Serious RFP milestones and for failure to
attain by the Serious area attainment date.
Under unusual circumstances in which EPA determines the Moderate
area RFP reduction target was met before the state makes its overdue
submittal to satisfy the requirement for Moderate contingency measures
for failure to meet RFP, the EPA believes that no submittal of
contingency measures for Moderate area RFP would be necessary. We
acknowledge the EPA took a similar position within a PM <INF>2.5</INF>
action cited by the commenter and believe the same logic could apply
here.
This situation is also somewhat similar to EPA's prior disapproval
of contingency measures in Texas for the 2008 Ozone NAAQS where we
stated that, ``EPA agrees with TCEQ that there is no longer a need for
contingency measures triggered by failure to meet RFP for the DFW and
HGB Serious nonattainment plan for purposes of the 2008 8-hour ozone
NAAQS, because these areas met RFP for this specific classification.
However, contingency measures are still required for the failure to
attain (and indeed, noting the fact that areas failed to attain, should
already have taken effect).'' \31\ There, the contingency measures were
not needed for failure to meet RFP because EPA had previously
determined that the area had met RFP, but contingency measures were
still needed for failure to attain. But here, as explained previously,
with this voluntary reclassification there will be no possibility of
failure to attain by the Moderate area attainment date, and so the
voluntary reclassification negates the need for contingency measures
for failure to attain for the Moderate classification. Further, an RFP
demonstration that EPA determined to be adequate would in this case
negate the need to submit the Moderate contingency measures for failure
to meet RFP, thus resulting in mooting the Moderate area contingency
measures requirement entirely. Note, however, that the first Serious
area RFP milestone is December 31, 2026, so a timely Serious area
contingency measures submittal by January 1, 2026, is necessary to
ensure that contingency measures are in place before the milestone
occurs.
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\31\ 87 FR 67957 (October 3, 2023).
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Finally, in response to the commenter's inquiry as to the
appropriate mechanism for demonstrating that the Moderate RFP emission
reduction targets have been met, the EPA notes that it does not have
specific guidance or rules for this. Section 182(g) of the CAA does not
require a milestone compliance demonstration (MCD) for Moderate areas.
EPA expects that the process would work similar to that for PM (40 CFR
51.1013(b)) or for other MCDs for ozone (40 CFR 51.1310(c)(2)), where
the state would provide to the EPA Regional Administrator a formal
demonstration (e.g., from the Governor or designee) showing the basis
for establishing that RFP was met. The contingency measures SIP
submittal requirement for failure to meet RFP would not be mooted
unless and until EPA formally responds with a determination that it is
adequate. EPA encourages the state to work with the Regional Office to
discuss the demonstration process further.
Comment: The TCEQ states that the EPA should allow states
flexibility in meeting RFP requirements, especially in areas where
states can demonstrate that required reductions would not advance
attainment. The TCEQ states that RFP requirements for areas classified
as Moderate nonattainment for the 2015 ozone NAAQS are incredibly
challenging to meet due to the significant reductions in ozone
precursor emissions since 1990. The TCEQ states that as moderate
classification RFP targets will still need to be demonstrated for the
Bexar County nonattainment area under the Serious classification, EPA
should allow states to substitute NO<INF>X</INF> emissions reductions
in place of the 15 percent reduction in VOC required for initially
designated Moderate ozone nonattainment areas when NO<INF>X</INF>
emissions reductions are demonstrated to be at least as effective at
reducing ozone concentrations. The TCEQ states that it recognizes that
the CAA mandates the 15 percent VOC emissions reductions, but
preliminary TCEQ photochemical modeling indicates that VOC reductions
will not advance attainment of the 2015 ozone NAAQS in Bexar County.
The TCEQ states that instead, this modeling indicates NO<INF>X</INF>
emissions reductions will be more effective at reducing ozone
concentrations in Bexar County. The TCEQ states that in Bexar County,
point sources account for less than 5 percent of the total
anthropogenic VOC emissions, and that area sources (including emissions
from consumer products) account for about 70 percent of anthropogenic
VOC emissions. The TCEQ states that the EPA should not require states
to develop regulations that are ineffective at reducing ozone,
economically penalizing to consumers, difficult to enforce, and
unlikely to achieve the required reductions. The TCEQ states that
allowing states flexibility in this sphere (and others discussed
herein) will further the CAA's cooperative federalism framework, ensure
proper respect for the states' role in fulfilling their CAA
obligations, and result in better outcomes consistent with the aims of
the CAA.
Response: We appreciate these comments and recognize the challenges
that meeting the 15 percent VOC emissions reduction requirement can
pose for newly designated ozone nonattainment areas. The EPA is working
on this issue with several states to identify approaches that would be
[[Page 51837]]
allowable under the Clean Air Act including under CAA section
182(b)(1)(A)(ii), which specifically provides that a state may use a
percentage less than 15 percent by adopting certain requirements.
Comment: Commenter states that the TCEQ submitted SIP revisions to
EPA addressing Basic I/M for the San Antonio Moderate nonattainment
area on December 18, 2023.
Response: The EPA agrees and will act on the SIP submissions for
Basic
I/M for the San Antonio area in a separate rulemaking action.
Comment: Commenters state that the EPA must require RACM to be
adopted for the DFW, HGB, and San Antonio Moderate nonattainment areas.
Commenters mention that courts have deferred to EPA's decisions tying
RACM to the statutory attainment deadlines and state that EPA has
``authority to change its approach to RACM, so long as it ``displays
awareness that it is changing position, provides a reasoned explanation
for the change, and is also cognizant of reliance interests on the
agency's prior policy.'' \32\
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\32\ Commenter referenced Encino Motorcars, LLC v. Navarro, 579
U.S. 211, 221-22 (2016); FCC v. Fox Television Stations, Inc., 556
U.S. 502, 515 (2009).
---------------------------------------------------------------------------
Response: We appreciate the information provided by the commenters.
The EPA disagrees that RACM is required in this circumstance for the
DFW, HGB, and San Antonio Moderate nonattainment areas. EPA has long
interpreted the CAA requirement for ozone nonattainment areas to assess
and implement reasonably available control measures to mean that states
need to analyze and implement measures that advance an ozone area's
attainment, and a measure is not RACM if it would not advance the
attainment date (57 FR 13498, 13560).\33\ As the commenters note, this
interpretation has been upheld by federal courts. See Sierra Club v.
EPA, 294 F.3d 155 (D.C. Cir. 2002) and Sierra Club v. United States
EPA, 314 F.3d 735 (5th Cir. 2002). In developing a SIP revision
pursuant to the RACM requirement, a state must consider all potentially
available measures to determine whether they are reasonably available
for implementation in the area, and whether they would advance the
area's attainment date. The state may reject any measures as not RACM
if they would not advance the attainment date, would cause substantial
widespread and long-term adverse impacts, or would be economically or
technologically infeasible. Sierra Club v. EPA at 162-163 (D.C. Cir.
2002); Sierra Club v. EPA, 314 F.3d 735 (5th Cir. 2002); BCCA Appeal
Group v. EPA, 355 F.3d 817 (5th Cir. 2003). Following reclassification
as Serious, to demonstrate measures that advance attainment of the
ozone standard the emission reductions from the measures must occur no
later than the start of the 2015 ozone NAAQS attainment season--i.e.,
by January 1, 2026 (for the HGB area) and by March 1, 2026 (for the DFW
and San Antonio areas). Because the relevant attainment date for such
an analysis will be the Serious area attainment date, we believe it is
appropriate to conclude that a demonstration of RACM with respect to
the Moderate area attainment date no longer has meaning.
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\33\ See also EPA's ``Guidance on the Reasonably Available
Control Measures (RACM) Requirement and Attainment Demonstration
Submissions for Ozone Nonattainment Areas,'' John S. Seitz,
Director, Office of Air Quality Planning and Standards, November 30,
1999.
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We acknowledge and support the commenters' claim that the EPA has
authority to change our approach to RACM, ``so long as we display
awareness that we are changing position, provide a reasoned explanation
for the change, and are also cognizant of reliance interests on the
agency's prior policy.'' However, EPA is not changing its historical
interpretation of the RACM requirement in this action, as outlined in
our final rule for implementation of the 2015 ozone NAAQS, which
retains our existing general RACM requirements \34\ and our
reclassification of areas classified as Marginal for the 2015 ozone
NAAQS does not address any change in our approach to RACM.\35\
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\34\ 83 FR 62998, 63007 and 40 CFR 51.1312(c).
\35\ 87 FR 60897.
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Comment: Commenters provide examples of RACM that could be quickly
implemented in the DFW, HGB, and San Antonio nonattainment areas.
Response: The EPA appreciates the information and examples
provided. Following reclassification, such measures must be considered
as Texas undertakes the required RACM analysis for the newly
reclassified Serious areas, and Texas must evaluate these measures for
their potential to advance the attainment date ahead of the otherwise
applicable Serious date.
Comment: Commenters state that reclassification as Serious does not
change the submission requirement or implementation deadlines for these
five SIP elements that were due January 1, 2023, for the DFW, HGB, and
San Antonio Moderate nonattainment areas: (1) a 15 percent rate-of-
progress (``ROP'') plan, (2) contingency measures for failure to
achieve RFP, including the 15 percent ROP requirement for Moderate
areas, (3) a RACT demonstration, (4) NNSR rules; and (5) a Basic I/M
program.
Response: The EPA agrees.
C. Required Plans, and Submissions and Implementation Deadlines
1. Serious Area Plan Requirements
Our January 2024 proposal did not propose any changes to the
Serious area plan requirements but instead listed the SIP requirements
that apply specifically to Serious areas, consistent with CAA sections
172(c) and 182(c), and 40 CFR 51 Subpart CC.\36\ We received no
comments addressing the Serious area plan requirements. Therefore, we
are finalizing the Serious area plan requirements as proposed and such
plan requirements are listed in Section III of this final action.
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\36\ 89 FR 5145, 5148.
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2. Submission Deadline for the San Antonio, DFW, and HGB Area SIPs for
the 2015 Ozone NAAQS
We invited comments 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.
Comment: Commenters provide a wide range of recommendations,
including ``as expeditiously as possible'' and that the SIP submission
deadline be set at 12 months. Commenters also state that the 12-month
SIP deadline based on CAA section 179(d) has no relevance to the
current circumstance. Commenters state that a SIP deadline of 18 months
or longer is consistent with CAA section 110(k)(5), allowing the EPA to
establish reasonable deadlines. Commenters also state that the EPA
should finalize a SIP submission deadline of 18 months or January 1,
2026, whichever is later.
One commenter (the TCEQ) urged the EPA to set a submittal deadline
of at least 18 months from the effective date of reclassification, but
no sooner than January 1, 2026. The TCEQ provided justification, citing
the substantial amount of time to conduct modeling, evaluate controls,
develop attainment plans, and conduct rulemaking while allowing
affected sources sufficient time to implement control requirements. The
TCEQ added that significant resources are required to address each of
the three reclassified Serious nonattainment areas and expressed
concern that an expedited SIP submittal deadline would reduce the time
needed to prepare and submit approvable SIPs. The TCEQ also expressed
the desire to incorporate on-road and non-road emission inventories
[[Page 51838]]
in the Serious SIP revisions using the newly released version of the
Motor Vehicle Emission Simulator (MOVES4) model, which would require
significant work to develop inventories for multiple years and areas.
Response: The EPA notes that the proposal pointed to CAA sections
179(d) and 110(k)(5) as examples of statutory provisions establishing
timeframes for states to revise SIPs in instances where SIPs had been
insufficient to result in an area's attainment by the attainment date
and where SIPs had been identified as substantially inadequate to
attain the NAAQS (among other things). To the extent that the commenter
is asserting these provisions do not directly apply to the three areas
being voluntarily reclassified, we agree. But we do not agree that the
timing considerations of those provisions have no relevance to
informing EPA's consideration and establishment of the SIP submission
deadlines contemplated here. Here, as in the situation contemplated by
CAA section 179(d), the areas in question would fail to timely attain
by the Moderate area attainment date, absent the state's voluntary
request to reclassify as Serious. Here, as in the situation
contemplated by CAA section 110(k)(5), the state's SIPs have been
inadequate to attain the NAAQS. So, while we agree that these
provisions do not directly apply because EPA has not made the requisite
findings to trigger those provisions, the Act's imposition of a 12-
month clock, or an outer limit of no more than 18 months, for states to
submit revisions addressing these conditions are informative of the
appropriate timeframe to apply to these areas under these
circumstances. It was therefore reasonable for EPA to propose a range
of statutory timeframes for the SIP submission deadline that were in
part informed by the relevant, though not directly applicable,
statutory situations presented in CAA sections 179(d) and 110(k)(5).
We appreciate the information provided by the TCEQ. We are
finalizing a SIP submission deadline of 18 months from the effective
date of this action or January 1, 2026, whichever is earlier. As noted
in the proposal, the 2026 ozone season, which in some areas begins on
January 1, 2026, is the last ozone season that can impact air quality
before the areas' attainment dates in 2027. We note that commenter's
request that we establish a SIP submission deadline of ``no sooner than
January 1, 2026'' appears to acknowledge the significance of that date
with respect to the statutory and regulatory constraints on SIP
submittal deadlines and implementation. Per EPA's 2015 ozone SRR, and
as discussed below, states must implement RACT no later than the
beginning of the ozone season of the attainment year, see 40 CFR
51.1312(a)(3), and it is appropriate to establish SIP deadlines no
later than when the control measures in those SIPs are required to be
implemented.\37\ As discussed in the proposal, EPA's action
establishing deadlines is informed by CAA section 182(i), which governs
the adjustment of SIP revision deadlines following a mandatory
reclassification for failure to timely attain by the attainment date.
That provision instructs that the Administrator may adjust deadlines
for meeting requirements associated with the reclassification, ``to the
extent such adjustment is necessary and appropriate to assure
consistency among the required submissions.'' CAA section 182(i). Given
that the beginning of the attainment year ozone season for some of
these areas is January 1, 2026 (and for the other two it is March 1) we
are setting the maximum SIP submission deadline as no later than
January 1, 2026, in order to assure consistency among all of the
state's submissions.
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\37\ 40 CFR 51.1312(a)(2)(ii) states that the SIP revision
deadline for a RACT SIP required pursuant to a reclassification is
either 24 months from the effective date of the reclassification
action, or the deadline established by the Administrator in the
reclassification action. In this case, given that a SIP revision
deadline of 24 months from the effective date of reclassification
would be after the deadline for RACT implementation, we are
establishing a deadline in this reclassification action.
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We are finalizing this more extended timeframe for submitting the
Serious area requirements (as opposed to 12 months, which was also
contemplated in the proposal), because we acknowledge, as raised by the
commenter, the complexity in developing and implementing effective
emission reductions for the areas, and the opportunity a longer
timeframe provides for more robust attainment demonstration plans that
include the newer MOVES modeling. Developing and implementing effective
emission reductions for these areas is complex due to the complex
coastal meteorology and large industrial area in the HGB area, and the
large urban and growing populations in all three areas. With a SIP
submission deadline of 18 months from the effective date of this action
but no later than January 1, 2026, we believe the TCEQ will be able to
use the best information available in its Serious SIP submissions,
while ensuring that SIP elements requiring control measures needed for
attainment are submitted no later than when those controls are required
to be implemented.
3. Implementation Deadline for RACT
Comment: A commenter states that there is no way for RACT to be
implemented sooner, or more expeditiously, than the latest date
required by the CAA. Commenters state that the EPA should set
implementation deadlines for RACT by area instead of imposing one
blanket deadline. Commenters state that the EPA has inappropriately
proposed the same RACT implementation deadline (i.e., January 1, 2026)
for all three areas without considering the circumstances of each area.
Commenters state that the different ozone seasons, historic frequency
of ozone exceedances, emission sources, and timelines for emission
control compliance support different implementation deadlines.
Commenters state that the ozone season for the HGB nonattainment area
begins on January 1, but the ozone season for the DFW and San Antonio
nonattainment areas begins on March 1. Commenters state that
implementing RACT at the start of the ozone season would not likely
influence the design values as most of the highest ozone observations
occur in May or later for all three areas. Commenters provide, as an
example, ``the HGB area has not measured an eight-hour ozone
concentration greater than 70 ppb before March 1 for over 10 years so
the requirement for RACT implementation by January 1, 2026, would not
benefit the area's design value.'' Commenters state that advancing
attainment of the area is not a factor of consideration when evaluating
RACT and therefore, it is not imperative that RACT be implemented by no
later than the beginning of the attainment year ozone season; and it is
inadequate support for requiring RACT implementation dates to be
uniform for all nonattainment areas.
Commenters state that the EPA should finalize RACT implementation
deadlines to allow affected entities to comply with RACT on a timeline
that considers sources' ability to control emissions based on
technological and economic feasibility, which are primary factors in
determining RACT. Commenters state that the ability to control could
vary between sources, source categories, and areas, particularly for
Bexar County, and additional time may be needed to allow affected
sources to comply with new rules. Commenters state that compliance may
necessitate that affected sources purchase, install, test, and operate
new equipment or control devices, and even if new
[[Page 51839]]
regulations only require affected sources to replace higher VOC-content
materials with lower VOC-content materials, owners and operators would
still need time to address existing stocks, find suppliers, and order
new supplies.
Response: We appreciate these comments. Texas is now required to
submit SIP revisions to implement RACT level controls for all three
nonattainment areas now classified as Serious, which includes a lower
Serious area source threshold of a potential to emit 50 tpy or more
down from the Moderate area level of 100 tpy.
RACT-level controls should already be largely implemented in the
DFW and HGB areas for sources within the Serious area source threshold,
as these two areas were reclassified from Moderate to Serious for the
2008 ozone NAAQS, effective September 23, 2019, and the required RACT
implementation deadlines were August 3, 2020, and July 20, 2021.\38\
Any delays in implementing the more stringent requirements associated
with reclassification would delay related air quality improvements and
human health benefits for residents across these areas, including those
that may already bear a disproportionate burden of pollution, as shown
in the Environmental Justice (EJ) considerations referenced in our
January 2024 proposal and included in the docket for this action.
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\38\ See 84 FR 44238 (August 23, 2019). The implementation
deadline for RACT measures tied to attainment was August 3, 2020,
and the implementation deadline for RACT measures not tied to
attainment was July 20, 2021.
---------------------------------------------------------------------------
We appreciate the TCEQ's comments addressing eight-hour ozone
concentrations greater than 70 ppb before March 1 in the HGB area. We
reviewed the State's data for the San Antonio, DFW, and HGB areas for
January and February, from 2013 through 2024, and did not see any
regulatory monitors with concentrations over 70 ppb.\39\ However,
consistent with our January 2024 proposal and the EPA's implementing
regulations for the 2015 ozone NAAQS, for RACT required pursuant to
reclassification, for the HGB area we are finalizing the Serious RACT
implementation deadline to be as expeditiously as practicable, but no
later than the start of the attainment year ozone season associated
with the area's new attainment deadline, which is January 1, 2026.\40\
For the DFW area, consistent with our January 2024 proposal and the
EPA's implementing regulations for the 2015 ozone NAAQS, for RACT
required pursuant to reclassification we are finalizing the Serious
RACT implementation deadline to be as expeditiously as practicable, but
no later than the start of the attainment year ozone season associated
with the area's new attainment deadline, which is March 1, 2026.\41\
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\39\ <a href="https://www.tceq.texas.gov/cgi-bin/compliance/monops/8hr_monthly.pl">https://www.tceq.texas.gov/cgi-bin/compliance/monops/8hr_monthly.pl</a>
\40\ See 40 CFR 51.1312(a)(3)(ii).
\41\ Ibid.
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We appreciate the TCEQ's concerns regarding RACT in Bexar County.
However, the implementation deadline for the Moderate area RACT was
January 1, 2023, and by this time, implementation of RACT for the
Moderate area should already be underway in the San Antonio area.
Accordingly, most sources should already be under RACT controls for the
Moderate classification and this voluntary reclassification as Serious
will add those sources emitting less than 100 tpy that have the
potential to emit 50 tpy or more. In addition, and as noted earlier,
delays in implementing the more stringent requirements associated with
reclassification would delay related air quality improvements and human
health benefits for residents across the San Antonio nonattainment
area, including those that may already bear a disproportionate burden
of pollution, as shown in the EJ considerations referenced in our
January 2024 proposal and included in the docket for this action.
Therefore, consistent with our January 2024 proposal and the EPA's
implementing regulations for the 2015 ozone NAAQS, for RACT required
pursuant to reclassification we are finalizing the Serious RACT
implementation deadline to be as expeditiously as practicable, but no
later than the start of the attainment year ozone season associated
with the area's new attainment deadline, which is March 1, 2026.\42\
---------------------------------------------------------------------------
\42\ Ibid.
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4. Implementation Deadline for Enhanced I/M Programs
Comment: The Office of the Harris County Attorney states that
vehicle emissions in Harris County are especially important in tackling
ozone because the area's vehicle emissions will likely increase in the
next several years as heavy traffic and population increase. The
commenter believes a three-year deadline is reasonable and more
appropriate than the proposed four-year deadline.
Response: We appreciate the commenter's concerns. The HGB (which
includes Harris County), as well as the DFW, Serious ozone
nonattainment areas are currently implementing Enhanced I/M pursuant to
the requirements for the 2008 ozone NAAQS.\43\ However, as described in
our January 2024 proposal and consistent with the I/M regulations, for
the existing Enhanced I/M programs in these areas, the TCEQ would need
to conduct and submit a performance standard \44\ modeling (PSM)
analysis \45\ 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.\46\ The TCEQ 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 TCEQ 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.\47\ To this end, the TCEQ included a PSM analysis 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 Moderate
attainment demonstrations for the 2015 ozone NAAQS.\48\ The EPA will
address these SIP revisions in a separate future action after the TCEQ
has finalized the proposed I/M SIP revisions and submitted them to the
EPA for consideration.
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\43\ See 88 FR 61971 (September 8, 2023).
\44\ 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>.
\45\ 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>.
\46\ 40 CFR 51.372(a)(2).
\47\ 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.
\48\ The DFW proposed SIP revision is identified as Project No.
2022-021-SIP-NR and the HGB proposed SIP revision is identified as
Project No. 2022-022-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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We also discussed in our January 2024 proposal that if the State
wishes to rely upon emission reductions from any revisions to its I/M
programs in SIPs demonstrating attainment or RFP, the State would need
to fully implement these I/M program revisions as expeditiously as
practicable but no later than the beginning of the applicable
[[Page 51840]]
attainment year, i.e., January 1, 2026 for the HGB area and March 1,
2026 for the DFW and San Antonio areas. However, the EPA has long taken
the position that, like VOC RACT, 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.\49\ Thus, EPA believes that if the
emission reductions from any I/M program revisions are not relied upon
to demonstrate attainment by the attainment deadline or towards RFP for
the 2015 ozone NAAQS, then an implementation deadline of no more than
four years after the effective date of reclassification is reasonable
given the unique nature of I/M programs and the many challenges, tasks,
and milestones that must be met in implementing an Enhanced I/M
program.
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\49\ 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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Furthermore, giving up to a four-year timeframe to implement
Enhanced I/M in reclassified Serious nonattainment areas (that do not
rely upon emission reductions from the new or revised Enhanced I/M
programs for attainment demonstration or RFP SIP purposes) is
consistent with the no more than four-year I/M implementation period
established in the recent final rule that reclassified Marginal
nonattainment areas to Moderate for the 2015 ozone NAAQS (which
triggered requirements for Basic I/M programs).\50\ Therefore, the EPA
is finalizing its proposed deadline, that any new or revised Enhanced
I/M programs, not intending to rely upon emission reductions from the
new or revised Enhanced I/M programs for attainment demonstration or
RFP SIP purposes, are to be fully implemented as expeditiously as
practicable but no later than four years after the effective date of
this final action.
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\50\ See 87 FR 60897.
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Comment: The commenter disagrees that it is necessary to establish
a January 1, 2026, implementation date for the Enhanced I/M program
under the Serious classification in order to use the emissions
reductions toward meeting Serious area attainment demonstration and RFP
SIP obligations. The commenter states that the EPA has not provided a
rationale for why newly required Enhanced I/M programs for the 2015
ozone standard would have to be fully implemented by no later than
January 1, 2026, the beginning of the Serious classification attainment
year. The commenter contends that if emissions reductions from
implementation of an Enhanced I/M program can be used for meeting SIP
requirements under the Serious classification, the reductions can be
based on when the program starts within the attainment year. The
commenter states that emissions reductions from I/M programs are
variable, depending on the number of vehicles tested in any given
month, the vehicles' emissions profiles, and state of repair.
Response: We appreciate these comments. However, as mentioned in
our proposal and the SRR for the 2015 ozone NAAQS, all control measures
in the attainment plan and demonstration must be implemented no later
than the beginning of the attainment year ozone season, notwithstanding
any alternate RACT and/or RACM implementation deadline requirements in
40 CFR 51.1312 (see 40 CFR 51.1308(d) and 83 FR 62998). Therefore, for
those areas intending to rely upon emissions reductions from any
revisions to its I/M programs for the Serious attainment demonstration
or RFP SIP purposes, it is necessary to establish an I/M implementation
deadline of no later than the start of the attainment year ozone
season.
The EPA is finalizing its proposed deadline, that any new or
revised Enhanced I/M programs, intending to rely upon emission
reductions from the new or revised Enhanced I/M programs for attainment
demonstration or RFP SIP purposes, are to be fully implemented as
expeditiously as practicable but no later than January 1, 2026 (for the
HGB area) and March 1, 2026 (for the DFW and San Antonio areas).
5. Reporting Deadline for the Transportation Control Demonstration
We received no comments addressing the reporting deadline for the
transportation control demonstration. Therefore, consistent with our
proposal and CAA section 182(c)(5), the first transportation control
demonstration is due no later than January 1, 2028, which is two years
after the attainment demonstration SIP is due, and subsequent
transportation control demonstrations are due every three years
thereafter.
Environmental Justice
Comment: The Office of the Harris County Attorney states that EPA
provides an analysis of the HGB area's environmental justice (EJ)
considerations in the proposed rule and notes that analyzing Harris
County and its population with the inclusion of two other counties
might not be the most accurate or effective way of understanding the EJ
issues in Harris County. The commenter states that Harris County is
geographically larger than Rhode Island, has a population larger than
several states, is the third largest county in the United States, and
has a sizable income gap. The commenter states that Harris County
contains urban, suburban, and rural populations and does not have
zoning laws, so commercial and industrial areas are often sited within
or near residential areas, and consequently, neighborhoods in Harris
County experience ozone pollution and EJ factors in different degrees.
The commenter states that EPA noted this discrepancy in denying Texas's
request for a 1-year extension of the attainment date for the HGB area
for the 2008 ozone NAAQS--EPA based its denial, in part, on
``considerations of existing pollution burdens for some communities
within the area.'' \51\ The commenter states that EPA noted communities
residing and working near violating ozone monitors in the Houston area
and the Houston Ship Channel are exposed to a significant and
disproportionate burden of ozone pollution and other sources of
pollution (e.g., vehicle traffic and particulate matter emissions)
compared to the greater Houston area and the U.S. as a whole.\52\ The
commenter asks the EPA to factor this disparity between populations in
Harris County into future EJ analysis in actions concerning Harris
County.
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\51\ 87 FR 60926, 60927 (October 7, 2022).
\52\ Ibid, page 60929. Emphasis added by the commenter.
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Response: The EPA appreciates these comments.
Comment: Commenters state that the EPA's analysis failed to
identify that EJScreen indicators in Bexar County exceed the 80th
percentile for particulate matter and ozone pollution, although a graph
provided in the docket did so.\53\ Commenters state that this
information does not change the result, but it is essential that EPA
accurately identify environmental justice issues.
---------------------------------------------------------------------------
\53\ See ``Environmental Justice Considerations'' in the docket
for this action.
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Response: The EPA appreciates these comments.
D. General
Comment: The TCEQ states that the EPA should conduct rulemaking to
establish requirements for approvable contingency measures or, in the
absence of rulemaking, finalize and respond to the comments submitted
on the March 2023 draft guidance on contingency measure requirements.
Commenters
[[Page 51841]]
state that finalization of this guidance is necessary for the TCEQ to
meet the deadlines required for SIP development related to this
reclassification action and to develop effective measures that EPA may
find approvable.
Response: The EPA acknowledges this comment. Our draft guidance
serves as a useful interim statement of EPA policy that can inform
States' contingency measures SIP development. As to the necessity or
desirability of EPA conducting a rulemaking or finalizing guidance, or
the timing thereof, these comments are outside the scope of this
action. With respect to TCEQ's concerns about developing approvable
contingency measures for the Serious attainment plan in the absence of
finalized guidance, EPA staff is available to assist the TCEQ in the
development and implementation of approvable contingency measures that
are consistent with the statute and relevant court decisions.
Comment: Commenters state that it is not logical to run a sanctions
clock for deadlines that have already passed and will be reset based on
a higher classification. Commenters state that the EPA should terminate
all sanctions clocks associated with its October 2023 findings. Other
commenters state that the EPA should move forward with FIPs under the
October 2023 findings.
Response: The EPA did not propose sanctions in our January 2024
proposal. Comments addressing our October 2023 findings are outside the
scope of this action. However, as discussed in detail elsewhere in this
final action, all Moderate area requirements remain in effect with the
exception of the Moderate attainment demonstration, contingency
measures associated with failure to attain by the Moderate attainment
date, and RACM associated with the Moderate area attainment date.
Comment: Commenters state that the EPA is well within its authority
to direct for any judicial review of final action to the D.C. Circuit.
Response: The EPA appreciates these comments.
III. Final Action
Pursuant to CAA section 181(b)(3), we are granting the Texas
Governor's request to voluntarily reclassify the San Antonio, DFW, and
HGB nonattainment areas from Moderate to Serious for the 2015 ozone
NAAQS. The EPA is also finalizing a deadline of 18 months from the
effective date of this action or January 1, 2026, whichever is earlier,
for the TCEQ to submit SIP revisions addressing the CAA Serious ozone
nonattainment area requirements for the San Antonio, DFW, and HGB
areas. The Serious area requirements 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); 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. We
are also finalizing deadlines for implementation of new RACT controls:
in the HGB area, implementation shall occur as expeditiously as
practicable but no later than January 1, 2026, and in the San Antonio
and DFW areas implementation shall occur as expeditiously as
practicable but no later than March 1, 2026. We are also finalizing a
deadline for any new or revised Enhanced I/M programs in the HGB area
to be fully implemented as expeditiously as practicable but no later
than January 1, 2026, if emission reductions from I/M program revisions
are relied upon for attainment demonstration or RFP SIP purposes and no
later than four years after the effective date of the final action
reclassifying these areas as Serious for the 2015 ozone NAAQS if
emission reductions from I/M program revisions are not relied upon for
attainment demonstration or RFP SIP purposes. We are also finalizing a
deadline for any new or revised Enhanced I/M programs in the San
Antonio and DFW areas to be fully implemented as expeditiously as
practicable but no later than March 1, 2026, if emission reductions
from I/M program revisions are relied upon for attainment demonstration
or RFP SIP purposes and no later than four years after the effective
date of the final action reclassifying these areas as Serious for the
2015 ozone NAAQS if emission reductions from I/M program revisions are
not relied upon for attainment demonstration or RFP SIP purposes. We
are also finalizing a deadline for the first transportation control
demonstration, as required by CAA section 182(c)(5), of no later than
January 1, 2028, and for subsequent transportation control
demonstrations every 3 years thereafter.
IV. Environmental Justice Considerations
As stated in our January 2024 proposal and for informational
purposes only, EPA conducted screening analyses of the San Antonio,
DFW, and HGB areas using EPA's Environmental Justice (EJ) screening
tool (EJScreen tool, version 2.2).\54\ The results of this analysis are
provided for informational and transparency purposes, not as a basis of
our proposed action. The EJScreen analysis reports are available in the
docket for this rulemaking. The EPA found, based on the EJScreen
analyses, that this final action will not have disproportionately high
or adverse human health or environmental effects on a particular group
of people, because EPA's granting of the Texas Governor's request to
reclassify the San Antonio, DFW, and HGB ozone nonattainment areas from
Moderate to Serious will require ongoing reductions of ozone precursor
emissions, as required by the CAA. Specifically, this final rule would
require that Texas submit plans for each area including: 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);
Contingency measures (CAA sections 172(c)(9) and 182(c)(9)); and a
demonstration evaluating the need for a transportation control measure
program (CAA section 182(c)(5)). These required measures would help to
improve air quality in the affected nonattainment areas. 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>.
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\54\ See <a href="https://www.epa.gov/ejscreen">https://www.epa.gov/ejscreen</a>.
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V. 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 final 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
[[Page 51842]]
requirements does not impose a materially adverse impact under
Executive Order 12866.
B. Paperwork Reduction Act (PRA)
This final action does not impose an information collection burden
under the provisions of the PRA.
C. Regulatory Flexibility Act (RFA)
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities under the RFA. This
final action will not impose any requirements on small entities.
Granting a request to reclassify an area to the next higher
classification does not in and of itself create any new requirements
beyond what is mandated by the CAA. Instead, this rulemaking only makes
factual conclusions, and does not directly regulate any entities.
D. Unfunded Mandates Reform Act of 1995 (UMRA)
This final 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 final action
imposes no new enforceable duty on any State, local or Tribal
governments or the private sector.
E. Executive Order 13132: Federalism
This final action does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the National Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This final 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 final 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 action is not subject to Executive Order 13045
because it does not establish an environmental standard intended to
mitigate health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This final 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 final 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 final 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 nonattainment areas, and set
deadlines for implementation of controls required for these three
nonattainment areas. This final 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 action to the public, not as a basis of the
action.
K. Congressional Review Act (CRA)
This final rule is exempt from the CRA because it is a rule of
particular applicability. The rule makes factual determinations for
specific entities and does not directly regulate any entities. The
EPA's approval to grant the request to reclassify does not in itself
create any new requirements beyond what is mandated by the CAA.
L. Judicial Review
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 August 19, 2024. 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 81
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: June 10, 2024.
Earthea Nance,
Regional Administrator, Region 6.
Part 81, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
1. The authority citation for part 81 continues to read as follows:
[[Page 51843]]
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Texas
0
2. Section 81.344 is amended in the table for ``Texas--2015 8-Hour
Ozone NAAQS [Primary and Secondary]'' by revising the entries for
``Dallas-Fort Worth, TX'', ``Houston-Galveston-Brazoria, TX'', and
``San Antonio, TX'' to read as follows:
Sec. 81.344 Identification of plan.
* * * * *
Texas--2015 8-Hour Ozone NAAQS
[Primary and secondary]
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area \1\ ----------------------------------------------------------------------------------
Date \2\ Type Date \2\ Type
----------------------------------------------------------------------------------------------------------------
Dallas-Fort Worth, TX........ .............. Nonattainment.......... July 22, 2024....... Serious.
Collin County.
Dallas County.
Denton County.
Ellis County.
Johnson County.
Kaufman County.
Parker County.
Tarrant County.
Wise County.
* * * * * * *
Houston-Galveston-Brazoria, .............. Nonattainment.......... July 22, 2024....... Serious.
TX.
Brazoria County.
Chambers County.
Fort Bend County.
Galveston County.
Harris County.
Montgomery County.
San Antonio, TX.............. 9/24/2018 Nonattainment.......... July 22, 2024....... Serious.
Bexar County.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the
boundaries of any area of Indian country in this table, including any area of Indian country located in the
larger designation area. The inclusion of any Indian country in the designation area is not a determination
that the state has regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is August 3, 2018, unless otherwise noted.
* * * * *
[FR Doc. 2024-13193 Filed 6-18-24; 8:45 am]
BILLING CODE 6560-50-P
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