[Federal Register Volume 75, Number 202 (Wednesday, October 20, 2010)]
[Rules and Regulations]
[Pages 64675-64680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26261]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R06-OAR-2008-0932; FRL-9214-9]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Texas; Beaumont/Port Arthur
Ozone Nonattainment Area: Redesignation to Attainment for the 1997 8-
Hour Ozone Standard and Determination of Attainment for the 1-Hour
Ozone Standard; Clarification of EPA's Approval of the El Paso Section
110(a)(1) Maintenance Plan for the 1997 8-Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve a request from the State
of Texas to redesignate the Beaumont/Port Arthur (BPA) Texas ozone
nonattainment area to attainment of the 1997 8-hour ozone National
Ambient Air Quality Standard (NAAQS). EPA is making a final
determination that the BPA nonattainment area has attained the 1997 8-
hour ozone NAAQS, based on complete, quality-assured, and certified
ambient air quality monitoring data for 2006-2008. Preliminary data
available for 2009 and 2010 show that the area continues to attain the
1997 8-hour ozone NAAQS.
In finalizing its approval of the redesignation request, EPA also
approves, as a revision to the BPA State Implementation Plan (SIP), a
1997 8-hour ozone maintenance plan that includes a 2021 Motor Vehicle
Emissions Budget (MVEB). EPA is also approving the BPA area's 2002 base
year emissions inventory as part of the BPA SIP. EPA also is approving
as part of the BPA SIP, the Texas Clean-Fuel Vehicle (CFV) Program
Equivalency Demonstration. EPA finds that with final approval of these
revisions, the area has a fully approved SIP that meets all of the 1997
8-hour ozone requirements and 1-hour ozone anti-backsliding
requirements under section 110 and Part D of the Federal Clean Air Act
(CAA or Act) that are applicable for purposes of redesignation. EPA is
also approving a determination that the BPA area is meeting the 1-hour
ozone standard based upon three years of complete, quality-assured, and
certified ambient air quality monitoring data for 2006-2008.
Preliminary data available for 2009 and 2010 show that the area
continues to attain the standard.
Additionally, EPA is taking final action to approve the post-1996
Rate of Progress (ROP) plan's contingency measures, the substitute
control measures for the failure-to-attain contingency measures, and
the removal from the Texas SIP of a 1-hour ozone failure-to-attain
contingency measure, a volatile organic compound (VOC) SIP rule for
marine vessel loading, as meeting the requirements of section 110(l)
and part D of the Act.
EPA also is providing clarification of an earlier separate EPA
rulemaking action approving the Section 110(a)(1) Maintenance Plan for
the 1997 8-hour ozone standard for the El Paso 1997 8-hour attainment
area.
DATES: Effective Date: This rule will be effective November 19, 2010.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R06-OAR-2008-0932. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information is
[[Page 64676]]
not publicly available, i.e., 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 and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through http://www.regulations.gov or in hard copy at the Air Planning
Section, Air Planning Branch, Multimedia Planning and Permitting
Division, U.S. Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. EPA requests that if at
all possible, you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to schedule your inspection. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ms. Ellen Belk, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-2164; fax
number 214-665-7263; e-mail address [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What is the background for this rule?
II. What comments did we receive on the proposed rule?
III. What actions is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background for this rule?
The background for today's actions is discussed in detail in EPA's
May 17, 2010, proposal to approve Texas' redesignation request (75 FR
27514). In that proposed action, we noted that, under EPA regulations
at 40 CFR part 50, the 1997 8-hour ozone standard is attained when the
three-year average of the annual fourth-highest daily maximum 8-hour
average ozone concentrations is less than or equal to 0.08 parts per
million (ppm) (see 69 FR 23858, April 30, 2004, for more information).
Under the CAA, EPA may redesignate a nonattainment area to attainment
if sufficient complete, quality-assured data are available to determine
that the area has attained the standard and if it meets the other CAA
redesignation requirements in section 107(d)(3)(E).
The TCEQ, on December 16, 2008, submitted a complete request to
redesignate the BPA area to attainment for the 1997 8-hour ozone
standard. The redesignation request included three years of complete,
quality-assured data for the period of 2005 through 2007, indicating
the 8-hour NAAQS for ozone, as promulgated in 1997, had been attained
for the BPA area. Complete, quality-assured monitoring data for 2006-
2008 also show that the area continues to attain the 1997 8-hour ozone
standard. Preliminary data available for the 2009 and 2010 ozone
seasons indicate that the area continues to be in attainment.
The request also included a maintenance plan with associated MVEBs,
the 2002 base year emission inventory, and the sole outstanding 1-hour
ozone anti-backsliding requirement for the BPA area, the Texas CFV
Program Equivalency Demonstration. The submitted MVEB for nitrogen
oxides (NOX) and VOC for the BPA area is defined in the
table below:
Beaumont/Port Arthur NOX and VOC MVEB
[Summer season tons per day]
------------------------------------------------------------------------
Pollutant 2021
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NOX........................................................ * 7.24
VOC........................................................ 4.77
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* Includes an allocation of 1 tpd from the available NOX safety margin.
The submittal met the adequacy criteria in 40 CFR 93.118(e)(4), and
on April 1, 2010 (75 FR 16456), EPA published a Federal Register notice
deeming the 2021 MVEB for Beaumont/Port Arthur, Texas adequate for
transportation conformity purposes.
Apart from the redesignation request, the TCEQ also submitted and
EPA proposed to approve the 1-hour ozone Post-1996 ROP Plan's
contingency measures, backfill failure-to-attain contingency measures,
and removal from the Texas SIP under section 110(l) of a VOC marine
vessel loading contingency measure.
The May 17, 2010 proposed rule and Technical Support Document
provide a detailed discussion of how Texas met the redesignation
requirements and other CAA requirements.
II. What comments did we receive on the proposed rule?
EPA provided a 30-day review and comment period, which closed on
June 16, 2010. EPA received 25 comment letters in response to the
proposed rulemaking, each of which expressed support for approving the
request from the State of Texas to redesignate the BPA ozone
nonattainment area to attainment for the 1997 8-hour ozone standard.
The comment letters are available for review in the docket for this
rulemaking. EPA received letters expressing support for the BPA
redesignation approval from the following: Texas Commission on
Environmental Quality, Austin; Executive Director, Southeast Texas
Regional Planning Commission (SETRPC), Beaumont; Director,
Transportation and Environmental Resources, SETRPC, Beaumont; Mayor,
City of Beaumont; President, Greater Beaumont Chamber of Commerce;
Executive Port Director, Port of Beaumont; Mayor, City of Bridge City;
Mayor, City of Port Neches; Mayor, City of West Orange; Director of
Public Works, City of West Orange; Mayor, City of Lumberton; Mayor,
City of Nederland; County Judge, Orange County; Jefferson County
Commissioners Court; County Judge, Hardin County; Texas State
Representative, District 21, Texas House of Representatives; President,
Caliber Solutions, Beaumont; Entergy Texas Inc., Beaumont; Goodyear
Tire & Rubber Company, Beaumont; Oiltaking Beaumont Partners, L.P.;
Chairman, Southeast Texas Plant Managers Forum, Nederland; Plant
Manager, Solvay Solexis, Inc., Orange; Huntsman Petrochemical LLC, Port
Neches; Sabine-Neches Navigation District, Nederland; and the Greater
El Paso Chamber of Commerce. EPA also received additional comments
submitted by the Greater El Paso Chamber of Commerce. We received no
adverse comments on the proposed rule.
Comment: The Greater El Paso Chamber of Commerce requested that EPA
take immediate action to make a determination that the El Paso County
one-hour nonattainment area has attained the revoked one-hour ozone
National Ambient Air Quality Standard (NAAQS).
Response: This rulemaking finalizes EPA's approval of Texas's
request to redesignate the BPA area to attainment for the 1997 8-hour
ozone standard and for a determination that the BPA area attained the
1-hour ozone standard. The commenter's request for a rulemaking
determining attainment of the 1-hour standard for El Paso is outside
the scope of our proposed action. EPA notes that we have previously
approved the section 110(a)(1) maintenance plan for the El Paso 1997 8-
hour ozone attainment area 74 FR 2387 (January 15, 2009).
Comment: The Greater El Paso Chamber of Commerce requested that EPA
take immediate action to find that the Prevention of Significant
Deterioration (PSD) program requirements are immediately effective in
El Paso County.
[[Page 64677]]
Response: As noted in the previous response to comment, EPA's
rulemaking is not focused on the El Paso 1997 8-hour maintenance area,
but on the redesignation of the BPA area for the 1997 8-hour ozone
standard and a determination of attainment for that area for the 1-hour
ozone standard. There is one respect, however, in which EPA wishes to
respond in order to harmonize and assure consistency of treatment for
areas with approved 1997 8-hour maintenance plans, whether they are
initially designated attainment (like El Paso) or redesignated to
attainment (like BPA) for that standard. EPA thus wishes to clarify a
statement it previously made in approving the El Paso section 110(a)(1)
maintenance plan for the 1997 8-hour standard 74 FR 2387 (January 15,
2009). In that notice, EPA stated that a separate analysis under
section 110(l) would be required to transition from a nonattainment New
Source Review (NSR) permitting program to a PSD permitting program.
Since that time, EPA has had further opportunity to consider the
applicable statutory and regulatory provisions and the decision in
South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir.
2006). As a result, we no longer believe that the Clean Air Act
requires a separate 110(l) analysis to replace 1-hour nonattainment NSR
with PSD once an area has been redesignated to attainment for the 1997
8-hour standard, or has an approved 110(a)(1) maintenance plan for that
standard. In sum, we believe that the approach to the nonattainment
NSR/PSD transition that we are adopting here with respect to BPA should
also be extended to El Paso. Thus, as long as the Texas NSR SIP is
clear that the PSD SIP requirements apply to an area such as El Paso,
then that is all that is required by EPA.
III. What action is EPA taking?
EPA is taking final action to approve several related actions under
the Act for the BPA ozone nonattainment area, consisting of Hardin,
Jefferson, and Orange counties. Consistent with the Act, EPA is taking
final action to determine that the BPA area has attained the 1997 8-
hour ozone NAAQS and to approve a request from the State of Texas to
redesignate the BPA area to attainment of the 1997 8-hour ozone
standard. This determination is based on complete, quality-assured, and
certified ambient air quality monitoring data for the 2006-2008 ozone
seasons that show that the 1997 8-hour ozone NAAQS has been attained in
the area. Preliminary data available for 2009 and 2010 indicate that
the area continues to attain the 1997 8-hour ozone NAAQS. EPA is also
finalizing a determination that the BPA area is meeting the 1-hour
ozone standard. This determination is based on complete, quality-
assured, and certified ambient air quality monitoring data for the
2006-2008 ozone seasons, as well as preliminary data available for 2009
and 2010 that indicate the area continues to attain the 1-hour ozone
NAAQS.
EPA is taking final action to approve the 2002 base year emissions
inventory as meeting the 1997 8-hour ozone requirement for the BPA 8-
hour ozone nonattainment area. We are approving the State's CFV program
equivalency demonstration as meeting the sole outstanding
antibacksliding 1-hour ozone requirement for the BPA serious 1-hour
ozone nonattainment area. We are finding that the BPA area, based upon
this final approval of this emissions inventory and the CFV program
equivalency determination, meets all the applicable CAA requirements
under section 110 and Part D for purposes of redesignation for the 1997
8-hour ozone NAAQS including all the applicable antibacksliding CAA
requirements for a serious 1-hour ozone nonattainment area. Further,
EPA is taking final action to approve into the SIP, as meeting section
175A and 107(d)(3)(E)(iv) of the Act, Texas' maintenance plan for the
BPA area for the 1997 8-hour ozone NAAQS. The maintenance plan shows
maintenance of the standard through 2021. Additionally, EPA is
approving the 2021 MVEB for NOX and VOCs shown in the table
in section I above, which was submitted by Texas for the BPA area in
conjunction with its redesignation request and maintenance plan.
Consequently, EPA is taking final action to approve the State's
request to redesignate the area from nonattainment to attainment for
the 1997 8-hour ozone NAAQS. After evaluating Texas' redesignation
request, EPA has determined that with this final approval of the above-
identified SIP elements and the maintenance plan, the area meets the
redesignation criteria set forth in section 107(d)(3)(E) and section
175A of the Act. The final approval of this redesignation request
changes the official designation in 40 CFR part 81 for the BPA area
from nonattainment to attainment for the 1997 8-hour ozone standard.
EPA also notes that with this final redesignation to attainment for the
1997 8-hour ozone NAAQS and this final determination of attainment for
the 1-hour ozone NAAQS, the 1-hour anti-backsliding obligations to
submit planning SIPs to meet the attainment demonstration and
reasonably available control measures (RACM) requirements, and the ROP
and contingency measures requirements, cease to apply. Finalizing the
1-hour ozone attainment determination suspends for the BPA area the
foregoing obligations, and they cease to apply upon EPA's final action
redesignating the BPA area to attainment for the 1997 8-hour ozone
standard. In addition, after final redesignation to attainment for the
1997-8-hour ozone standard, EPA does not require the continued
application of 1-hour anti-backsliding nonattainment NSR, if Texas
interprets its SIP as applying PSD to BPA in these circumstances.
EPA also is taking final action to approve the Post-1996 ROP Plan's
contingency measures and backfill failure-to-attain contingency
measures, and the removal from the Texas SIP under section 110(l) of a
VOC marine vessel loading contingency measure.
Additionally, EPA is clarifying statements made and the approach it
took with respect to the 1-hour ozone nonattainment NSR/PSD transition
in its approval of the El Paso 110(a)(1) maintenance plan.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, redesignation of an area to attainment and
the accompanying approval of a maintenance plan under section
107(d)(3)(E) are actions that affect the status of a geographical area
and do not impose any additional regulatory requirements on sources
beyond those imposed by State law. A redesignation to attainment does
not in and of itself create any new requirements, but rather results in
the applicability of requirements contained in the Clean Air Act for
areas that have been redesignated to attainment. Moreover, 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,
EPA's role is to approve State choices, provided that they meet the
criteria of the Clean Air Act. Accordingly, these actions merely do not
impose additional requirements beyond those imposed by State law and
the Clean Air Act. For that reason, these actions:
[[Page 64678]]
Are not ``significant regulatory actions'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are 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.);
Do not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are 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);
Are 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 Clean Air Act; and
Do 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, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. 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 December 20, 2010. 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
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Nitrogen dioxides,
Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control.
Dated: September 30, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
0
40 CFR parts 52 and 81 are amended as follows:
PART 52--[AMENDED]
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. Section 52.2270 is amended as follows:
0
a. The table in paragraph (c) entitled, ``EPA Approved Regulations in
the Texas SIP'' is amended under Chapter 115 (Reg 5), Subchapter C,
Division 1, by revising the entry for Section 115.219.
0
b. The second table in paragraph (e) entitled, ``EPA-Approved Non-
Regulatory Provisions and Quasi Regulatory Measures in the Texas SIP''
is amended by adding eight new entries at the end.
The revision and additions read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
EPA Approved Regulations in the Texas SIP
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State approval/
State citation Title/subject submittal date EPA approval date Explanation
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* * * * * * *
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Chapter 115 (Regt 5)--Control of Air Pollution from Volatile Organic Compounds
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* * * * * * *
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Subchapter C--Volatile Organic Compound Transfer Operations
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Division 1: Loading and Unloading of Volatile Organic Compounds
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* * * * * * *
Section 115.219................. Counties and 11/15/2006 10/20/2010 [Insert
Compliance. citation of
publication in
Federal Register].
[[Page 64679]]
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(e) * * *
* * * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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Applicable
Name of SIP provision geographic or State submittal/ EPA approval date Comments
nonattainment area effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Redesignation Request for the Beaumont/Port 12/10/2008 10/20/2010 [Insert .................
1997 8-hour Ozone NAAQS Arthur, TX. citation of
(Hardin, Jefferson, and Orange publication in
Counties). Federal Register].
Determination of Attainment for Beaumont/Port 12/10/2008 10/20/2010 [Insert
the 1-hour Ozone NAAQS (Hardin, Arthur, TX. citation of
Jefferson, and Orange Counties). publication in
Federal Register].
2002 Base Year Emissions Beaumont/Port 12/10/2008 10/20/2010 [Insert
Inventory. Arthur, TX. citation of
(1997 8-hour Ozone NAAQS)....... publication in
Federal Register].
Texas Clean-Fuel Vehicle Program Beaumont/Port 12/10/2008 10/20/2010 [Insert
Equivalency Demonstration (1- Arthur, TX. citation of
hour Ozone NAAQS). publication in
Federal Register].
Substitute Control Measures for Beaumont/Port 12/10/2008 10/20/2010 [Insert
the SIP-Approved Failure-to- Arthur, TX. citation of
attain Contingency Measures (1- publication in
hour Ozone NAAQS). Federal Register].
Post 1996 Rate of Progress Plan Beaumont/Port 11/16/2004 10/20/2010 [Insert
Contingency Measures (1-hour Arthur, TX. citation of
Ozone NAAQS). publication in
Federal Register].
Maintenance Plan (1997 8-hour Beaumont/Port 12/10/2008 10/20/2010 [Insert
Ozone NAAQS, CAA Section 175A). Arthur, TX. citation of
publication in
Federal Register].
2021 Motor Vehicle Emissions Beaumont/Port 12/10/2008 10/20/2010 [Insert
Budget (1997 8-hour Ozone Arthur, TX. citation of
NAAQS). publication in
Federal Register].
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0
3. Section 52.2275 is amended by adding paragraph (h) to read as
follows:
Sec. 52.2275 Control strategy and regulations: Ozone.
* * * * *
(h) Determination of attainment for the 1-hour ozone standard and
redesignation for the 1997 8-hour ozone standard. Effective November
19, 2010, EPA has determined that the Beaumont/Port Arthur ozone
nonattainment area has attained the 1-hour ozone National Ambient Air
Quality Standard (NAAQS) and has redesignated the area to attainment
for the 1997 8-hour ozone standard. With this final redesignation to
attainment for the 1997 8-hour ozone NAAQS and this final determination
of attainment for the 1-hour ozone NAAQS, the 1-hour anti-backsliding
obligations to submit planning SIPs to meet the attainment
demonstration and reasonably available control measures (RACM)
requirements, and the ROP and contingency measures requirements, cease
to apply.
PART 81--[AMENDED]
0
4. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
5. In Sec. 81.344, the table entitled, ``Texas-Ozone (8-Hour
Standard)'' is amended by: revising the entries for Beaumont/Port
Arthur TX; Revising footnote 3; and adding a new footnote 4 at the end
of the table.
The revisions and addition read as follows:
Sec. 81.344 Texas.
* * * * *
[[Page 64680]]
Texas-Ozone (8-Hour Standard)
----------------------------------------------------------------------------------------------------------------
Designation \a\ Category/ Classification
Designated area -----------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Beaumont/Port Arthur TX:
Hardin County................. (\3\) Attainment........... (\3\)
Jefferson County.............. (\3\) Attainment........... (\3\)
Orange County................. (\3\) Attainment........... (\3\)
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\3\ Effective November 19, 2010.
\4\ Effective October 31, 2008.
* * * * *
[FR Doc. 2010-26261 Filed 10-19-10; 8:45 am]
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