
[Federal Register Volume 77, Number 21 (Wednesday, February 1, 2012)]
[Proposed Rules]
[Pages 4937-4940]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2199]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2011-0775; FRL-9625-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Determination of Failure to Attain the One-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to determine that the Houston/Galveston/
Brazoria (HGB) area did not attain the one-hour ozone national ambient 
air quality standard (NAAQS) by its applicable attainment date, 
November 15, 2007. This determination is based on three years of 
complete, quality-assured and certified ambient air quality monitoring 
data for the period preceding the applicable attainment deadline.

DATES: Written comments must be received on or before March 2, 2012.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2011-0775, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     EPA Region 6 Contact Us Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select ``Air'' 
before submitting comments.
     Email: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please 
also send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2011-0775. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a 15 cent per page 
fee for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Kenneth W. Boyce, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7259; fax number 
214-665-7263; email address boyce.kenneth@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'' 
``us'' or ``our'' is used, we mean the EPA

Table of Contents

I. What action is EPA taking?
II. Background
III. What is EPA's analysis?
IV. What is the effect of the proposed determination?
V. Statutory and Executive Order Reviews

I. What actions is EPA taking?

    The EPA is proposing to determine that, under the Clean Air Act 
(CAA or ``Act''), the HGB area failed to attain the NAAQS for one-hour 
ozone by its applicable one-hour NAAQS attainment date of November 15, 
2007.

II. Background

Regulatory Context

    The Act requires us to establish NAAQS for certain widespread 
pollutants that cause or contribute to air pollution that is reasonably 
anticipated to endanger public health or welfare (sections 108 and 109 
of the Act). In 1979, we promulgated the revised one-hour ozone 
standard of 0.12 parts per million (ppm) (44 FR 8202, February 8, 
1979).\1\
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    \1\ For ease of communication, many reports of ozone 
concentrations are given in parts per billion (ppb); ppb = ppm x 
1000. Thus, 0.12 ppm becomes 120 ppb (or between 120 to 124 ppb, 
when rounding is considered).
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    An area is considered to have attained the one-hour ozone standard 
if there are no violations of the standard, as determined in accordance 
with the regulation codified at 40 CFR section 50.9, based on three 
consecutive calendar years of complete, quality-assured and certified 
monitoring data. A

[[Page 4938]]

violation occurs when the ambient ozone air quality monitoring data 
show greater than one (1.0) ``expected number'' of exceedances per year 
at any site in the area, when averaged over three consecutive calendar 
years.\2\ An exceedance occurs when the maximum hourly ozone 
concentration during any day exceeds 0.124 ppm. For more information, 
please see ``National 1-hour primary and secondary ambient air quality 
standards for ozone'' (40 CFR 50.9) and ``Interpretation of the 1-Hour 
Primary and Secondary National Ambient Air Quality Standards for 
Ozone'' (40 CFR part 50, appendix H).
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    \2\ An ``expected number'' of exceedances is a statistical term 
that refers to an arithmetic average. An ``expected number'' of 
exceedances may be equivalent to the number of observed exceedances 
plus an increment that accounts for incomplete sampling. See 40 CFR 
part 50, appendix H. Because, in this context, the term 
``exceedances'' refers to days (during which the daily maximum 
hourly ozone concentration exceeded 0.124 ppm), the maximum possible 
number of exceedances in a given year is 365 (or 366 in a leap 
year).
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    The Act, as amended in 1990, required EPA to designate as 
nonattainment any area that was violating the one-hour ozone standard, 
generally based on air quality monitoring data from the 1987 through 
1989 period (section 107(d)(4) of the Act; 56 FR 56694, November 6, 
1991). The Act further classified these areas, based on the severity of 
their nonattainment problem, as Marginal, Moderate, Serious, Severe, or 
Extreme.
    The control requirements and date by which attainment of the one-
hour ozone standard was to be achieved varied with an area's 
classification. Marginal areas were subject to the fewest mandated 
control requirements and had the earliest attainment date, November 15, 
1993, while Severe and Extreme areas were subject to more stringent 
planning requirements and were provided more time to attain the 
standard. Two measures that are triggered if a Severe or Extreme area 
fails to attain the standard by the applicable attainment date are 
contingency measures [section 172(c)(9)] and a major stationary source 
fee provision [sections 182(d)(3) and 185)] (``major source fee 
program'' or ``section 185 fee program'').

Designations and Classifications

    The HGB area consists of Brazoria, Chambers, Fort Bend, Galveston, 
Harris, Liberty, Montgomery and Waller counties in Texas. Upon the date 
of enactment of the 1990 CAA Amendments, the HGB area was classified as 
a severe ozone nonattainment area for the one-hour ozone NAAQS. As 
noted above, severe and extreme areas are subject to more stringent 
planning requirements but were provided more time to attain the ozone 
standard. HGB one-hour ozone nonattainment area was classified as 
severe 17. As a result the attainment date for the HGB area was 
November 15, 2007. \3\
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    \3\ 56 FR 56694, November 6, 1991 and CAA section 181(a)(1).
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    On January 13, 2011, the Sierra Club filed a complaint in the U.S. 
District Court for the District of Columbia alleging EPA failed in its 
mandatory duties to make a determination of attainment by the 
applicable attainment date for certain one hour ozone nonattainment 
areas. The Houston/Galveston/Brazoria was one of the nonattainment 
areas listed in Sierra Club's complaint. On September 12, 2011, EPA 
signed a Settlement Agreement with the Sierra Club which, in relevant 
part to this rulemaking, committed EPA by January 31, 2012 to sign a 
proposed notice to be published in the Federal Register as to whether 
Houston/Galveston/Brazoria has attained the 1 hour ozone standard by 
its attainment date and by May 31, 2012, to sign a final notice to be 
published in the Federal Register determining whether Houston/
Galveston/Brazoria has attained the 1 hour ozone standard by its 
attainment date.

Transition From One-Hour Ozone Standard to Eight-Hour Ozone Standard

    In 1997, EPA promulgated a new, more protective standard for ozone 
based on an eight-hour average concentration (the 1997 eight-hour ozone 
standard). In 2004, EPA published the 1997 eight-hour ozone 
designations and classifications and a rule governing certain facets of 
implementation of the eight-hour ozone standard (Phase 1 Rule) (69 FR 
23858 and 69 FR 23951, respectively, April 30, 2004).
    Although EPA revoked the one-hour ozone standard (effective June 
15, 2005), to comply with anti-backsliding requirements of the Act, 
eight-hour ozone nonattainment areas remain subject to certain 
requirements based on their one-hour ozone classification. Initially, 
in our rules to address the transition from the one-hour to the eight-
hour ozone standard, EPA did not include contingency measures or the 
section 185 fee program among the measures retained as one-hour ozone 
anti-backsliding requirements.\4\ However, on December 23, 2006, the 
United States Court of Appeals for the District of Columbia Circuit 
determined that EPA should not have excluded these requirements from 
its anti-backsliding requirements. South Coast Air Quality Management 
District v. EPA, 472 F.3d 882 (DC Cir. 2006) reh'g denied 489 F.3d 1245 
(clarifying that the vacatur was limited to the issues on which the 
court granted the petitions for review).
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    \4\ Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 1, 69 FR 23951 (April 30, 2004).
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    Thus, the Court vacated the provisions that excluded these 
requirements. As a result, States must continue to meet the obligations 
for one-hour ozone NAAQS contingency measures and, for Severe and 
Extreme areas, major source fee programs. EPA has issued a proposed 
rule that would remove the vacated provisions of 40 CFR 51.905(e), and 
that addresses contingency measures for failure to attain or make 
reasonable further progress toward attainment of the one-hour standard. 
See 74 FR 2936, January 16, 2009 (proposed rule); 74 FR 7027, February 
12, 2009 (notice of public hearing and extension of comment period).

Rationale for Today's Proposed Action

    After revocation of the one-hour ozone standard, EPA must continue 
to provide a mechanism to give effect to the one-hour anti-backsliding 
requirements. See SCAQMD v. EPA, 47 F.3d 882, at 903. In keeping with 
this responsibility with respect to one-hour anti-backsliding 
contingency measures and section 185 fee programs for the HGB area, EPA 
proposes to determine that the area failed to attain the one-hour ozone 
standard by its applicable attainment date. See CAA section 301(a) and 
the relevant portion of section 181(b)(2).

III. What is EPA's analysis?

    A determination of whether an area's air quality meets the one-hour 
ozone standard is generally based upon three years of complete \5\, 
quality-assured and certified air quality monitoring data gathered at 
established State and Local Air Monitoring Stations (``SLAMS'') in the 
nonattainment area and entered into the EPA's Air Quality System (AQS) 
database. Data from air monitors operated by state/local agencies in 
compliance with EPA monitoring requirements must be submitted to the 
AQS database. Monitoring agencies annually certify that these data are

[[Page 4939]]

accurate to the best of their knowledge. Accordingly, EPA relies 
primarily on data in its AQS database when determining the attainment 
status of an area. See 40 CFR section 50.9; 40 CFR part 50, appendix H; 
40 CFR part 53; 40 CFR part 58, appendices A, C, D and E. All data are 
reviewed to determine the area's air quality status in accordance with 
40 CFR part 50, appendix H.
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    \5\ Generally, a ``complete'' data set for determining 
attainment of the ozone is one that includes three years of data 
with an average percent of days with valid monitoring data greater 
than 90% with no single year less than 75%. See 40 CFR part 50, 
appendix I. There are less stringent data requirements for showing 
that a monitor has failed an attainment test and thus has recorded a 
violation of the standard.
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    Under EPA regulations at 40 CFR section 50.9, the one-hour ozone 
standard is attained at a monitoring site when the expected number of 
days per calendar year with maximum hourly average concentrations above 
0.12 parts per million (235 micrograms per cubic meter) is equal to or 
less than 1, as determined by 40 CFR part 50, appendix H.\6\ EPA 
proposes to determine that the HGB area failed to attain the one-hour 
ozone standard by its applicable attainment date; that is, the number 
of expected exceedances at sites in the nonattainment area was greater 
than one per year in the period prior to the applicable attainment 
date. This proposed determination is based on three years of complete, 
quality-assured and certified ambient air quality monitoring data in 
AQS for the 2005-2007 monitoring period for the HGB area.
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    \6\ The average number of expected exceedances is determined by 
averaging the expected exceedances of the one-hour ozone standard 
over a consecutive three calendar year period. See 40 CFR part 50 
appendix H.
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    Table 1 summarizes the ozone monitoring data from the various 
monitoring sites in the HGB area by showing the expected exceedances 
per year and 3-year expected exceedances averages over the 2005-2007 
period. The data summarized in Table 1 below are considered complete 
for the purpose of determining if the standard is met. Review of the 
data in Table 1 shows that the average number of expected exceedances 
for the 2005-2007 period is greater than one for 12 of the ozone 
monitoring sites in the HGB area. Furthermore, the NW Harris County 
site had more than one expected exceedance in the attainment year, 
2007, so the area could not qualify for a 1 year extension to the 
attainment date.

                                       Table 1--One-Hour Ozone Data for the HGB One-Hour Ozone Nonattainment Area
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                                                                                              Expected exceedances by year                  Expected
                          Site name                                  AQS ID      ------------------------------------------------------  exceedances  3-
                                                                                        2005              2006              2007           yr average
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Brazoria County..............................................  .................  ................  ................  ................  ................
Manvel.......................................................          480391004               2.1                 3               1.1               2.1
Lake Jackson.................................................          480391016                 0                 0                 0               0.0
Galveston County.............................................  .................  ................  ................  ................  ................
Galveston County Airport.....................................     481670014/1034                 0                 0                 0               0.0
Harris County................................................  .................  ................  ................  ................  ................
Aldine.......................................................          482010024               2.1                 0                 0               0.7
Channelview..................................................          482010026                 2                 2                 1               1.7
NW Harris County.............................................          482010029               2.1                 2                 2               2.0
Wayside......................................................          482010046                 0                 0                 0               0.0
Lang.........................................................          482010047                 0                 0                 0               0.0
Croquet......................................................          482010051               4.1                 1                 0               1.7
Bayland Park.................................................          482010055               6.1               5.1                 0               3.7
Monroe.......................................................          482010062               5.1                 3                 0               2.7
Westhollow...................................................          482010066                 1                 4                 1               2.0
Regional Office..............................................          482010070                 3                 2                 0               1.7
Texas Avenue.................................................          482010075                 0               1.1                 1               0.7
Park Place...................................................          482010416                NA               8.2                 0             * 4.1
Lynchburg....................................................          482011015               6.2                 1                 0               2.4
Mae Drive....................................................          482011034                 0               2.1                 0               0.7
Clinton Drive................................................          482011035                 1                 0                 0               0.3
Deer Park....................................................          482011039               3.1               4.1                 0               2.4
Seabrook.....................................................          482011050               3.1                 2                 1               2.0
Montgomery County............................................  .................  ................  ................  ................  ................
Conroe.......................................................          483390078                 1                 2                 0               1.0
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Source: AQS Quicklook Report, September 26, 2011.
* Two-year average 2006-2007.

IV. What is the effect of the proposed determination?

    After revocation of the one-hour ozone standard, EPA must continue 
to provide a mechanism to give effect to the one-hour anti-backsliding 
requirements. See SCAQMD v. EPA, 47 F.3d 882, at 903. In keeping with 
this responsibility with respect to one-hour anti-backlsiding 
contingency measures and section 185 fee programs for the HGB one hour 
ozone area, EPA proposes to determine that the HGB area failed to 
attain the one-hour ozone standard by its applicable attainment date. 
Consistent with 40 CFR 51.905(e)(2) and the South Coast court decision, 
upon revocation of the one-hour ozone NAAQS for an area, EPA is no 
longer obligated to determine whether an area has attained the one-hour 
NAAQS by its applicable deadline, except insofar as it relates to 
effectuating the anti-backsliding requirements that are specifically 
retained. EPA's proposed determination here--that the area did not 
attain the one-hour ozone standard by the November 15, 2007 deadline 
(based on data for 2005-2007) is made pursuant to section (301)(a) and 
the relevant portion of section 181(b)(2), and is linked solely to two 
required one-hour anti-backsliding measures: i.e., one-hour contingency 
measures for failure to attain under section 172(c)(9), and fee 
programs under sections 182(d)(3) and 185. A final determination of 
failure to attain by the area's 2007 attainment date will not result in 
reclassification of the area under the revoked one-hour standard. As a 
severe one-hour nonattainment area, the HGB area is not subject to 
reclassification for the one-hour standard, and in any event

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EPA is no longer required to reclassify any area to a higher 
classification for the one-hour ozone NAAQS based upon a determination 
that the area failed to attain that NAAQS by its attainment date. 40 
CFR 51.905(e)(2)(i)(B).
    The EPA's proposed determination that the area failed to attain the 
one-hour ozone standard by its applicable date, if finalized, would 
bear on the area's obligations with respect to two one-hour ozone anti-
backsliding requirements whose implementation is triggered by a finding 
of failure to attain by the applicable attainment date: section 
172(c)(9) contingency measures for failure to attain, and sections 
182(d)(3) and 185 major stationary source fee programs.
    With respect to the one-hour ozone anti-backsliding requirement for 
contingency measures, the Texas SIP included contingency measures to 
achieve an additional 3 percent reduction in NOX and VOC 
emissions in 2008. The contingency measure reductions for 2008 were to 
be obtained from on-road and off-road mobile control measures already 
being implemented. EPA has previously approved the State's one-hour 
ozone attainment demonstration and Rate of Progress plans for the HGB 
area which included contingency measures. See: 71 FR 52670, 70 FR 7407, 
66 FR 57195, and 66 FR 20750. Thus, the reductions from contingency 
measures have already been achieved and therefore a final determination 
of failure to attain by the area's one-hour ozone attainment date would 
not trigger additional emissions reductions.
    With respect to the one-hour ozone anti-backsliding requirement for 
penalty fees, section 182(d)(3) requires SIPs to include provisions 
required by section 185. Section 185 requires one-hour ozone SIPs for 
severe areas to provide a program requiring each major stationary 
source of ozone precursors located in the area to pay fees to the State 
if the area has failed to attain by the attainment date. A final 
determination of failure to attain by the area's one-hour attainment 
date would trigger the one-hour anti-backsliding obligation to 
implement the penalty fee program under section 182(d)(3) and 185, 
unless that obligation is terminated.

V. Statutory and Executive Order Reviews

    This action proposes to make a determination that this area did not 
attain the one-hour ozone standard based on air quality, and does not 
impose any requirements beyond those required by statute or regulation. 
For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not a economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to the requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address disproportionate human health or environmental effects with 
practical, appropriate, and legally permissible methods under Executive 
Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because it would not apply in Indian country located in the state, and 
EPA notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Oxides of nitrogen, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: January 24, 2012.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2012-2199 Filed 1-31-12; 8:45 am]
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