Approval and Promulgation of State Implementation Plans; Texas; Revision to the Rate of Progress Plan for the Houston/Galveston (HGA) Ozone Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is approving revisions to the Texas State Implementation Plan (SIP) Post-1999 Rate of Progress (ROP) Plan, the 1990 Base Year Inventory, and the Motor Vehicle Emissions Budgets (MVEB) established by the ROP Plan, for the Houston Galveston (HGA) ozone nonattainment Area submitted November 16, 2004. The intended effect of this action is to approve revisions submitted by the State of Texas to satisfy the reasonable further progress requirements for 1-hour ozone nonattainment areas classified as severe and demonstrate further progress in reducing ozone precursors. We are approving these revisions in accordance with the requirements of the Federal Clean Air Act (the Act).

DATES:

This rule is effective on April 15, 2005, without further notice, unless EPA receives relevant adverse comment by March 16, 2005. If EPA receives such comment, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES:

Submit your comments, identified by Regional Material in EDocket (RME) ID No. R06-OAR-2005-TX-0004, by one of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

Agency Web Site: http://docket.epa.gov/rmepub/ Regional Material in EDocket (RME), EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Once in the system, select “quick search,” then key in the appropriate RME Docket identification number. Follow the on-line instructions for submitting comments.

U.S. EPA Region 6 “Contact Us” Web Site: http://epa.gov/region6/r6coment.htm. Please click on “6PD” (Multimedia) and select “Air” before submitting comments.

E-mail: Mr. Thomas Diggs at diggs.thomas@epa.gov. Please also cc the person listed in the FOR FURTHER INFORMATION CONTACT section below.

Fax: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), at fax number 214-665-7263.

Mail: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

Hand or Courier Delivery: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of 8 a.m. and 4 p.m. weekdays except for legal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Regional Material in EDocket (RME) ID No. R6-OAR-2005-TX-0004 The EPA's policy is that all comments received will be included in the public file without change and may be made available online at http://docket.epa.gov/rmepub/,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Do not submit information through Regional Material in EDocket (RME), regulations.gov, or e-mail if you believe that it is CBI or otherwise protected from disclosure. The EPA RME Web site and the Federal regulations.gov are “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through RME or regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public file and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the Regional Material in EDocket (RME) index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly available, i.e., CBI 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 in RME or in the official file which is available at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at (214) 665-7253 to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15 cent per page fee for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment: Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT:

Guy Donaldson, Air Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7242, donaldson.guy@epa.gov.

SUPPLEMENTARY INFORMATION:

What Action Are We Taking?

We are approving revisions to the HGA area post-1999 ROP Plan for the 2000-2002, 2003-2005 and 2006-2007 time periods submitted in a letter dated November 16, 2004. The post-1999 ROP plan is designed to achieve an additional 9 percent reduction in emissions between 1999 and 2002, a further 9 percent reduction between 2002 and 2005, and another further 9 percent reduction between 2005 and 2007. We are also approving revisions to the 1990 base year inventory and the ROP Plan's associated Motor Vehicle Emissions Budgets (MVEB) for 2002, 2005 and 2007. This plan replaces previous versions of the post-1999 rate of progress plan, the 1990 base year inventory, and mobile vehicle emissions budgets contained in the post-1999 ROP plan, that were approved November 14, 2001 (66 FR 57160).

Why Are These Revisions Necessary?

On November 16, 2004, the State of Texas submitted the proposed revisions reflecting the use of EPA's new MOBILE6 model. We released this new model on January 29, 2002. (See 67 FR at 4254). Using MOBILE6 to calculate the 2002, 2005 and 2007 ROP target levels requires a revision to the 1990 base year inventory which is the planning base line from which the ROP targets are calculated. Texas updated the 1990 base year inventory for the HGA area to reflect the use of MOBILE6. This affected the base year on-road mobile source inventory as well as the projected emissions reductions in 2005 and 2007 from mobile source control programs. Texas also made a number of other changes as a result of updated information.

These revisions result from Texas incorporating the following updated information into the plan:

• New on-road mobile emissions estimates based on the latest emissions model, MOBILE6, and the effects of the latest census information and most recent planning assumptions.
• New off-road mobile emission estimates using the new NONROAD emissions model and several area specific activity level studies.
• New future emission estimates because three rural counties, Waller, Liberty and Chambers, have been dropped from the I/M program.
• The future NO_X estimates include relaxation of the industrial NO_X rules from a nominal 90% control to a nominal 80% control.
• New future emissions estimates that do not include emission reduction projections from the Texas Low Emission Diesel program. Note, Low Emission Diesel is still required by the TCEQ rules. It is just not credited to the Rate of Progress plan.

What Are the Clean Air Act's Rate of Progress Requirements?

Section 182(c)(2) of the CAA requires each State to submit for each serious and above ozone nonattainment area a SIP revision, which describes, how the area will achieve an actual volatile organic compound (VOC) emission reduction from the baseline emissions of at least 3 percent of baseline emissions per year averaged over each consecutive 3-year period beginning 6 years after enactment (i.e., November 15, 1996) until the area's attainment date. The Clean Air Act does not allow States to take credit for emission reductions due to Federal Motor Vehicle Controls adopted prior to 1990 or corrections to reasonably available control technology or vehicle inspection and maintenance programs. Section 182(c)(2)(C) explains the conditions under which reductions of oxides of nitrogen (NO_X) may be substituted for reductions in VOC emissions for post 1996 and post 1999 ROP plans.

Why Control Volatile Organic Compounds and Oxides of Nitrogen?

VOCs participate in chemical reactions with oxides of nitrogen (NO_X) and oxygen in the atmosphere in the presence of sunlight to form ozone, a key component of urban smog. Inhaling even low levels of ozone can trigger a variety of health problems including chest pains, coughing, nausea, throat irritation, and congestion. It can also worsen bronchitis, asthma and reduce lung capacity.

EPA has established National Ambient Air Quality Standards for Ozone. The previously adoptedStandard of 0.12 ppm averaged over an 1 hour period is being phased out and replaced with a newStandard of 0.08 ppm averaged over an 8 hour period. The 1-hour standard will be revoked on June 15, 2005.

Areas that do not meet a National Ambient Air Quality Standard are subject to nonattainment requirements of the Clean Air Act. Air quality in HGA does not meet either the 1-hour or the 8-hour NAAQS for ozone. As such, the area is subject to the ROP requirements of section 182 of the Clean Air Act. The revised ROP plan approved today was developed in response to a 1-hour ozone requirement. Under the antibacksliding provisions of the Phase I ozone implementation rule, published on April 30, 2004 (69 FR 69 FR 23951), these rate of progress requirements must remain in effect. In the future, TCEQ will have to submit a new Rate of Progress Plan to meet the 8 hour requirements.

How Has Texas Demonstrated Compliance With Rate of Progress Requirements?

Table 1 and Table 2 show the target levels and the projected controlled VOC and NO_X emissions for each of the milestone years in the SIP. EPA has articulated its policy regarding the use of MOBILE6 in SIP development in its “Policy Guidance on the Use of MOBILE6 for SIP Development and Transportation Conformity.”

The target levels are calculated by subtracting the needed percentage reductions for each ROP milestone year and any non-creditable reductions from the 1990 base year levels. Projected future-year emissions for 2005 and 2007 were developed by projecting from the State's 2002 Emission Inventory—actual emission inventory estimates reported for 2002. The projections for 2005 and 2007 were determined based on growth estimates using EPA approved methodologies and imposition of Federal and SIP-approved state enforceable controls. The two tables demonstrate that estimated emissions in 2002 and projected emissions in 2005 and 2007 are well below the target levels for each of the milestone years. In other words, the TCEQ has shown that there will be more emission reductions than are required to meet each milestone's target level. For a complete discussion of EPA's evaluation of TCEQ's calculation of target levels and emission projections, see the technical support document for this action.

The reductions in projected emissions shown in Table 1 result from a variety of measures including post-1990 Federal motor vehicle control programs, NO_X reasonably available control technology, and controls on lean burn engines. The revised ROP Plan does not rely upon any new controls that were not part of the previously approved ROP plan; rather, the changes in the numbers are mainly due to the MOBILE6 revised emissions projections for the on road motor vehicle emissions and the adjustments to State's rules for I/M and industrial NO_X emissions. As in the previous plan, the largest contributor to NO_X emission reductions continues to be the controls on industrial NO_X emissions. This continues to be the case even with the relaxation of the rules from 90 to 80% nominal control.

It is worth noting that the 2005 and 2007 projections above do not include all of the emission reductions expectedin the Houston/Galveston area including reductions from the Texas Emission Reduction Program.

As can be seen in Table 2, the VOC emission reductions were largely realized between 1990 and 2002. These VOC reductions result from post-1990 Federal motor vehicle emission control programs, the Texas I/M program and a variety of point source measures implemented as part of the area's ROP plans for the 1990-1996 and 1997-1999 time periods. These plans were previously approved November 14, 2001 (66 FR 57160) and April 25, 2001 (66 FR 20746). The revised numbers are due primarily to the use of MOBILE6 and improvements to the area and non-road inventories.

What Are the Revisions to the 1990 Base Year Inventory?

Table 3 summarizes the changes to the approved 1990 base year inventory. For a full discussion of EPA's evaluation, see the technical support document for this action.

The columns denoted as old were the 1990 base year emission inventories approved November 14, 2001 (66 FR 57160). The changes to the inventory result from the use of the more recent version of EPA's model for estimating on-road mobile source emissions, MOBILE6, the more recent emissions model for missions from off-road mobile source, NONROAD, and several area-specific studies of activity levels.

What Are the Motor Vehicle Emissions Budgets Established in the Plan?

Table 4 documents the motor vehicle emissions budgets that have been established by this post-1999 ROP Plan revision. A motor vehicle emission budget is that portion of the total allowable emissions defined in the SIP revision allocated to on-road mobile sources for a certain date for the purpose of meeting the purpose of the SIP, in this case reasonable further progress towards attainment of the NAAQS. EPA's conformity rule (40 CFR part 51, subpart T and part 93, subpart A) require that transportation plans, programs and projects in nonattainment or maintenance areas conform to the SIP. The motor vehicle emissions budget is one mechanism EPA has identified for demonstrating conformity. Upon the effective date of this SIP approval, all future transportation improvement programs and long range transportation plans for the Houston/Galveston area will have to show conformity to the budgets in this plan; previous budgets approved or found adequate will no longer be applicable.

Final Action

The EPA is approving the aforementioned changes to the Texas SIP because the revisions are consistent with the Act and EPA regulatory requirements. The EPA is publishing this rule without prior proposal because the EPA views this as a non-controversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective April 15, 2005 without further notice, unless EPA receives relevant adverse comment by March 16, 2005.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 15, 2005, and no further action will be taken on the proposed rule.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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. section 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 April 15, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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
• Intergovernmental relations
• Reporting and recordkeeping requirements

40 CFR part 52 is 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

2. The second table in § 52.2270(e) entitled “EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP” is amended as follows:

a. By removing the entry for “Post 1999 Rate of Progress Plans and associated contingency measures” for the Houston/Galveston, TX, area approved by EPA 11/14/01 at 66 FR 57195;

b. By adding two new entries to the end of the table for “Post 1999 Rate of Progress Plans” and for “Revisions to the 1990 Base Year Inventory,” both for the Houston/Galveston, TX area.

The additions read as follows: