Determination of Nonattainment as of November 15, 1996, and November 15, 1999, and Reclassification of the Beaumont/Port Arthur Ozone Nonattainment Area; State of Texas; Supplemental Proposed Rule

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: June 19, 2003 (Volume 68, Number 118)]
[Proposed Rules]
[Page 36756-36763]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jn03-9]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-122-1-7612; FRL-7515-2]

Determination of Nonattainment as of November 15, 1996, and
November 15, 1999, and Reclassification of the Beaumont/Port Arthur
Ozone Nonattainment Area; State of Texas; Supplemental Proposed Rule

AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplemental proposed rule.

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SUMMARY: On December 11, 2002, the U.S. Court of Appeals for the Fifth
Circuit (the Court) reversed EPA's extension of the attainment date for
the Beaumont/Port Arthur moderate 1-hour ozone nonattainment area
(BPA). The Court concluded that the Federal Clean Air Act (the Act or
CAA) precludes such an extension as a matter of law. The Court remanded
our final action approving the ozone attainment demonstration State
Implementation Plan (SIP) and the motor vehicle emissions budgets
(MVEB) and our finding that the BPA area is implementing all reasonably
available control measures (RACM), for proceedings consistent with the
Court's opinion and for EPA to demonstrate an examination of all
relevant data and provide a plausible explanation for the rejection of
proposed RACMs.
In response to the Court's reversal, EPA is withdrawing its final
action that extended the attainment date to November 15, 2007, and
approved the transport demonstration. The EPA is proposing to issue a
finding that BPA has failed to attain the 1-hour ozone national ambient
air quality standard (NAAQS or standard) by November 15, 1996, the
attainment date for moderate nonattainment areas set forth in the Act.
If EPA takes final action on this finding, the BPA area would be
reclassified as a serious 1-hour ozone nonattainment area. If EPA
issues a final

[[Page 36757]]

notice of reclassification of the BPA area to serious, EPA is proposing
in the alternative two options for identifying the appropriate
attainment date for the area. Under Option 1, EPA is proposing an
additional finding that the area failed to attain the 1-hour ozone
standard by November 15, 1999, the attainment date for serious
nonattainment areas. If EPA takes final action on this finding, the
area would therefore be reclassified as a severe 1-hour ozone
nonattainment area, with an attainment date of no later than November
15, 2005. Alternatively, under Option 2, the EPA is proposing to
reclassify BPA to a serious 1-hour ozone nonattainment area, and retain
that classification with an attainment date of no later than November
15, 2005, thereby giving the State a prospective opportunity as a
serious area to attain the standard. Under either alternative, we are
proposing that the State of Texas submit the required SIP revision on
or before one year after the effective date of a final action on this
notice. We are further proposing to adjust the dates by which the area
must meet the rate-of-progress (ROP) requirements and adjust
contingency measure requirements as they relate to the ROP
requirements. Due to the revised attainment date in response to the
remand, we are proposing to withdraw our final approval of BPA's 2007
attainment demonstration SIP, the MVEB, the mid-course review
commitment (MCR),and our finding that BPA implemented all RACM. We also
propose the schedule for Texas to submit a revised SIP, a new MVEB, and
a re-analysis of RACM.
In particular, we are soliciting comments on the alternate proposed
Options 1 and 2.

DATES: Written comments must be received on or before July 21, 2003.

ADDRESSES: Comments on this action can be mailed to Mr. Thomas H.
Diggs, Chief, Air Planning Section (6PD-L), U.S. Environmental
Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-2733 or e-
mailed to diggs.thomas@epa.gov. Copies of documents relevant to this
action are available for public inspection during normal business hours
at the following locations. Anyone wanting to examine these documents
should make an appointment with the appropriate office at least two
working days in advance.
Environmental Protection Agency, Region 6, Air Planning Section
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT: Steven Pratt, Air Planning Section
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733. Telephone Number
(214) 665-2140, e-mail Address: pratt.steven@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means EPA. This supplementary information section is organized
as listed in the following Table of Contents:

I. What Is the Background for this Proposed Action?
II. What Are the National Ambient Air Quality Standards?
III. What Is the NAAQS For Ozone?
IV. What is a SIP and How Does it Relate to the NAAQS for Ozone?
V. What Is the Beaumont/Port Arthur Nonattainment Area?
VI. What Is the Additional Context for this Proposed Rulemaking?
VII. Why Are We Proposing to Reclassify the Beaumont/Port Arthur
Area?
VIII. What Is the Proposed New Attainment Date for the Beaumont/Port
Arthur Area?
IX. What is the Proposed Date for Submitting a Revised SIP for the
Beaumont/Port Arthur Area?
X. Why are We Proposing to Withdraw the Attainment Demonstration,
MCR, and MVEB approvals and the RACM Finding, and What Are the
Potential Impacts of the Proposed Withdrawals?
XI. How does the Recent Release of MOBILE6 Interact with
Reclassification?
A. What is the Relationship between MOBILE6 and the Attainment
Year Motor Vehicle Emissions Budgets?
B. What is the Relationship Between MOBILE6 and the Post-1996
Rate-of-Progress Requirement?
XII. What will be the Rate-of-Progress and Contingency Measure
Schedules?
A. Rate-of-Progress Milestones
B. 2005 Rate-of-Progress
C. Contingency for Failure to Achieve Rate-of-Progress by
November 15, 1999, and November 15, 2002
XIII. What are the Impacts on the Title V Program?
XIV. Statutory and Executive Order Reviews

I. What Is the Background for This Proposed Action?

The BPA area is classified as a moderate 1-hour ozone nonattainment
area and, therefore, was required to attain the 1-hour ozone standard
of 0.12 ppm by November 15, 1996. On April 16, 1999, EPA proposed in
the alternative either to reclassify the BPA area to a serious ozone
nonattainment area, or to extend BPA's attainment date if the State
submitted a SIP consistent with the criteria of the Transport Policy.
64 FR 18864. EPA proposed to find that the BPA area did not attain the
1-hour ozone NAAQS by November 15, 1996, as required by the CAA. The
proposed finding was based on 1994-1996 air quality data that showed
the area's air quality violated the standard and the area did not
qualify for an attainment date extension under the provisions of
section 181(a)(5).\1\ EPA also proposed that the appropriate
reclassification of the area would be from moderate to serious.
Although the area was not eligible for an attainment date extension
under CAA section 181(a)(5), the April 16, 1999, proposal included a
notice of the BPA area's eligibility for an attainment date extension,
pursuant to the Transport Policy, which was published in a March 25,
1999, Federal Register notice (64 FR 14441). This policy addressed
circumstances where pollution from upwind areas interferes with the
ability of a downwind area to attain the 1-hour ozone standard by its
attainment date. EPA proposed to finalize its action on the
determination of nonattainment and reclassification of the BPA area
only after the area had received an opportunity to qualify for an
attainment date extension under the Transport Policy.
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\1\ Section 181(a)(5) specifies that a state may request, and
EPA may grant, up to two one-year attainment date extensions. EPA
may grant an extension if: (1) The state has complied with the
requirements and commitments pertaining to the applicable
implementation plan for the area, and (2) the area has measured no
more than one exceedance of the ozone standard at any monitoring
site in the nonattainment area in the year in which attainment is
required.
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The State of Texas submitted a request for an extension of the
attainment date for the BPA area, a transport demonstration, an
attainment demonstration SIP and MVEB, a MCR enforceable commitment,
and RACM analysis. We proposed on December 27, 2000, to approve the
transport demonstration and extend the attainment date without
reclassifying the area, approve the attainment demonstration SIP and
MVEB, approve the MCR commitment, and find that BPA was implementing
all RACM. (65 FR 81786)
On May 15, 2001, EPA issued a final rule (66 FR 26914) in which EPA
approved the transport demonstration and extended the attainment date
for the BPA area to November 15, 2007, while retaining the area's
classification as ``moderate.'' The rule also approved the attainment
demonstration for the BPA area and MVEB, approved the State's
enforceable commitment to perform a mid-course review and submit a SIP
revision by May 1, 2004, found that the area was implementing all RACM,
and took one other non-related action. (66 FR 26914). The attainment
demonstration SIP is addressed in the State of Texas submittals dated
November 12, 1999, and April 25, 2000. Thus, the area would have had
until no later than November 15, 2007, the attainment date for the
upwind Houston-Galveston (HG) nonattainment

[[Page 36758]]

area, to attain the 1-hour ozone standard. The final rule contains
EPA's responses to the comments. (We also took one final action not
relevant to today's proposed action and the Court's remand: the finding
that BPA met the Reasonably Available Control Technology (RACT)
requirements for major sources of Volatile Organic Compounds (VOC)
emissions.)
A petition for review of the May 15, 2001, rulemaking was filed in
the U.S. Court of Appeals for the Fifth Circuit. On December 11, 2002,
the Court issued a decision in Sierra Club v. EPA, 314 F.3d 735 (5th
Cir. 2002), reversing the portion of EPA's approval that extended BPA's
attainment date to 2007 under the Transport Policy without
reclassifying the area.\2\ The Court also remanded to EPA the final
actions related to the reversal: our approval of the attainment
demonstration SIP and MVEB, the MCR commitment, and our finding that
the area was implementing all RACM. The Court affirmed the portion of
EPA's final action that requires implementation only of control
measures that contribute to attainment as expeditiously as practicable
and considers implementation costs in rejecting control measures, but
remanded EPA's specific determination regarding RACM in the BPA area so
that any conclusions about the control measures may be adequately
explained. In response to the reversal, we must withdraw our
determination to extend the attainment deadline for BPA and our
approval of the transport demonstration. In light of the lapse of time
since EPA's prior proposal regarding the determination of nonattainment
and reclassification, EPA is issuing this supplemental proposal that
supersedes the April 16, 1999, proposal. In response to the remand, we
are proposing to withdraw our final action approving the attainment
demonstration SIP and MVEB and the MCR commitment and finding that BPA
is implementing all RACM.
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\2\ Two other United States Circuit Courts of Appeals had
previously issued decisions rejecting transport-based attainment
date extensions that EPA had granted in other areas. Sierra Club v.
EPA, 294 F.3d 155 (D.C. Cir. 2002) and Sierra Club v. EPA, 311 F.3d
853 (7th Cir. 2002). In the wake of these decisions, EPA issued
final rulemakings reclassifying the Washington, DC ozone
nonattainment area, 68 FR 3410 (January 24, 2003), and the St. Louis
ozone nonattainment area. 68 FR 4835 (January 30, 2003). (EPA
subsequently redesignated the St. Louis area to attainment for the
ozone standard 68 FR 25418 and 68 FR 25442 (May 12, 2003).) In
addition, in light of the Fifth Circuit's decision on Beaumont, EPA
recently issued a final rule withdrawing a transport-based
attainment date extension and reclassifying the Baton Rouge ozone
nonattainment area. 68 FR 20077 (April 24, 2003).
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II. What Are the National Ambient Air Quality Standards?

Since the CAA's inception in 1970, EPA has set NAAQS for six common
air pollutants: Carbon monoxide, lead, nitrogen dioxide, ozone,
particulate matter, and sulfur dioxide. The CAA requires that these
standards be set at levels that protect public health and welfare with
an adequate margin of safety. These standards present state and local
governments with the air quality levels they must meet to achieve clean
air. Also, these standards allow the American people to assess whether
or not the air quality in their communities is healthful.

III. What Is the NAAQS for Ozone?

The NAAQS for ozone is expressed in two forms called the 1-hour and
8-hour \3\ standards. Table 1 summarizes the 1-hour ozone standards.
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\3\ The 8-hour ozone standard value is 0.08 ppm and is the
primary and secondary standard. The standard requires that the
average of the annual fourth highest daily maximum 8-hour average
ozone concentration measured at each monitor over any three-year
period, be less than or equal to 0.08 ppm. EPA intends to designate
areas under the 8-hour standard by April 15, 2004.

Table 1. Summary of Ozone Standards
----------------------------------------------------------------------------------------------------------------
Standard Value Type Method of compliance
----------------------------------------------------------------------------------------------------------------
1-hour............. 0.12 ppm............. Primary and Secondary................... Must not be exceeded, on
average, more than one
day per year over any
three-year period at any
monitor within an area.
----------------------------------------------------------------------------------------------------------------

(Primary standards are designed to protect public health and secondary
standards are designed to protect public welfare and the environment.)

The 1-hour ozone standard of 0.12 parts per million (ppm) was
promulgated in 1979. The 1-hour ozone standard continues to apply to
the BPA area, and it is the classification of the BPA area with respect
to the 1-hour ozone standard addressed in this document.

IV. What Is a SIP and How Does It Relate to the NAAQS for Ozone?

Section 110 of the CAA requires states to develop air pollution
regulations and control strategies to ensure that state air quality
meet the NAAQS established by EPA. Each state must submit these
regulations and control strategies to us for approval and incorporation
into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by
addressing air pollution at its point of origin. These SIPs can be
extensive. They may contain state regulations or other enforceable
documents and supporting information such as emission inventories,
monitoring networks, and modeling demonstrations.

V. What Is the Beaumont/Port Arthur Nonattainment Area?

The Beaumont/Port Arthur moderate ozone nonattainment area is
located in Southeast Texas, and consists of Hardin, Jefferson, and
Orange Counties.

VI. What Is the Additional Context for This Proposed Rulemaking?

The Transport Policy provided for an extension of an area's
attainment date if it were adversely affected by transport, without
reclassification of the affected area. Consequently, when we granted
the extension of the attainment date for BPA, we did not take action to
finalize the April 16, 1999, proposed finding that BPA had not attained
the 1-hour ozone standard by November 15, 1996. We therefore did not
reclassify BPA from ``moderate'' to ``serious.'' The Court's ruling
means that BPA's attainment date extension is no longer valid.
Currently the area is classified as ``moderate'' and the State and the
area thus have not yet been subject to the requirements for a
``serious'' area.
The air quality in the BPA area has improved throughout the years.
In the early to mid-1990's, the design value hovered around 0.160 ppm,
to .150 ppm. Since 1998, the area's design value has fluctuated between
0.134 ppm and 0.145 ppm, correlating to ``marginal'' and ``moderate''
classifications. In 2001, only two of the seven monitoring sites showed
exceedences of the NAAQS of 0.124 ppm, while in 2002 only one site
showed any exceedences. BPA came very close to attaining in 2002, when
it experienced exceedances at that one monitoring site, Sabine Pass,
the site most directly impacted by emissions from HG. In fact, the
Sabine Pass

[[Page 36759]]

monitor has seen four of the five highest design values since 1997.
Since 1996, the State has implemented a series of VOC and
NO_X rules in BPA and the entire eastern half of the State.
Texas implemented VOC and NO_X RACT rules in BPA for point
and area sources, and implemented for half of the State (all of the
attainment counties in the eastern half of Texas), NO_X rules
for electric generating facilities, a lower Reid-vapor pressure
gasoline, and Stage I vapor recovery program for gas stations. They
implemented state-wide NO_X rules for water heaters, small
boilers, and process heaters. They entered into enforceable documents
reducing NO_X emissions at two large point sources in East
Texas. In 2000, Texas adopted beyond-RACT NO_X rules in BPA
for point sources with some effective this year and the rest fully
implemented by May 2005. The majority of these state rules focus on
emissions from point and area sources, not from on-road mobile
emissions.
The BPA area's NO_X emissions inventory is composed of
about 55% point sources and about 17% on-road mobile sources (area,
biogenics, and non-road mobile make up the remaining 28%). Its VOC
emissions inventory is composed of about 12% point sources and about 4%
on-road mobile sources (area, biogenics, and non-road mobile make up
the remaining 84%). This composition is unusual since generally, 1-hour
ozone nonattainment areas have NO_X and VOC emissions
inventories composed of much greater percentages of on-road mobile
sources, on the order of two to three times the NO_X
percentage, and on the order of two to six times the VOC percentage.
The inventory composition makes it unlikely that additional on-road
mobile control measures would significantly affect BPA's NO_X
and VOC emissions inventories. Thus, additional on-road mobile controls
would be unlikely to significantly aid in reducing NO_X and
VOC emissions thereby reducing the ozone concentration level in BPA.
This is contrasted to the likelihood that additional point and area
control measures would significantly affect BPA's NO_X and
VOC emissions inventories, thereby more than likely significantly
aiding in reducing NO_X and VOC emissions, and having a
greater impact on reducing the ozone concentration level in BPA.

VII. Why Are We Proposing To Reclassify the BPA Area?

Section 181(b)(2) of the Act requires that we determine, based on
the area's design value (as of the attainment date), whether an ozone
nonattainment area attained the one-hour ozone standard by that date.
If we find that the nonattainment area has failed to attain the one-
hour ozone standard by the applicable attainment date, the area is
reclassified by operation of law to the higher of the next higher
classification for the area, or the classification applicable to the
area's design value as determined at the time of the required Federal
Register notice.
We make attainment determinations for ozone nonattainment areas
using available quality-assured air quality data. For the BPA moderate
ozone nonattainment area, the proposed attainment determination is
based on 1994-1996 air quality data. The data show that for 1994-1996,
four monitoring sites averaged more than one exceedance day per year.
This data calculates to a design value of .157 ppm. Therefore, we
propose to find that the BPA area did not attain the 1-hour ozone NAAQS
by the November 15, 1996, deadline. Additional background for this
proposed finding may be found in the April 16, 1999, proposal (64 FR
18864), the December 27, 2000, proposal (65 FR 81786), and the May 15,
2001, final rule (66 FR 26914). A summary and discussion of the air
quality monitoring data for the BPA area for 1994 through 1996 can be
found in the April 16, 1999, proposal and its TSD.
Section 181(b)(2)(A) of the Act requires that, when we find that an
area failed to attain by the applicable date, the area is reclassified
by operation of law to the higher of: the next higher classification or
the classification applicable to the area's ozone design value at the
time the required notice is published in the Federal Register. The
classification applicable to BPA's ozone design value at the time of
today's notice is ``moderate'' since the area's 2002 calculated design
value, based on quality-assured ozone monitoring data from 2000-2002,
is 0.144 ppm. (We will not have quality-assured monitoring data to
calculate a 2003 design value until the Spring of 2004.) By contrast,
the next higher classification for BPA is ``serious.'' Because
``serious'' is a higher nonattainment classification than ``moderate''
under the statutory scheme, BPA would be reclassified as ``serious,''
for failing to attain the standard by the moderate area applicable
attainment date of November 15, 1996.
If EPA issues a final notice of reclassification of the BPA area to
a ``serious'' classification, EPA must then ascertain the appropriate
attainment date for the area. EPA is proposing in the alternative two
options.
Section 181(a)(1) provides that the date for a ``serious'' area to
attain is set as November 15, 1999, a date that has long since elapsed.
Under Option 1, EPA is proposing to make an additional finding that the
area did not attain the 1-hour ozone standard as of November 15, 1999.
The air quality monitoring data show that for 1997-1999, four
monitoring sites averaged more than one exceedance day per year. This
data calculates to a design value of .134 ppm.
Table 2 lists the number of recorded exceedances of the one-hour
ozone standard at each SLAMS/SPM monitoring site in the BPA area for
the period 1997 through 2002, and each monitor's design value for that
period. A complete listing of the ozone exceedances at each monitor as
well as EPA's calculations of the design values can be found in the
technical support document.

Table 2.--Ozone Exceedances in the Beaumont/Port Arthur Area
[1997 to 2002]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Site Design Value (ppm)
Site Type 1997 1998 1999 2000 2001 2002 -----------------------------------
97-99 98-00 99-01 00-02
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beaumont..................................... SLAMS 3 2 0 1 0 0 0.130 0.121 0.117 0.112
Port Arthur.................................. SLAMS 0 0 0 3 0 0 0.115 0.118 0.118 0.118
West Orange.................................. SLAMS 2 1 0 1 0 0 0.110 0.120 0.118 0.118
Hamshire..................................... SLAMS ..... ..... ..... 2 0 0 ....... 0.131 0.121 0.119
Sabine....................................... SPM 2 4 3 2 1 3 0.134 0.145 0.134 0.144
Mauriceville................................. SPM 2 2 0 0 0 0 0.125 ....... ....... .......
Jefferson Co. Airport........................ SPM 2 1 3 2 1 0 0.132 0.137 0.132 .......
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[[Page 36760]]

--Data unavailable; Data below the NAAQS attainment concentration of
0.125 ppm is not reported for the industry provided SPMs.

Therefore, under Option 1, if we issue a final rulemaking
reclassifying the area to ``serious,'' we are proposing further to find
that the BPA area also did not attain the ozone standard by November
15, 1999, the attainment deadline for ``serious'' areas. If we finalize
this further finding, the BPA area would then be reclassified as
``severe'', with an attainment date of November 15, 2005. Section
181(b)(2) requires the area to be reclassified to the higher of the
next higher classification or the area's design value, except that a
``serious'' area cannot be reclassified to any higher level than
``severe.''
Alternatively, under Option 2, we are proposing to find that the
area should be reclassified to ``serious,'' but recognizing that the
EPA did not reclassify the area as ``serious'' until almost four years
after the time the area would have been obligated to meet the
attainment date for a ``serious'' area. We are therefore proposing in
the alternative that the area should retain the ``serious''
classification. Since the attainment date for serious areas, 1999,
elapsed almost 4 years ago, and BPA was not reclassified in time to
have a prospective opportunity as a serious area to implement
prescribed measures to attain by that date, EPA is therefore proposing
to reclassify the area as ``serious'' with an attainment date of
November 15, 2005. We think it would be appropriate in these
circumstances to retain the serious classification but with a
prospective attainment date, since BPA never had an opportunity to
attain as a serious area. EPA solicits comments upon this proposed
alternative approach.

VIII. What Is the Proposed New Attainment Date for the Beaumont/Port
Arthur Area?

In our April 16, 1999, proposal to reclassify BPA, we took comment
on whether 21 months (or a different time frame) was adequate for a
moderate area to attain the standard where the new attainment date had
not yet lapsed, but where there was less time remaining than the Act
had contemplated. The attainment date proposed for the BPA area under
either Option 1 or 2 is as expeditiously as practicable but no later
than November 15, 2005. That date is approximately 24 months from the
date that a final rule resulting from this proposal is expected to be
published in the Federal Register, which would provide approximately
the same time frame as that proposed in our April 16, 1999, proposal.

IX. What Is the Proposed Date for Submitting a Revised SIP for BPA?

EPA must address the schedule by which Texas is required to submit
the SIP revision if we issue a final finding of failure to attain that
reclassifies the area. Pursuant to section 182(i), EPA can adjust any
applicable deadline (other than the attainment date) as appropriate for
any area reclassified under section 181(b). We propose to have Texas
submit the SIP revision on or before one year after the effective date
of a final action on this notice. We believe the proposed SIP revision
submittal date is reasonable.
Should the area be classified serious, Texas is required to submit
SIP revisions meeting the CAA's pollution control requirements for
serious areas. The measures required by section 182(c) of the CAA
include, the following:
(1) Attainment and reasonable further progress demonstrations;
(2) Clean-fuel vehicle programs;
(3) The major source threshold lowered from 100 to 50 tons per year
for volatile organic compounds (VOCs) and nitrogen oxide compounds
(NO_X);
(4) More stringent new source review requirements;
(5) An enhanced air monitoring program; and
(6) Contingency provisions.
Should the area be classified severe, Texas is required to submit
SIP revisions meeting the CAA's pollution control requirements for
severe areas. The measures required by section 182(c) of the CAA
include all of those listed above for a serious area, and the
following:
(1) Attainment and reasonable further progress demonstrations;
(2) A reformulated gasoline (RFG) program;
(3) The major source threshold lowered from 50 to 25 tons per year
for volatile organic compounds (VOCs) and nitrogen oxide compounds
(NO_X);
(4) More stringent new source review requirements (1.3 to 1);
(5) A Vehicle Miles Traveled (VMT) offset SIP;
(6) Major Stationary Source fee for failure to attain; and
(7) Contingency provisions.
In a separate action, the EPA issued a proposed rule to implement
the 8-hour ozone NAAQS (June 2, 2003, 68 FR 32082). The proposal
contains two discrete frameworks to implement the 8-hour ozone standard
while ensuring a smooth transition from the 1-hour standard to the new
8-hour standard. Option 2 for transitioning from the 1-hour to the 8-
hour NAAQS proposes to retain the 1-hour standard, designations, and
classifications for limited purposes until the area meets the 1 hour
standard. For all remaining purposes, EPA would revoke the 1 hour
standard and associated designations and classifications one year after
the effective date of designations for the 8 hour standard. The notice
also proposes allowing areas with an outstanding obligation to submit a
1-hour ozone attainment demonstration to submit their 8-hour ozone
attainment demonstration in lieu of the 1-hour attainment
demonstration. For more detailed information, please see the Proposed
Rule to Implement the 8-Hour Ozone NAAQS. We are also encouraging
comments on the potential impact of this option on the BPA area and its
SIP obligations if we finalize reclassification.

X. Why Are We Proposing To Withdraw the Attainment Demonstration, MCR
and MVEB approvals and the RACM Finding, and What Are the Potential
Impacts of the Proposed Withdrawals?

We are proposing to withdraw our final approval of BPA's 2007
attainment demonstration and the accompanying Motor Vehicle Emission
Budget (MVEB), the MCR enforceable commitment, and the Reasonably
Available Control Measures (RACM) finding. Having an earlier attainment
date than 2007 requires the submission of a revised attainment
demonstration SIP, a new MVEB, and a re-analysis of the RACM
determination.
To be consistent with the Court's reversal of the 2007 attainment
date extension, and to respond to the remand, we propose to withdraw
our May 15, 2001, approval of the 2007 attainment demonstration and
MVEB, the MCR enforceable commitment, and the finding that the area was
implementing all RACM. They are no longer applicable as they were based
on a 2007 attainment date. A new attainment demonstration with a new
MVEB, and a new RACM analysis, will be required to be submitted for the
BPA area, when we take final reclassification action. Additionally, the
Court affirmed the portion of our May 15, 2001, final action that
treats as potential RACMs only those measures that would advance the
attainment date and considers implementation costs when rejecting
certain control measures in its December 11, 2002, decision. However,
the Court remanded to EPA the analysis and conclusions regarding RACM
in the BPA area. According to the Court's order, the analysis must: (1)
demonstrate an examination of all

[[Page 36761]]

relevant data; and (2) provide a plausible explanation for the
rejection of proposed RACMs including why the measures, individually
and in combination, would not advance the BPA area's attainment date.
Subsequent to the State's submittal, the EPA issued a memorandum
clarifying its position on RACM analyses (memorandum from John S. Seitz
and Margo Oge, December 14, 2000, titled ``Additional Submission on
RACM from States with Severe 1-hour Ozone Nonattainment Area SIPS'').
The memorandum clarifies that it is the State's responsibility to
perform and submit a RACM analysis for EPA use in determining SIP
approval. Even though the State is responsible for developing the new
analysis, EPA will only consider as adequate an RACM analysis by the
State containing the factors outlined in the Court's December 11, 2002,
ruling, when evaluating the use of RACM in the SIP approval process.
The RACM analysis will be due on or before the attainment demonstration
due date.
Withdrawing approval of the MVEB will result in reverting to the
previously approved MVEBs for the purposes of transportation
conformity. This would be the 1996 budget which was for VOCs only and
did not include a NO_X budget. Therefore, there will be no
valid NO_X budget in effect until a new MVEB (for both VOC
and NO_X) is submitted and found adequate. In order for
transportation projects to proceed in the absence of an adequate
NO_X budget, an area must: (1) Pass a ``build/no-build''
emissions test, meaning that projected future regional emissions from
the transportation system after making proposed changes must be lower
than the projected emissions from the existing transportation system;
and (2) demonstrate that the estimated future emissions will not exceed
1990 levels. See 40 CFR 93.119(b).

XI. How Does the Recent Release of MOBILE6 Interact With
Reclassification?

A. What Is the Relationship Between MOBILE6 and the Attainment Year
Motor Vehicle Emissions Budgets?

In addition to the fact that the motor vehicle emissions budgets
contained in the State's November 12, 1999, and April 25, 2000,
submittals are based on the year 2007, which is no longer an allowable
attainment date under the decision in Sierra Club v. EPA, the current
MVEB is not based upon the most recent mobile source emission factors
model, MOBILE6.
The motor vehicle emissions budgets submitted to fulfill the SIP
revision requirements, including those of the attainment demonstration,
must be prepared using the MOBILE6 emissions factor model. The State
should refer to applicable guidance and policy, such as ``Policy
Guidance for the Use of MOBILE6 in SIP Development and Transportation
Conformity'' (memorandum from John S. Seitz and Margo Tsirigotis Oge,
January 18, 2002) in preparing the budgets. The revised SIP must
contain budgets based on MOBILE6 modeling.

B. What Is the Relationship Between MOBILE6 and the Post-1999 Rate-of-
Progress Requirement?

The section 182(c)(2)(B) reasonable further progress requirement
requires volatile organic compounds (VOC) or nitrogen oxides
(NO_X) reductions of 3 percent per year, averaged over a 3-
year period, until the attainment date, for serious and above ozone
nonattainment areas designated and classified under the 1-hour ozone
NAAQS. The EPA refers to these reductions as the rate-of-progress (ROP)
requirement.
The January 18 MOBILE6 policy indicates, among other things, that
the motor vehicle emissions budgets in the post-1999 rate-of-progress
plans will have to be developed using MOBILE6. In this policy we said:

In general, EPA believes that MOBILE6 should be used in SIP
development as expeditiously as possible. The Clean Air Act requires
that SIP inventories and control measures be based on the most
current information and applicable models that are available when a
SIP is developed.\4\
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\4\ See Clean Air Act section 172(c)(3) and 40 CFR 51.112(a)(1).

Texas has not submitted ROP plans other than the original 15% ROP
plan required for the BPA area, since under the Transport Policy the
BPA area was not required to meet the post-1996 ROP requirements. The
post-1996 until the attainment date ROP plans will need to be based
upon MOBILE6.
The post-1996 rate-of-progress requirement flows from section
182(c)(2)(B) which requires serious and above areas to achieve a 3
percent per year reduction in baseline VOC emissions (or some
combination of VOC and NO_X reduction from baseline emissions
pursuant to section 182(c)(2)(C)) averaged over each consecutive three-
year period after November 15, 1996, until the attainment date.\5\
Baseline emissions are the total amount of actual VOC or NO_X
emissions from all anthropogenic sources in the area during the
calendar year 1990, excluding emissions that would be eliminated under
certain Federal programs and Clean Air Act mandates: phase 2 of the
Federal gasoline Reid vapor pressure regulations (Phase 2 RVP)
promulgated on June 5, 1990 (see 55 FR 23666); the Federal motor
vehicle control program in place as of January 1, 1990 (1990 FMVCP);
and certain changes and corrections to motor vehicle inspection and
maintenance (I/M) programs and corrections and reasonably available
control technology (RACT) that were required under section
182(a)(2).\6\ We have issued guidance that provides detailed
information for implementing the rate-of-progress provisions of section
182.\7\ Basically our guidance requires the calculation of a target
level of emissions for each rate-of-progress milestone year. The target
level for any rate-of-progress milestone year is the 1990 baseline
emissions decreased by the amount of baseline emissions that would be
reduced by the 1990 FMVCP, the Phase 2 RVP program, and RACT fix-ups
\8\ by that year and reduced by the amount of the mandated minimum
reductions (15 percent VOC by 1996, and an additional nine (9) percent
VOC, or VOC and NO_X, by 1999, an additional 9 percent VOC,
or VOC and NO_X, by 2002, and an additional VOC, or VOC and
NO_X, by 2005). Under our guidance, the first rate-of-
progress milestone year target levels, for example, the 15 percent VOC
reduction by 1996, starts with the 1990 base year emissions and then
subtracts the effects of the 1990 FMVCP and Phase 2 RVP through 1996
and also subtracts the required 15 percent VOC reduction. The 1999 VOC
target level starts with the 1996 target level and subtracts the
effects between 1996 and 1999 of the 1990 FMVCP and Phase 2 RVP and
subtracts the required 9

[[Page 36762]]

percent post-1996 reduction. For each target level, our guidance
requires the preparation of a 1990 base year inventory ``adjusted'' to
the milestone year (the ``1990 adjusted base year inventory'') to
account for the effects of the 1990 FMVCP and Phase 2 RVP by the
milestone year. The adjusted inventory uses 1990 motor vehicle activity
levels but emission factors computed by MOBILE6 for the applicable
milestone year. For example, preparation of a rate-of-progress plan for
the ROP milestone year of 1999, with NO_X substitution,
requires a 1990 base year inventory for both VOC and NO_X, a
1990 base year VOC inventory adjusted to 1996, and 1990 base year VOC
and NO_X inventories inventory adjusted to 1999. Preparation
of a rate-of-progress plan for 2005 with NO_X substitution
requires a 1990 base year inventory for both VOC and NO_X
plus the following seven ``adjusted'' inventories: 1996 VOC; 1999 VOC
and NO_X; 2002 VOC and NO_X; and 2005 VOC and
NO_X.
---------------------------------------------------------------------------

\5\ As a moderate area, BPA was not required to submit a ROP
plan for a nine (9) percent reduction for the 3-year period November
15, 1996, through November 15, 1999. However, as a serious or severe
area the BPA area is required to submit a ROP plan through November
15, 2005, the new attainment date.
\6\ These requirements under section 182(a)(2) are known I/M and
RACT corrections or I/M and RACT ``fix-ups.'' For further
explanation of these see 57 FR at 13503-13504, April 16, 1992.
\7\ This includes: Guidance on the Post-1996 Rate-of-Progress
Plan (RPP) and Attainment Demonstration, EPA-452/R-93-015 (Corrected
version of February 18, 1994). An electronic copy may be found on
EPA's Web site at http://www.epa.gov/ttn/oarpg/t1pgm.html (file
name: ``post96--2.zip'').
\8\ The BPA area has no I/M program and so has no I/M fix-ups to
consider. A vehicle I/M program would normally be listed as a
requirement for a moderate ozone nonattainment area. However, the
Federal I/M Flexibility Amendments of 1995 determined that urbanized
areas with populations less than 200,000 for 1990 (such as Beaumont/
Port Arthur) are not mandated to participate in the I/M program (60
FR 48033, September 18, 1995).
---------------------------------------------------------------------------

One consequence of the need to use MOBILE6 emission factors in the
post-1996 rate-of-progress plans is that the area must recompute the
1990 baseline emissions using the MOBILE6 emissions factor model to
update the 1990 on-road mobile sources portion of the 1990 base year
emission inventory. The area must also calculate post-1996 rate-of-
progress target levels by re-iterating the target levels for rate-of-
progress requirements for the 1996 milestone year.
In addition to vehicle emissions budgets for any applicable
milestone year, the post-1996 rate-of-progress requirement will also
require the development of a revision to the 1990 base year emissions
inventories and development of up to seven 1990 adjusted inventories
(VOC for 1996, VOC and NO_X for 1999, VOC and NO_X
for 2002, plus VOC and NO_X for 2005).

XII. What Will Be the Rate-of-Progress and Contingency Measure
Schedules?

A. Rate-of-Progress Milestones

Section 182(c)(2)(B) requires serious and above areas to achieve a
3 percent per year reduction in baseline VOC emissions (or some
combination of VOC and NO_X reductions from baseline
emissions pursuant to section 182(c)(2)(C)) averaged over each
consecutive three-year period after November 15, 1996, until the
attainment date. Under the proposed new attainment date, attainment
must be achieved as expeditiously as practicable but no later than
November 15, 2005.
Under the proposed schedule for submittal of the new SIP, the rate-
of-progress plans for the 1999 and 2002 milestone years will be due
well after the November 15, 1999, and November 15, 2002, milestone
dates. If sufficient actual reductions occurring by the November 15,
1999, and November 15, 2002, milestone dates do not now exist, then
Texas can only get reductions after the two milestone dates because, at
this point, the State does not have the ability to require additional
reductions for a period that has already passed. The passing of the
deadlines does not relieve Texas from the requirement to achieve the 18
percent reduction in emissions, but simply means that the 18 percent
reduction must be achieved as expeditiously as practicable but no later
than November 15, 2005.
The approved SIP for the BPA area contains measures that generate
additional benefits after November 15, 1996. Such measures include
beyond-RACT reduction requirements on large sources of NO_X.
As discussed elsewhere in this document in the section titled
``What is the Relationship Between MOBILE6 and the Post-1999 Rate-of-
Progress,'' the CAA specifies the emissions ``baseline'' from which
each emission reduction milestone is calculated. Section 182(c)(2)(B)
states that the reductions must be achieved ``from the baseline
emissions described in subsection (b)(1)(B).'' This baseline value is
termed the 1990 adjusted base year inventory. Section 182(b)(1)(B)
defines baseline emissions (for purposes of calculating each milestone
VOC/NO_X emission reduction) as ``the total amount of actual
VOC or NO_X emissions from all anthropogenic sources in the
area during the calendar year of enactment'' and excludes from the
baseline the emissions that would be eliminated by certain specified
Federal programs and certain changes to state I/M and RACT rules.\9\
The 1990 adjusted base year inventory must be recalculated relative to
each milestone and attainment date because the emission reductions
associated with the FMVCP increase each year due to fleet turnover.\10\
---------------------------------------------------------------------------

\9\ These are the 1990 FMVCP, Phase 2 RVP, and the I/M and RACT
fix-ups.
\10\ See U.S. EPA, (1994), Guidance on the Post-1996 Rate-of-
Progress Plan (RPP) and Attainment Demonstration, EPA-452/R-93-015
(Corrected version of February 18, 1994). An electronic copy may be
found on EPA's Web site at http://www.epa.gov/ttn/oarpg/t1pgm.html
(file name: ``post96--2.zip'').
---------------------------------------------------------------------------

Therefore, since there are federal and state rules requiring
reductions after November 15, 1996, EPA concludes that the BPA area has
already implemented measures creditable towards the 1999 and 2002 rate-
of-progress milestones. However, we are not able to conclude that the
area has sufficient measures to achieve the required 9 percent
reduction by November 15, 1999, and an additional 9 percent reduction
by November 15, 2002, in the absence of the rate-of-progress plans for
both the 1999 and 2002 milestone years that document the calculations
of the 1999 and 2002 target levels of emissions and how the SIP
accounts for expected growth in emissions related activities, and
contain the requisite demonstration that sufficient creditable
reductions have or were projected to occur by November 15, 1999, and
November 15, 2002, respectively. We have insufficient data concerning
what the levels of reductions will be in the area by 1999 and 2002,
since we do not know what the 1990 adjusted base year inventory for
1996, 1999, and 2002 will be or the projected emissions growth for the
periods of November 15, 1996, through November 15, 1999, and November
15, 1999, through November 15, 2002. Nor do we have sufficient
information to allow us to determine what date will be as expeditiously
as practicable for this post-1996 18 percent rate-of-progress
requirement.
EPA proposes that the 1999 and 2002 rate-of-progress requirements
be that Texas submit a rate-of-progress plan that demonstrates that the
SIP has sufficient measures to make the required 18 percent reductions
by a date as expeditiously as practicable.\11\ Texas must identify
sufficient data and show why they meet the ``as expeditiously as
practicable'' requirement. Such SIP revision will have to demonstrate
that any date after November 15, 1999, by which the 1999 9 percent ROP
reduction is achieved, as well as any date after November 15, 2002, by
which the first post-1999 9 percent ROP reduction is achieved, is as
expeditiously as practicable.
---------------------------------------------------------------------------

\11\ EPA believes that such date cannot be any later than
November 15, 2005.
---------------------------------------------------------------------------

B. 2005 Rate-of-Progress

EPA is not proposing any change to the date by which the second 9
percent increment of post-1999 rate-of-progress must be achieved. If
the currently adopted and approved SIP measures and the current suite
of Federal measures will not achieve the required rate-of-progress
reductions, we believe the State has sufficient time to adopt and
implement measures to achieve the required reductions in the BPA area
by November 15, 2005.

[[Page 36763]]

C. Contingency for Failure To Achieve Rate-of-Progress by November 15,
1999 and November 15, 2002

The contingency measures plan must identify specific measures to be
undertaken if the area fails to meet any applicable milestone, to make
rate-of-progress, or to attain the NAAQS. With respect to the November
15, 1999, and November 15, 2002, milestones, EPA believes that the
contingency plan will need to account for any adjustment to the
milestone dates.
We also note that the presently-approved 1996 ROP/attainment
contingency plan is automatically invoked if we take final action
determining the BPA has failed to attain the standard. (See 63 FR 6659
for the contingency measures.) Therefore, the State will be required to
``backfill'' these contingency measures. Since the BPA area did not
attain by the moderate area attainment date, and in order to fulfill
the contingency measures requirements of sections 172(c)(9) and
182(c)(9) of the CAA, it is proposed that the implementation of the
failure-to-attain contingency measures in the current SIP will be
triggered automatically upon the effective date that this proposed rule
is finalized. Further, Texas will be required to submit a revision to
the SIP containing additional contingency measures for its serious, or
if appropriate, severe, area SIP to meet ROP requirements and backfill
for failure to attain. See 57 FR 13498, 13511 (1992).

XIII. What Are the Impacts on the Title V Program?

Upon reclassification to serious or severe, the major stationary
source threshold will be lowered. Consequently, the State's Title V
operating permits program regulations need to cover existing sources
that will become subject to the appropriate lower major stationary
source threshold. Any newly major stationary sources must submit a
timely Title V permit application. ``A timely application for a source
applying for a part 70 permit for the first time is one that is
submitted within 12 months after the source becomes subject to the
permit program or on or before such earlier date as the permitting
authority may establish.'' See 40 CFR 70.5(a)(1). The 12 month (or
earlier date set by the applicable permitting authority) time period to
submit a timely application will commence on the effective date of any
reclassification action.

XIV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any
additional enforceable duty beyond that required by state law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (59 FR 22951, November 9, 2000). This action also does not
have Federalism implications because it does not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action
merely proposes to approve a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This
proposed rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks''
(62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does
not impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.

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

Dated: June 9, 2003.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. 03-15521 Filed 6-18-03; 8:45 am]
BILLING CODE 6560-50-P

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Determination of Nonattainment as of November 15, 1996, and November 15, 1999, and Reclassification of the Beaumont/Port Arthur Ozone Nonattainment Area; State of Texas; Supplemental Proposed Rule

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