Texas, Beaumont/Port Arthur Ozone Nonattainment Area Determination of Nonattainment as of November 15, 1996 and Reclassification of Area from Moderate to Serious

Federal Register Dates:
  Supplemental proposed rule:             June 19, 2003 (68 FR 36756-36763).
  Proposed rule; extension of comment period: July 1, 2003 (68 FR 39041-39042).
  Final rule:                             March 30, 2004 (69 FR 16483-16494)
  Effective Date:                              April 29, 2004.   

Type of Pollutant: Ozone (O3)

Area Covered: Beaumont/Port Arthur Area which consist of Hardin, Jefferson, and Orange counties in Texas

Below is relevant information copied from the final approval Federal Register action.
See 69 FR 16483 (March 30, 2004) for the complete Federal Register.


TITLE:  Determination of Nonattainment as of November 15, 1996 and Reclassification of
the Beaumont/Port Arthur Ozone Nonattainment Area; State of Texas; Final Rule  

ACTION: Final rule.

SUMMARY: Pursuant to the U.S. Court of Appeals for the Fifth Circuit's
(the Court) reversal, the EPA is withdrawing its final action that
extended the attainment date to November 15, 2007, and approved the
transport demonstration (66 FR 26914) for the Beaumont/Port Arthur 1-
hour ozone nonattainment area (the BPA area). The EPA finds that the
BPA area 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
Federal Clean Air Act (Act or CAA). As a result, the BPA area is
reclassified by operation of law as a serious 1-hour ozone
nonattainment area. The new serious area attainment date for the BPA
area is as expeditiously as practicable but no later than November 15,
2005. The State of Texas must submit a State Implementation Plan (SIP)
revision that meets the serious area 1-hour ozone nonattainment area
requirements of the Act on or before one year after the effective date
of this final action. We are adjusting the dates by which the area must
meet the rate-of-progress (ROP) requirements and adjusting contingency
measure requirements as they relate to the ROP requirements. These
final actions are in direct response and to comply with the Court's
reversal.
    In response to the Court's remand, we are withdrawing our final
approval of BPA's 2007 attainment demonstration SIP, the Mobile Vehicle
Emissions Budget (MVEB), the mid-course review commitment (MCR), and
our finding that BPA implemented all Reasonable Available Control
Measures (RACM). The required revised SIP must include, among other
things, a revised attainment demonstration SIP, a new MVEB, and a re-
analysis of RACM that complies with the Court's order.

DATE: This final rule is effective on April 29, 2004.


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:

Outline:
I.   What Is the Background for this 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 Rulemaking?
VII. Application of the CAA Provisions Regarding Determinations of
Nonattainment and Reclassifications
     A. Serious Classification
     B. Selection of Option 2--Reclassification to Serious
VIII. What Is the New Attainment Date for the Beaumont/Port Arthur
Area?
IX.  What is the Date for Submitting a Revised SIP for the Beaumont/
Port Arthur Area?
X.   Why Are We Withdrawing the Attainment Demonstration, MCR, and
MVEB approvals and the RACM Finding, and What Are the Potential
Impacts of the 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 Are 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?
XV.  EPA Action


I. What Is the Background for This Action?

    The BPA area was 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 to reclassify the BPA area to a serious ozone nonattainment
area, or, in the alternative to extend BPA's attainment date if the
State submitted a SIP consistent with the criteria of the Transport
Policy. 64 FR 18864. As part of the proposed alternative
reclassification of the area to serious, the 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.
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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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    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.
    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, an MCR enforceable commitment,
and RACM analysis. We proposed on December 27, 2000, to approve the
transport demonstration and to extend the attainment date without
reclassifying the area, to approve the attainment demonstration SIP and
MVEB, to approve the MCR commitment, and to 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. 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 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 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.
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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 three circuit court decisions, EPA issued
final rules withdrawing transport-based attainment date extensions
and reclassifying the Baton Rouge and the Atlanta ozone
nonattainment areas, (68 FR 20077 (April 24, 2003), and 68 FR 55469
(September 26, 2003), respectively).
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    EPA published a Supplemental Proposed rule dated June 19, 2003 (68
FR 36756). In response to the Court's reversal, EPA proposed to
withdraw its final action that extended the attainment date to November
15, 2007, and approved the transport demonstration. We also proposed to
issue a finding that BPA 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, and to reclassify BPA as a serious 1-hour ozone nonattainment
area. EPA also proposed that should we take final action on the
reclassification to serious, we would also take one of two alternative
options for identifying the appropriate attainment date for the area.
Under Option 1, EPA proposed further to find that the area failed to
attain the 1-hour ozone standard by November 15, 1999, the attainment
date for serious nonattainment areas. If EPA took final action on that
finding, the area would 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, if the area were reclassified
as a serious 1-hour ozone nonattainment area, EPA proposed that it
would retain that classification, but that it would have an attainment
date of no later than November 15, 2005. Under either alternative, we
proposed 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 further proposed 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.
    In response to the Court's remand, we also proposed 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 proposed the schedule for Texas to submit
a revised SIP, a new MVEB, and a re-analysis of RACM meeting the
Court's order.

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
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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.
8-hour....  0.08 ppm...  Primary and Secondary...  Three year average of
                                                   the annual fourth
                                                   highest value at any
                                                   specific monitor must
                                                   not exceed the
                                                   standard.
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    (Primary standards are designed to protect public health and
secondary standards are designed to protect public welfare and the
environment.) Eventually the 8-hour standard will replace the one hour
standard. EPA is currently developing a transition policy from the one
hour standard to the eight hour standard that will explain which one
hour requirements must remain in place (68 FR 32802).
    At this time 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 1-hour ozone nonattainment area is located
in Southeast Texas, and consists of Hardin, Jefferson, and Orange
Counties.

VI. What Is the Additional Context for This Rulemaking?

    The Transport Policy provided for an extension of an area's
attainment date if it was adversely affected by transport, without
having to reclassify the affected area. Consequently, when we granted
the extension of the attainment date for BPA based upon the transport
demonstration, 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 while retaining the ``moderate''
classification, using the Transport Policy, is no longer valid.

VII. Application of the CAA Provisions Regarding Determinations of
Nonattainment and Reclassifications

A. Serious Classification

    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 ozone
nonattainment area, the 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, pursuant to
section 181(b) of the CAA, we find that the BPA area did not attain the
1-hour ozone NAAQS by the November 15, 1996, deadline for moderate
areas. Additional background for this 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
technical support document (TSD). We received no adverse comments on
our findings regarding these air quality data.
    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 2003 calculated design
value, based on quality-assured ozone monitoring data from 2001-2003,
is 0.129 ppm. By contrast, the next higher classification for BPA is
``serious.'' Because ``serious'' is a higher nonattainment
classification than ``moderate'' under the statutory scheme, BPA is
reclassified by operation of law as ``serious,'' for failing to attain
the standard by the moderate area applicable attainment date of
November 15, 1996.

B. Selection of Option 2--Reclassification to Serious

    In EPA's Supplemental Proposed rule dated June 19, 2003 (68 FR
36756), we proposed two options for identifying the appropriate
attainment date following a final action on the reclassification of the
BPA area to serious. Under Option 1, EPA would make an additional
determination of whether BPA attained the standard by November 15,
1999. If we made a final determination that the area failed to attain
by the 1999 date, the area would be reclassified as severe with an
attainment date of no later than November 15, 2005. Under Option 2, if
the area were reclassified as a serious area, EPA would retain the
serious classification for the area but the attainment date would be no
later than November 15, 2005.
    We have concluded that Option 2 is the better choice. We therefore
have chosen not to finalize the additional determination of whether the
BPA area attained the standard by November 15, 1999. We believe it is
appropriate in these special BPA circumstances to retain the serious
classification but with a prospective attainment date. Through
discussions with representatives from the State, Industry,
Environmental Groups, and commenting parties it seems that they agree
Option 2 is the better choice considering the BPA area's particular
circumstances, history, and facts.


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

    The new attainment date for the BPA area is as expeditiously as
practicable but no later than November 15, 2005. The as expeditiously
as practicable attainment date will be determined as part of the action
on the required SIP submittal.

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

    EPA must address the schedule by which Texas is required to submit
the SIP revision. We proposed the required SIP revision be submitted as
expeditiously as practicable but no later than one year after the
effective date of our final action. No adverse comments were received
by the EPA on this issue. Today, we are requiring that Texas submit the
SIP revision as expeditiously as practicable but no later than one year
after the effective date of this final action.
    Additionally, the implementation of the failure to attain
contingency measures in the current SIP is triggered automatically upon
the effective date of this rule. Further, Texas is required to submit a
revision to the SIP containing contingency measures under sections
172(c)(9) and 182(c)(9) to meet ROP requirements and for failure to attain.
    The State's SIP revision submitted for an attainment date of 2007
contained a commitment to perform and submit a mid-course review (MCR)
by May 1, 2004. Due to the new time frame for SIP submittal and the
attainment date of November 15, 2005, Texas is not required to submit
an MCR for the BPA area.

X. Why Are We Withdrawing the Attainment Demonstration, MCR and MVEB
Approvals and the RACM Finding, and What Are the Potential Impacts of
the Withdrawals?

    We are withdrawing 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 attainment date earlier 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 are withdrawing 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, are required to be submitted for the BPA
area. All are due on or before one year from the effective date of this
Final Rule.
    As discussed in the June 19, 2003, supplemental proposal, 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 the analysis and conclusions regarding RACM in the BPA area to
the EPA. According to the Court's order, the analysis must: (1)
demonstrate an examination of all 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.
    The State is responsible for performing and submitting a new RACM
analysis for EPA use in determining SIP approval. Even though the State
is responsible for developing the new analysis, when evaluating the use
of RACM in the SIP approval process EPA will only consider as adequate
an RACM analysis by the State containing the factors outlined in the
Court's December 11, 2002, ruling. The RACM analysis is due on or
before the attainment demonstration due date.
    Withdrawing approval of the MVEB results 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 NOX budget. Therefore, there will be no
valid NOX budget in effect until a new NOX MVEB
is submitted and found adequate. In order for transportation projects
to proceed in the absence of an adequate NOX 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 Court's decision, 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 latest approved emissions model. See 40 CFR
51.112. EPA approved the MOBILE6 emissions factor model in January
2002. As a result, any new attainment SIP planning must now be based on
the MOBILE6 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-1996 Rate-of-
Progress Requirement?

    The section 182(c)(2)(B) reasonable further progress requirement
requires volatile organic compounds (VOC) or nitrogen oxides
(NOX) 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-1996 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\

    \4\ See Clean Air Act section 172(c)(3) and 40 CFR 51.112(a)(1).
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    Texas has not submitted ROP plans other than the original 15% ROP plan
required for the BPA area as a moderate 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 NOX 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.\5\ Baseline emissions are the total amounts of actual
VOC or NOX 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) 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 NOX, by
1999, an additional 9 percent VOC, or VOC and NOX, by 2002,
and an additional 9 percent VOC, or VOC and NOX, by 2005).
Under our guidance, the first rate-of-progress milestone year target
level, 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 and RACT fix-ups 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 RACT fix-ups and subtracts
the required 9 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 and RACT fix-ups 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
NOX substitution, requires a 1990 base year inventory for
both VOC and NOX, a 1990 base year VOC inventory adjusted to
1996, and 1990 base year VOC and NOX inventories adjusted to
1999. Preparation of a rate-of-progress plan for 2005 with
NOX substitution requires a 1990 base year inventory for
both VOC and NOX plus the following seven ``adjusted''
inventories: 1996 VOC; 1999 VOC and NOX; 2002 VOC and
NOX; and 2005 VOC and NOX.
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    \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, the BPA area now is
required to submit an ROP plan through November 15, 2005, the new
attainment date.
    \6\ These requirements under section 182(a)(2) are known as 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). 
    \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 1-hour ozone moderate or above 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).
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    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 reiterating the target levels for rate-of-
progress requirements for the 1996 milestone year.
    Thus, 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 NOX for 1999, VOC and NOX
for 2002, plus VOC and NOX 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 NOX 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 new attainment date, attainment must be
achieved as expeditiously as practicable but no later than November 15,
2005.
    Under the 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
reduction requirements on large sources of NOX.
    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/NOX emission reduction) as ``the total amount of actual
VOC or NOX 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\
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    \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).
---------------------------------------------------------------------------

    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 toward 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, account 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 would have been 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 will be an expeditiously as practicable date
for achievement of this post-1996 18 percent rate-of-progress requirement.
    EPA finds that the 1999 and 2002 rate-of-progress requirements are
that Texas must submit a rate-of-progress plan that demonstrates that
the SIP has sufficient measures to achieve the required 18 percent
reductions by a date as expeditiously as practicable.\11\ This approach
was recently upheld by the United States Court of Appeals for the
District of Columbia Circuit in Sierra Club v. EPA, DC. Cir. No. 03-
1084 (Feb. 3, 2004), slip opinion at page 22 note 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 expeditious as practicable.
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    \11\ EPA believes that such date cannot be any later than
November 15, 2005.
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B. 2005 Rate-of-Progress

    There is no change to the date by which the 2003-2005 9 percent
increment of the 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.

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, the EPA believes
that the contingency plan will need to account for any adjustment to
the milestone dates.
    With this final action determining that BPA has failed to attain
the standard by November 15, 1996, the presently-approved 1996 ROP/
attainment contingency plan is automatically invoked. (See 63 FR 6659
for the contingency measures.) Therefore, the State is 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' plan requirements of sections 172(c)(9) and
182(c)(9) of the CAA, implementation of the failure-to-attain
contingency measures' plan in the current SIP is triggered
automatically upon the effective date of this Final rule. Further,
Texas is required to submit a revision to the SIP containing additional
contingency measures to meet post-1996-2005 ROP requirements and for
failure to attain by the 2005 attainment date. See 57 FR 13498, 13511
(1992).

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

    In accordance with a serious classification, the major stationary
source threshold will now be lower than it was as a moderate
classification. Consequently, the State's Title V operating permits
program regulations need to cover existing sources that are now subject
to the lower major stationary source threshold of serious (50 tons per
year for volatile organic compounds (VOCs) and nitrogen oxide compounds
(NOX)). 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 an
earlier date set by the applicable permitting authority) time period to
submit a timely application will commence on the effective date of this
reclassification action.


*     *     *     *     *

XV. EPA Action

    EPA is taking the following actions:
    • We are withdrawing our final action that
extended the attainment date to November 15, 2007, and approved the
transport demonstration (66 FR 26914).
    • We are withdrawing our final approval of BPA's
2007 attainment demonstration SIP, the Mobile Vehicle Emissions Budget
(MVEB), the mid-course review commitment (MCR), and our finding that
BPA implemented all Reasonable Available Control Measures (RACM).
    • Pursuant to section 181 (b), we find 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.
    • The area is reclassified by operation of law as
a serious 1-hour ozone nonattainment area,
    • We are establishing an attainment date of as
expeditiously as practicable but no later than November 15, 2005.
    • The contingency measures plan for failure to
attain is triggered upon the effective date of this final action.
    • The State of Texas must backfill this
contingency measures plan for failure to attain.
    • We are adjusting the dates by which the area
must meet the 1999 and 2002 rate-of-progress (ROP) requirements and
adjusting contingency measure requirements as they relate to the ROP
requirements.
    • The State of Texas is no longer required to
submit an MCR by May 1, 2004.
    • The State of Texas is to submit the required
revised SIP, a new MVEB, and a re-analysis of RACM, on or before one
year after the effective date of this Final action.

*     *     *     *     *

AMMENDATORY LANGUAGE:

• Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations
are amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

Sec.  52.2270  [Amended]

• 2. In Sec.  52.2270(e), the table entitled ``EPA Approved Nonregulatory
Provisions and Quasi-Regulatory Measures in the Texas SIP'' is amended
by removing the following four entries for the Beaumont/Port Arthur,
Texas, area approved by EPA 5/15/01, 66 FR 26939: Attainment
Demonstration for the 1-hour Ozone NAAQS; Ozone Attainment Date
Extension to 11/15/07; Commitment by Texas to perform a mid-course
review and submit a SIP revision by 05/01/04; and Finding that BPA area
is implementing all Reasonably Available Control Measures.

PART 81--[AMENDED]

• 1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

• 2. In Sec.  81.344 the table entitled ``Texas--Ozone (1-hour
standard)'' is amended by revising the entries for the Beaumont/Port
Arthur area to read as follows:

Sec.  81.344  Texas.

* * * * *

                     Texas--Ozone (1-Hour Standard)
--------------------------------------------------------------------------
                             Designation                  Classification
Designated area         --------------------------------------------------
                           Date \1\    Type             Date \1\    Type
--------------------------------------------------------------------------
Beaumont/Port Arthur Area:
Hardin County...........   11/15/1990  Nonattainment.. 4/29/2004  Serious.
Jefferson County........   11/15/1990  Nonattainment.. 4/29/2004  Serious.
Orange County...........   11/15/1990  Nonattainment.. 4/29/2004  Serious.

                            * * * * * * *
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\1\ This date is October 18, 2000, unless otherwise noted.


EPA Region 6 Contact:
    Bill Deese (214-665-7253), deese.william@epa.gov

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