[Federal Register Volume 88, Number 78 (Monday, April 24, 2023)]
[Rules and Regulations]
[Pages 24693-24699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08436]



[[Page 24693]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2020-0161; FRL-10428-02-R6]


Air Plan Approval; Texas; Reasonable Further Progress Plan for 
the Dallas-Fort Worth Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving revisions to the 
State Implementation Plan (SIP) for Texas as proposed on October 9, 
2020, and supplemented on December 20, 2022. The revisions were 
submitted by Texas on May 13, 2020, to meet the Reasonable Further 
Progress (RFP) requirements for the Dallas-Fort Worth Serious ozone 
nonattainment area (DFW area) for the 2008 ozone National Ambient Air 
Quality Standard (NAAQS). Specifically, EPA is approving the RFP 
demonstration and associated Motor Vehicle Emission Budgets (budgets). 
EPA is also notifying the public that EPA finds these RFP budgets for 
the DFW area adequate for the purpose of transportation conformity. As 
a result of such finding, the DFW area must use the budgets from the 
submitted DFW RFP SIP for future conformity determinations. The EPA is 
not finalizing a previous proposed approval of revisions to the SIP 
that address RFP contingency measure requirements for the DFW area in 
this action and that will be addressed in a separate action.

DATES: This rule is effective on May 24, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID EPA-R06-OAR-2020-0161. All documents in the docket are listed 
on the https://www.regulations.gov 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 https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Paige, EPA Region 6 Office, 
Infrastructure and Ozone Section, 214-665-6521, [email protected]. 
Out of an abundance of caution for members of the public and our staff, 
the EPA Region 6 office may be closed to the public to reduce the risk 
of transmitting COVID-19. Please call or email the contact listed above 
if you need alternative access to material indexed but not provided in 
the docket.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our 
October 9, 2020, proposal and December 20, 2022, supplemental proposal 
(85 FR 64084 and 87 FR 77770, respectively).\1\ In the October 2020 
document, we proposed to approve a portion of the May 13, 2020, Texas 
SIP revision addressing RFP requirements for the 2008 8-hour ozone 
NAAQS for the two Serious ozone nonattainment areas in Texas (``the 
Texas RFP submittal''). These two areas are the DFW and the Houston-
Galveston-Brazoria (HGB) areas. The Texas RFP submittal also 
establishes budgets for the year 2020 and includes contingency measures 
for each of the DFW and HGB areas, should the areas fail to make 
reasonable further progress or fail to attain the NAAQS by the 
applicable attainment date. Our October 2020 proposal addressed only 
that portion of the Texas RFP submittal that refers to the DFW area. 
The portion of the Texas RFP submittal that refers to the HGB area was 
addressed in a separate rulemaking action.\2\
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    \1\ Henceforth we refer to these proposals as ``the October 2020 
document'' or ``the October 2020 proposal'' and ``the December 2022 
action'' or ``the December 2022 supplemental proposal.'' These 
proposals and our Technical Support Document (TSD) are provided in 
the docket for this action.
    \2\ Our final action to approve the RFP plan for the HGB area 
was published on May 10, 2021 (86 FR 24717).
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    Our October 2020 proposal also provided information on ozone 
formation, the ozone standards, area designations, related SIP revision 
requirements under the CAA, and the EPA's implementing regulations for 
the 2008 ozone NAAQS, referred to as the 2008 Ozone SIP Requirements 
Rule (``2008 Ozone SRR'').\3\ The DFW area, comprising Collin, Dallas, 
Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise 
counties was classified as Serious nonattainment for the 2008 ozone 
NAAQS and as such was subject to the Serious area requirements, one of 
which was to demonstrate RFP in reducing volatile organic compounds 
(VOC).\4\ In demonstrating RFP, emission reductions of nitrogen oxides 
(NOX) may be substituted for VOC reductions, if certain 
criteria are met.\5\ As explained in our October 2022 proposal and TSD, 
because the State has already satisfied the 15 percent VOC emissions 
reduction requirement for the DFW area, all 10 counties in the DFW 
nonattainment area may substitute NOX reductions for VOC, 
consistent with the 2008 Ozone SRR (see 80 FR 12264, 12271), 40 CFR 
51.1110, and EPA's NOX Substitution Guidance.
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    \3\ See 80 FR 12264 (March 6, 2015).
    \4\ Our final determination that the DFW Serious nonattainment 
area failed to attain the 2008 ozone NAAQS by the area's attainment 
date is outside the scope of this action (87 FR 60926, October 7, 
2022).
    \5\ See 80 FR 12264, 12271 for an explanation of criteria. 
NOX and VOC are precursors to ozone formation.
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    The comment period on our October 2020 proposal closed on November 
9, 2020. We received relevant supportive and adverse comments on our 
proposal from the North Central Texas Council of Governments (NCTCOG) 
and Air Law for All (ALFA) on behalf of the Center for Biological 
Diversity and the Sierra Club.\6\ One commenter supported the proposed 
action and concurred with the on-road mobile source emission 
inventories and budgets for 2020. One commenter stated that our 
proposal did not address how the substitution of NOX 
emission reductions for VOC emission reductions in the DFW RFP plan is 
consistent with the CAA. Based on those comments, we published a 
supplemental proposal to address the NOX substitution issue 
raised. Our December 2022 supplemental proposal provided an overview of 
ozone chemistry and NOX substitution effects, discussed 
ozone chemistry in the DFW area, and described how Texas's use of 
NOX substitution is warranted and appropriately implemented. 
Our December 2022 action also proposed to approve the NOX 
substitution provided in the Texas RFP submittal for the DFW area.
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    \6\ Henceforth, we refer to the NCTCOG and ALFA as ``the 
commenter(s)''. These comments are provided in the docket at https://www.regulations.gov under docket ID: EPA-R06-OAR-2020-0161.
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    The comment period on our December 2022 supplemental proposal 
closed on January 19, 2023. We received one comment from an anonymous 
source that addresses the fossil fuel industry. However, such comments 
do not raise NOX substitution in the DFW area, which is the 
subject of the December 2022 supplemental proposal and thus, are beyond 
the scope of the action and do not require a response below.\7\
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    \7\ All comments received on this action are provided in the 
docket at https://www.regulations.gov under docket ID: EPA-R06-OAR-
2020-0161.

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[[Page 24694]]

    Our responses to comments received on the October 2020 proposal 
follow.

II. Response to Comments

    Comment: The commenter states that emissions reductions from Texas 
sources would assist in mitigating the public health impacts caused by 
ozone in the DFW area. The commenter describes the health effects of 
exposure to ozone, including the effects on children and disadvantaged 
communities in the DFW area. The commenter mentions that reducing ozone 
levels below the 2008 ozone NAAQS of 75 parts per billion (ppb) would 
have large and immediate health benefits in Texas. The commenter 
includes numerous health studies in support of these statements.
    Response: The EPA appreciates the commenter's views and studies 
submitted regarding exposure to ground level ozone. This action 
addresses certain requirements for the DFW area under the 2008 ozone 
NAAQS; however, a more stringent ozone standard of 70 ppb was 
promulgated in 2015.\8\ Because the DFW area is also designated as 
nonattainment for the 2015 ozone NAAQS, the Texas Commission on 
Environmental Quality (TCEQ or State) is working on additional measures 
to assist the DFW nonattainment area in attaining the 2015 ozone 
NAAQS.\9\
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    \8\ See 80 FR 65292 (October 26, 2015).
    \9\ See 87 FR 60897 (October 7, 2022).
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    Comment: Citing specific statutory provisions and excerpts from the 
EPA's implementation rules for the 1997 and 2008 ozone NAAQS, the 
commenter asserts that the RFP demonstration for the DFW Serious area 
must meet both the general RFP requirements in CAA section 172(c)(2) 
that are tied to attainment of the ozone standards and the specific RFP 
requirements in CAA section 182(c)(2)(B) for reductions in emissions of 
VOCs from baseline emissions. The commenter contends that the RFP 
``targets'' cannot be severed from the attainment demonstration and 
control strategy and independently approved. The commenter asserts that 
because the EPA has not proposed to approve the attainment 
demonstration and control strategy for the DFW area, there is no basis 
to propose that the RFP demonstration for the DFW area meets the 
general RFP requirements in CAA section 172(c)(2).\10\
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    \10\ The RFP targets are also referred to as milestones.
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    Response: We disagree with the commenter's assertion that the RFP 
demonstration does not satisfy RFP requirements because it does not 
ensure attainment, which is inconsistent with the EPA's existing 
interpretation of RFP requirements established in implementing 
regulations for the 2008 ozone NAAQS. As the commenter notes, Serious 
ozone nonattainment areas are subject to the general requirements for 
nonattainment plans in CAA subpart 1 and the specific requirements for 
ozone areas in CAA subpart 2, including the requirements related to RFP 
and attainment. This is consistent with the structure of the CAA as 
modified under the 1990 amendments, which introduced additional 
subparts to part D of title I of the CAA to address requirements for 
specific NAAQS pollutants, including ozone (subpart 2), carbon monoxide 
(subpart 3), particulate matter (subpart 4), and sulfur oxides, 
nitrogen dioxide, and lead (subpart 5).
    These subparts apply tailored requirements for these pollutants, 
including those based on an area's designation and classification, in 
addition to and often in place of the generally applicable provisions 
retained in subpart 1. While CAA section 172(c)(2) of subpart 1 states 
only that nonattainment plans ``shall require reasonable further 
progress,'' CAA sections 182(b)(1) and 182(c)(2)(B) of subpart 2 
provide specific percent reduction targets for ozone nonattainment 
areas to meet the RFP requirement. Put another way, subpart 2 further 
defines RFP for ozone nonattainment areas by specifying the incremental 
amount of emissions reduction required by set dates for those 
areas.\11\ For Moderate ozone nonattainment areas, CAA section 
182(b)(1) defines RFP by setting a specific 15 percent VOC reduction 
requirement over the first six years of the plan. For Serious or higher 
ozone nonattainment areas, CAA section 182(c)(2)(B) defines RFP by 
setting specific annual percent reductions for the period following the 
first six-year period and allows averaging over a three-year period. 
With respect to the 1-hour ozone NAAQS, the EPA stated that, by meeting 
the specific percent reduction requirements in CAA sections 182(b)(1) 
and 182(c)(2)(B), the state will also satisfy the general RFP 
requirements of section 172(c)(2) for the time period discussed.\12\
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    \11\ CAA section 171(1) defines RFP as ``such annual incremental 
reductions in emissions of the relevant air pollutant as are 
required by this part or may reasonably be required by the 
Administrator for the purpose of ensuring attainment of the 
applicable national ambient air quality standard by the applicable 
date.'' The words ``this part'' in the statutory definition of RFP 
refer to part D of title I of the CAA, which contains the general 
requirements in subpart 1 and the pollutant-specific requirements in 
subparts 2-5 (including the ozone-specific RFP requirements in CAA 
sections 182(b)(1) and 182(c)(2)(B) for Serious areas).
    \12\ See 57 FR 13498 at 13510 (for Moderate areas) and at 13518 
(for Serious areas) (April 16, 1992).
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    We agree with the commenter that the EPA has adapted the RFP 
requirements under the CAA to implement the three 8-hour ozone NAAQS 
that have been promulgated since the 1990 CAA Amendments. In the 
``Phase 2'' SIP Requirements Rule for the 1997 Ozone NAAQS (Phase 2 
rule),\13\ the EPA adapted the RFP requirements of CAA sections 
172(c)(2) and 182(a)(1) so as to require plans to provide for the 
minimum required percent reductions and, for certain Moderate areas, to 
provide for the reductions as necessary for attainment. See, e.g., 40 
CFR 51.910(a)(1)(ii)(A) and (b)(2)(ii)(C).
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    \13\ See 70 FR 71612 (November 29, 2005).
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    In 2015, the EPA replaced the regulations promulgated through the 
Phase 2 rule with the regulations promulgated through the 2008 Ozone 
SRR.\14\ In the 2008 Ozone SRR, the EPA established RFP requirements 
for the 2008 ozone NAAQS that are similar, in most respects, to those 
in the Phase 2 rule for the 1997 ozone NAAQS but that do not define RFP 
for certain Moderate areas in terms of the reductions needed for 
attainment.\15\ More explicitly, in the 2008 Ozone SRR, the EPA defined 
RFP as meaning both the ``emissions reductions required under CAA 
section 172(c)(2) which the EPA interprets to be an average 3 percent 
per year emissions reductions of either VOC or NOX and CAA sections 
182(c)(2)(B) and (c)(2)(C) and the 15 percent reductions over the first 
six years of the plan and the following three percent per year average 
under 40 CFR 51.1110.'' \16\ Thus, under the 2008 Ozone SRR, the RFP 
emissions reductions required for Serious or higher ozone nonattainment 
areas under CAA section 172(c)(2) are based on a set annual percentage 
found in the CAA, not on the specific attainment needs for the area. In 
this regard, we have been even more explicit in our SRR for the 2015 
ozone NAAQS: \17\ ``Reasonable further progress (RFP) means the 
emissions reductions required under CAA sections 172(c)(2), 
182(c)(2)(B), 182(c)(2)(C), and Sec.  51.1310. The EPA

[[Page 24695]]

interprets RFP under CAA section 172(c)(2) to be an average 3 percent 
per year emissions reduction of either VOC or NOX.\18\
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    \14\ 80 FR 12264. Under 40 CFR 51.919 and 51.1119, the 
regulations promulgated in the 2008 Ozone SRR replaced the 
regulations promulgated in the Phase 2 rule, with certain exceptions 
not relevant here.
    \15\ Compare RFP requirements for the 1997 ozone NAAQS at 40 CFR 
51.910(a)(1)(ii)(A) and (b)(2)(ii)(C) with the analogous provisions 
for the 2008 ozone NAAQS at 40 CFR 51.1110(a)(2)(i)(B).
    \16\ See 40 CFR 51.1100(t) (emphasis added).
    \17\ See 83 FR 62998 (December 6, 2018).
    \18\ See 40 CFR 51.1300(l).
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    In the 2008 Ozone SRR, which is the set of regulations that governs 
the EPA's action here, RFP is defined in terms of percent reduction 
from the area's emissions in the baseline year, not in terms of the 
reductions necessary for attainment. In other words, for the 2008 ozone 
NAAQS, the RFP milestones represent the minimum progress that is 
required under the CAA and our regulations, not necessarily all of the 
reductions necessary to achieve attainment of the ozone NAAQS, which 
could vary largely from one nonattainment area to another.
    The DFW area RFP demonstration in the Texas RFP submittal was 
developed for the DFW Serious nonattainment area \19\ to meet the 
applicable requirements of the CAA and our 2008 Ozone SRR, not the 
Phase 2 rule for the 1997 ozone NAAQS. Specifically, we reviewed the 
RFP demonstration in the Texas RFP submittal for compliance with the 
requirements under 40 CFR 51.1110(a)(2)(i), which adapts the 
requirements under CAA sections 172(c)(2) and 182(b)(1) for Moderate 
areas, and 40 CFR 51.1110(a)(2)(ii), which adapts the requirements of 
CAA section 182(c)(2)(B) for Serious areas.\20\ The requirements under 
40 CFR 51.1110(a)(2)(i) and (ii) are cumulative and together they 
require a 15 percent reduction in emissions from the baseline year 
within six years after the baseline year and average emissions 
reductions of three percent per year for all remaining three-year 
periods after the first six-year period until the year of the area's 
attainment date. As explained in our October 2020 proposal, based on 
our evaluation, we found that the Texas RFP submittal for the DFW area 
provided for the percent reductions required under the 2008 Ozone 
SRR.\21\
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    \19\ The DFW area was reclassified from Serious to Severe 
nonattainment for the 2008 ozone NAAQS (87 FR 60926, October 7, 
2022). The RFP and other SIP requirements for the Severe 
nonattainment area will be addressed in a separate rulemaking 
action.
    \20\ 40 CFR 51.1110(a)(2) applies to the DFW area because DFW is 
an area with an approved 1-hour ozone NAAQS 15 percent VOC Rate of 
Progress (ROP) plan.
    \21\ 85 FR 68268, at 68274-68276.
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    Under the 2008 Ozone SRR, the RFP demonstration for the 2008 ozone 
NAAQS does not need to provide for the reductions needed for 
attainment. Thus, contrary to the commenter's assertion, the RFP 
demonstration for the DFW area can be severed from the attainment 
demonstration and control strategy and can be independently approved, 
and we do so in this final rule by approving the RFP demonstration for 
the DFW area in the Texas RFP submittal while deferring action on the 
attainment demonstration.
    Comment: The commenter asserts that there is no basis to conclude 
that the DFW RFP Plan meets the requirements for VOC emission 
reductions, as it relies on substitute reductions in emissions of 
NOX that have not been shown to be equivalent to the 
required VOC emission reductions.
    Response: Our October 2020 proposal did not address how the 
NOX reductions in the DFW RFP plan are at least as effective 
as using VOC reductions in reducing ozone. Consequently, we published a 
December 2022 supplemental proposal, which addresses the NOX 
issue. Our December 2022 supplemental proposal describes in detail 
ozone chemistry in the DFW area and evaluates the use of NOX 
substitution in the Texas submittal. As described in our December 2022 
supplemental proposal, the State's review of DFW ozone and 
NOX concentrations for each day of the week links levels of 
NOX, rather than VOC, with ozone levels, indicating that 
decreasing levels of NOX would result in decreasing levels 
of ozone. The State's ambient NOX and ozone data in the DFW 
area indicate that those areas of DFW with the highest ozone values are 
NOX-limited and there are no violating monitors in the DFW 
areas described as VOC-limited.\22\ Our December 2022 supplemental 
proposal also describes a recent analysis by the EPA that points to the 
DFW area as NOX-limited.\23\ Our December 2022 action 
proposes that Texas's use of NOX substitution in the DFW 
area is reasonable and appropriately implemented. Our December 2022 
action also proposes to approve the NOX substitution 
provided in the Texas RFP submittal for the DFW area as consistent with 
CAA section 182(c)(2)(C). The comment period for the December 2022 
supplemental proposal was open from December 20, 2022, to January 19, 
2023. We did not receive public comments on our December 2022 
supplemental proposal that address or otherwise challenge the technical 
basis for NOX substitution in the DFW area.
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    \22\ The phrase ``NOX-limited'' means that ozone 
concentrations are more sensitive to ambient NOX levels 
than to ambient VOC levels. Therefore, in a NOX-limited 
area, the formation of ozone is limited by the amount of 
NOX present and ozone concentrations are most effectively 
reduced by lowering NOX emissions, rather than lowering 
emissions of VOC. Additional VOC does not lead to the formation of 
more ozone in areas where the reaction is NOX-limited.
    \23\ These analyses are described in the December 2022 
supplemental proposal and are posted in the docket for this action.
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    Comment: The commenter provides numerous statements regarding the 
EPA's NOX Substitution Guidance,\24\ contending that if the 
EPA intended to adopt the positions set forth in the NOX 
Substitution Guidance, the proposal would be arbitrary and capricious 
and contrary to law because of problems with the NOX 
Substitution Guidance. These comments assert generally that the 
NOX Substitution Guidance contradicts CAA section 
182(c)(2)(C) by recommending a procedure that fails to demonstrate any 
equivalence between VOC and NOX reductions, relies on 
incorrect policy assumptions, and gives legal justifications that are 
without merit.
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    \24\ NOX Substitution Guidance, Office of Air Quality 
Planning and Standards, U.S. Environmental Protection Agency, 
December 1993, available at https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/19931201_oaqps_nox_substitution_guidance.pdf.
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    Response: Our proposed approval of the RFP plan's use of 
NOX substitution is compatible with the NOX 
Substitution Guidance, which, while non-binding and not having the 
force of regulation, provides a recommended procedure for substituting 
NOX emission reductions for VOC reductions on a percentage 
basis, consistent with the State's identified emissions reduction 
measures, and RFP milestones and requirements. As noted earlier in 
these responses and in our December 2022 supplemental proposal, our 
approval of the State's use of NOX substitution is supported 
by conditions in the DFW area and EPA analyses and is consistent with 
the requirements in CAA section 182(c)(2)(C). Comments relating solely 
to the NOX Substitution Guidance are outside the scope of 
this rulemaking action.
    Comment: The commenter states that the EPA must disapprove the 
contingency measures. The commenter also asserts that the 
NOX contingency measures have not been shown to be efficient 
in reducing ozone concentrations.
    Response: On January 29, 2021, the U.S. Court of Appeals for the 
District of Columbia Circuit (``D.C. Circuit'') issued a decision in 
response to challenges to EPA's 2015 and 2018 rules implementing the 
NAAQS for ozone, (80 FR 12264 and 83 FR 62998 (December 6, 2018)). 
Sierra Club, et al. v. EPA, 985 F.3d 1055 (D.C. Cir. 2021). Among the 
rulings in this decision, the D.C. Circuit vacated EPA's interpretation 
of the CAA to allow states to rely on already implemented control 
measures to meet the statutory

[[Page 24696]]

requirements of section 172(c)(9) or 182(c)(9) for contingency measures 
in nonattainment plans for the ozone NAAQS (see 83 FR 62998, 63026-27). 
The EPA is reexamining the contingency measures portion of the Texas 
RFP submittal for the DFW area considering the D.C. Circuit decision. 
Therefore, we are not taking final action at this time on the 
contingency measures submitted as part of the May 13, 2020, Texas RFP 
submittal for the DFW area included in the October 2020 proposal. The 
EPA plans to address the contingency measures in a separate action.
    Comment: The commenter contends that the motor vehicle emissions 
budgets must be consistent with attainment requirements as well as RFP 
requirements and in the absence of an approved attainment demonstration 
and control strategy, the RFP budgets must be disapproved. In support 
of this contention, the commenter cites selected portions of CAA 
section 176(c) and the EPA's transportation conformity rule. First, 
under section 176(c)(1)(B)(iii), the commenter notes that a Federal 
action cannot ``delay timely attainment of any standard,'' and without 
an approved attainment demonstration and control strategy, which could 
require VOC and NOX emissions reductions beyond those 
required by section 182(c)(2)(C), there is no way to tell if a 
transportation plan, improvement program, or project will ``delay 
timely attainment'' of the 2008 ozone standards, even if it stays 
within the proposed RFP budgets. Second, the commenter notes that, 
under the EPA's rules for transportation conformity, the term ``control 
strategy implementation plan revision'' is defined as the 
``implementation plan which contains specific strategies for 
controlling the emissions of and reducing ambient levels of pollutants 
in order to satisfy CAA requirements for demonstrations of reasonable 
further progress and attainment.'' \25\ For attainment plans (as 
opposed to maintenance plans), budgets are in part defined as ``that 
portion of the total allowable emissions defined in the submitted or 
approved control strategy implementation plan revision.'' \26\ Thus, 
the commenter argues that the budgets depend on the control strategy 
implementation plan revision, which must demonstrate both RFP and 
attainment.
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    \25\ 40 CFR 93.101 (emphasis added).
    \26\ Id. (emphasis added).
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    In addition, the commenter notes that the particular budgets 
proposed for approval are derived from the projected on-road mobile 
source emissions estimates in the attainment year (2020) emissions 
inventory upon which the attainment demonstration is based, and thus 
must be consistent with attainment requirements as well as RFP 
requirements. Because the EPA has not approved the attainment 
demonstration, including the projected attainment year emissions 
inventory, the commenter asserts that the EPA cannot approve the 
budgets that derive from that inventory.
    Response: First, we acknowledge that the budgets are derived from 
the projected attainment year (2020) emissions inventory for the DFW 
Serious nonattainment area. However, year 2020 was both an RFP 
milestone year and the attainment year for the DFW area.\27\ Therefore, 
the projected 2020 emissions inventory was the basis for both the RFP 
demonstration for that milestone year and for the attainment 
demonstration. As explained earlier in these responses, the RFP 
demonstration and attainment demonstration requirements are independent 
requirements under the 2008 Ozone SRR and thus, can be approved 
separately. In this final action, we are approving the budgets only for 
RFP purposes.
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    \27\ As mentioned earlier in this document, the DFW area was 
reclassified from Serious to Severe nonattainment for the 2008 ozone 
NAAQS. The attainment date for the Severe nonattainment area is July 
20, 2027 (87 FR 60926). Therefore, and consistent with 40 CFR 
51.1100(h), the attainment year ozone season for the DFW Severe 
nonattainment area is 2026. The RFP and other SIP requirements for 
the Severe nonattainment area will be addressed in a separate 
rulemaking action.
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    Second, we note that CAA section 176(c)(4)(B) obligates the EPA to 
promulgate, and periodically update, criteria and procedures for 
demonstrating and assuring conformity in the case of transportation 
plans, programs, and projects, and we have done so at 40 CFR part 93, 
subpart A (``Conformity to State or Federal Implementation Plans of 
Transportation Plans, Programs, and Projects Developed, Funded or 
Approved Under Title 23 U.S.C. or the Federal Transit Laws'') (herein, 
``transportation conformity rule''). Our transportation conformity rule 
defines ``motor vehicle emissions budget'' as ``that portion of the 
total allowable emissions defined in the submitted or approved control 
strategy implementation plan revision or maintenance plan for a certain 
date for the purpose of meeting reasonable further progress milestones 
or demonstrating attainment or maintenance of the NAAQS. . . .'' \28\ 
Further, among the criteria we must use when evaluating a budget for 
adequacy or approval, is the criterion at 40 CFR 93.118(e)(4)(iv) that 
requires budgets, when considered together with all other emissions 
sources, to be consistent with applicable requirements for RFP, 
attainment, or maintenance (whichever is relevant to the given 
implementation plan submission).\29\
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    \28\ See 40 CFR 93.101 (emphasis added).
    \29\ See 40 CFR 93.118(e)(4)(iv) (emphases added).
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    Thus, under our transportation conformity rule, the EPA can approve 
motor vehicle emissions budgets if we find them consistent, when 
considered together with all other emissions sources, with the 
applicable requirements for RFP or attainment; it is not required that 
the budget be consistent with RFP and attainment but only that they are 
consistent with the requirement that is relevant for purposes of the 
SIP. In this instance, the relevant requirements are those for RFP, not 
attainment, and we are approving the budgets as consistent with those 
requirements, not the attainment requirements, consistent with the 
transportation conformity rule.\30\ This interpretation has been upheld 
by the Ninth Circuit in Natural Resources Defense Council v. EPA, 638 
F.3d 1183 (9th Cir. 2011). In this case, the petitioners similarly 
argued that the CAA and the EPA's implementing regulations require the 
EPA to consider attainment data when determining the adequacy of 
budgets for milestone years,\31\ but the Ninth Circuit agreed with the 
EPA that the EPA's transportation conformity rule provides otherwise. 
More specifically, the court agreed with the EPA that, for a milestone 
year, a budget need only demonstrate RFP toward the ultimate goal of 
attainment.\32\
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    \30\ The commenter claims that the EPA's adequacy determination 
is irrelevant for purposes of whether the EPA can approve the motor 
vehicle emissions budgets (MVEBs), because the EPA has stated that 
its adequacy review ``should not be used to prejudge EPA's ultimate 
approval or disapproval of the SIP.'' The EPA agrees that the 
adequacy determination is based on a cursory review of the SIP 
submittal when it is made prior to action on the SIP submittal 
itself. However, today's adequacy determination is based on the 
EPA's complete review, and approval, of the RFP demonstration for 
the DFW area within the Texas RFP submittal.
    \31\ Natural Resources Defense Council v. EPA, 638 F.3d 1183, 
1191 (9th Cir. 2011).
    \32\ Id.
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    On June 3, 2020, EPA posted the availability of the DFW area 
NOX and VOC budgets on EPA's website for the purpose of 
soliciting public comments, as part of the adequacy process.\33\ The 
comment period closed on July 3, 2020, and we received no comments. 
EPA's adequacy review of Texas's submitted budgets indicates that the 
budgets meet

[[Page 24697]]

the adequacy criteria set forth by 40 CFR 93.118(e)(4), as follows:
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    \33\ See https://www.epa.gov/state-and-local-transportation/adequacy-review-state-implementation-plan-sip-submissions-conformity.
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     The submitted control strategy implementation plan 
revision or maintenance plan was endorsed by the Governor (or his or 
her designee) and was subject to a State public hearing: The SIP 
revision was submitted to EPA by the Chairman of the Texas Commission 
on Environmental Quality, who is the Governor's designee.
     Before the control strategy implementation plan or 
maintenance plan was submitted to EPA, consultation among federal, 
State, and local agencies occurred; full implementation plan 
documentation was provided to EPA; and EPA's stated concerns, if any, 
were addressed: Texas conducted an interagency consultation process 
involving EPA and the U.S. Department of Transportation, the Texas 
Department of Transportation and the DFW area Metropolitan Planning 
Organization. All comments and concerns were addressed prior to the 
final submittal.
     The motor vehicle emissions budget(s) is clearly 
identified and precisely quantified: The budgets were clearly 
identified and quantified in Texas's submittal and presented in Table 6 
of our October 2020 proposal. The budgets are presented again in this 
final action in Table 1.
     The motor vehicle emissions budget(s), when considered 
together with all other emissions sources, is consistent with 
applicable requirements for reasonable further progress, attainment, or 
maintenance (whichever is relevant to the given implementation plan 
submission): The 2020 budgets apply a safety margin derived from 
surplus emissions reductions from the 2020 RFP demonstration and are 
therefore larger than the on-road mobile source inventory for 2020. 
However, the DFW RFP plan demonstrates that these budgets are 
consistent with reasonable further progress when considered with all 
other source categories for the 2020 RFP milestone year. The 2020 
budgets were developed with appropriate data inputs for the 2020 
milestone year, including vehicle miles of travel, speeds, and 
emissions factors.
     The motor vehicle emissions budget(s) is consistent with 
and clearly related to the emissions inventory and the control measures 
in the submitted control strategy implementation plan revision or 
maintenance plan: The budgets were developed from the on-road mobile 
source inventories, including all applicable state and Federal control 
measures. Inputs related to inspection and maintenance and fuels are 
consistent with Texas's Federally approved control programs.
     Revisions to previously submitted control strategy 
implementation plans or maintenance plans explain and document any 
changes to previously submitted budgets and control measures; impacts 
on point and area source emissions; any changes to established safety 
margins (see 40 CFR 93.101 for definition); and reasons for the changes 
(including the basis for any changes related to emission factors or 
estimates of vehicle miles traveled): The submitted RFP plan 
establishes new 2020 budgets to ensure continued progress towards 
attainment of the standards; therefore, this criterion is not 
applicable in this circumstance. In light of our responses to the 
comments and for the reasons provided in the October 2020 proposal and 
December 2022 supplemental proposal, we are taking final action to 
approve the RFP demonstration and the related motor vehicle emissions 
budgets and are finding that the budgets are adequate for 
transportation conformity purposes.

          Table 1--RFP Motor Vehicle Emissions Budgets for DFW
                            [In tons per day]
------------------------------------------------------------------------
                         Year                             NOX      VOC
------------------------------------------------------------------------
2020.................................................   107.25    62.41
------------------------------------------------------------------------

III. Final Action

    We are approving revisions to the Texas SIP that address the RFP 
requirements for the DFW Serious ozone nonattainment area for the 2008 
ozone NAAQS. Specifically, we are approving the RFP demonstration and 
associated motor vehicle emissions budgets. We are also notifying the 
public that EPA finds the budgets for NOX and VOC for the 
DFW area are adequate for the purpose of transportation conformity. 
Within 24 months from May 24, 2023, the transportation partners will 
need to demonstrate conformity to the new NOX and VOC MVEBs 
pursuant to 40 CFR 93.104(e)(3).

IV. Environmental Justice Considerations

    As stated in our December 2022 supplemental proposal and for 
informational purposes only, EPA reviewed demographic data, which 
provides an assessment of individual demographic groups of the 
populations living within the 10-county DFW ozone nonattainment area 
(Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, 
Tarrant, and Wise counties). EPA then compared the data to the national 
average. The results of the demographic analysis indicate that, for 
populations within Collin, Dallas, Denton, Ellis, Kaufman, and Tarrant 
counties, the percent people of color (persons who reported their race 
as a category other than White alone (not Hispanic or Latino)) is 
higher than the national average (ranging from 46.1 to 75.4 percent 
versus 43.1 percent). For populations within Johnson, Parker, Rockwall, 
and Wise counties, the percent people of color (persons who reported 
their race as a category other than White alone (not Hispanic or 
Latino)) is lower than the national average (ranging from 19.7 to 35.9 
percent versus 43.1 percent). Within people of color, the percent of 
the population that is Black or African American alone is higher than 
the national average in Dallas, Ellis, Kaufman, and Tarrant counties 
(ranging from 14.4 to 23.8 percent versus 13.6 percent) and lower than 
the national average in the other six DFW counties (ranging from 1.8 to 
11.9 percent versus 13.6 percent). Within people of color, the percent 
of the population that is American Indian/Alaska Native is lower than 
the national average in all 10 of the DFW counties (ranging 0.7 percent 
to 1.2 percent versus 1.3 percent). Within people of color, the percent 
of the population that is Asian alone is higher than the national 
average in Collin, Dallas, and Denton counties (ranging from 7.0 to 
17.5 percent versus 6.1 percent) and lower than the national average in 
the other seven DFW counties (ranging from 0.6 to 6.0 percent versus 
6.1 percent). Within people of color, the percent of the population 
that is Native Hawaiian and Other Pacific Islander alone is higher than 
the national average in Johnson County (0.5 percent versus 0.3 
percent), equal to the national average in Tarrant County (0.3 
percent), and lower than the national average in the other eight DFW 
counties (0.1 percent versus 0.3 percent). Within people of color, the 
percent of the population that is two or more races is equal to the 
national average in Collin County (2.9 percent) and lower than the 
national average in the other nine DFW counties (ranging from 2.0 to 
2.8 percent versus 2.9 percent). Within people of color, the percent of 
the population that is Hispanic or Latino is lower than the national 
average in Collin and Parker counties (ranging from 14.0 to 15.8 
percent versus 18.9 percent) and higher than the national average in 
the other eight DFW counties (ranging from 20.0 to 41.4 percent versus 
18.9 percent). The percent of people living in poverty in Dallas County 
is higher than the

[[Page 24698]]

national average (13.7 percent versus 11.6 percent) and lower than the 
national average in the other nine DFW counties (ranging from 4.8 to 
10.5 percent versus 11.6 percent).\34\
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    \34\ Demographic data from the U.S. Census Bureau: https://www.census.gov/quickfacts/fact/table/US/PST045222.
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    This final action does not add new rules to the SIP but 
demonstrates ongoing reductions of ozone precursor emissions, as 
required by the CAA. Information on ozone and its relationship to 
negative health impacts can be found at https://www.epa.gov/ground-level-ozone-pollution.\35\ We expect that the continuing emission 
reductions demonstrated in this action will generally be neutral or 
contribute to reduced environmental and health impacts on all 
populations in the 10-county DFW ozone nonattainment area, including 
people of color and low-income populations. Further, there is no 
information in the record indicating that this action is expected to 
have disproportionately high or adverse human health or environmental 
effects on a particular group of people.
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    \35\ See also, 80 FR 65292 (October 26, 2015).
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V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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, 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 an 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 requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The TCEQ did not evaluate EJ considerations as part of its SIP 
submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. EPA performed an EJ analysis, 
as is described above in the section titled, ``Environmental Justice 
Considerations.'' The analysis was done for the purpose of providing 
additional context and information about this rulemaking to the public, 
not as a basis of the action. Due to the nature of the action being 
taken here, this action is expected to have a neutral to positive 
impact on the air quality of the affected area. In addition, there is 
no information in the record upon which this decision is based 
inconsistent with the stated goal of E.O. 12898 of achieving EJ for 
people of color, low-income populations, and Indigenous peoples.
    This action is subject to the Congressional Review Act, and the EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 23, 2023. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.

    Dated: April 17, 2023.
Earthea Nance,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. In Sec.  52.2270(e), the table titled ``EPA Approved Nonregulatory 
Provisions and Quasi-Regulatory Measures in the Texas SIP'' is amended 
by adding the entry ``Reasonable Further

[[Page 24699]]

Progress (RFP) Plan and RFP Motor Vehicle Emission Budgets for 2020'' 
at the end of the table to read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                                State
       Name of SIP provision        Applicable geographic    submittal/      EPA approval date       Comments
                                    or nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Reasonable Further Progress (RFP)   Collin, Dallas,              3/4/2020  4/24/2023 [Insert
 Plan and RFP Motor Vehicle          Denton, Ellis,                         Federal Register
 Emission Budgets for 2020.          Johnson, Kaufman,                      citation].
                                     Parker, Rockwall,
                                     Tarrant and Wise
                                     Counties, TX.
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[FR Doc. 2023-08436 Filed 4-21-23; 8:45 am]
BILLING CODE 6560-50-P


