02-30764. Approval and Promulgation of Implementation Plans for Texas: Transportation Control Measures Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

In this final action, the EPA is approving a revision to the Texas State Implementation Plan (SIP) that contains the transportation control measures (TCM) rule. The requirements in the State TCM rule address the roles and responsibilities of the Metropolitan Planning Organizations (MPO), implementing transportation agencies, and provide a method for substitution of specific TCMs without a SIP revision in the nonattainment and maintenance areas. The TCM rule is intended to promote effective implementation of TCMs, provide consequences for non-implementation, establish a streamline TCM substitution process and approval, and increase interaction between the Texas Commission on Environmental Quality (TCEQ) ^[1] and the MPOs in the air quality transportation planning process at the local levels. The EPA is approving this SIP revision under section 110(k) and 182 of the Clean Air Act (CAA). The rationale for the final approval action and other information are provided in this document.

EFFECTIVE DATE:

This final rule is effective on January 6, 2003.

ADDRESSES:

Copies of the relevant material for this action are available for inspection during normal business hours at the following locations. Persons interested in examining these documents should make an appointment at least 24 hours before the visiting day.

Environmental Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Suite 700, Dallas, TX 75202-2377.

Texas Commission on Environmental Quality, 12100 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT:

Joe Kordzi, Air Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” and “our” means EPA.

Table of Contents

I. What Is The Background for This Action?

II. What Did The State Submit and How Did We Evaluate It?

III. Responses To Comments On The Direct Final Action.

IV. What Is Our Final Action?

V. What administrative requirements apply for this action?

I. What Is the Background for This Action?

Section 182(d)(1)(A) of the CAA requires States containing ozone nonattainment areas which are classified as “severe” pursuant to section 181(a) of the CAA to adopt TCM and transportation control strategies to offset any growth in emissions from growth in Vehicle Miles Traveled (VMT) or number of vehicle trips and to attain reductions in motor vehicle emissions (in combination with other emission reduction requirements) as necessary to comply with the CAA's Reasonable Further Progress (RFP) milestones and attainment requirements. The requirements for establishing a VMT Offset program are discussed in the General Preamble to Title I of the CAA (57 FR 13498), April 16, 1992, and in section 182(d)(1)(A).

In addition, the states may adopt TCMs as control strategies in order to meet the requirements of sections 182(b) and 182(c) of the CAA for RFP and attainment SIPs in the ozone nonattainment areas. The EPA can only accept the emission credits resulting from such TCMs if the State can provide adequate evidence that it will have authority to enforce the TCMs which are identified as a part of the control strategy in the RFP and attainment demonstration SIPs for meeting the ozone standard.^[2] The State of Texas has adopted certain TCMs for meeting the RFP and attainment demonstration requirements under sections 182(b) and (c) of the CAA.

Our action today addresses the State's authority, processes, procedures, and responsibilities of each agency regarding implementation and substitution of the TCMs in any SIP in the designated nonattainment or maintenance areas.

II. What Did the State Submit and How Did We Evaluate It?

The Governor of Texas submitted the TCM SIP revision on May 17, 2000. The TCEQ adopted the Texas TCM rule on May 9, 2000, after appropriate public notice and hearing. The TCM rule consists of two parts. 30 Texas Administrative Code (TAC) Chapter 114 Section 114.5 includes “Transportation Planning Definitions.” 30 TAC Chapter 114 Section 114.270 contains “Transportation Control Measures,” which addresses the roles and responsibilities of the MPOs and implementing transportation agencies in nonattainment and maintenance areas and provides a method for the substitution of TCMs. The TCEQ developed the TCM rule in cooperation with the MPOs, the Texas Department of Transportation, and in consultation with the Federal Highway Administration, Federal Transit Administration, and the EPA. The State TCM rule identifies the responsibility of each agency and sets forth the procedures and processes for selection of the TCMs, inclusion in the SIP, periodic reporting and record-keeping, corrective measures, emissions reductions and TCM effectiveness, and consequences of non-implementation. In addition, the rule specifically establishes processes and procedures for substitution of any TCM in the SIP that cannot be implemented for any reason by the implementation date in the SIP. The TCM rule guarantees that substituted TCMs will be both equivalent ^[3] in terms of emissions, and enforceable.^[4] The procedures for substitution of the TCMs require public notice and comment period and consultation, but do not require a formal SIP revision and approval by the EPA.

We have reviewed the State TCM processes and procedures, and we have evaluated the provisions of the rule based on the criteria provided in the CAA for development of SIPs in the nonattainment and maintenance areas. We note that neither the CAA nor the EPA rules require the State to develop, and submit as a SIP revision, a TCM rule. Our evaluation is specifically based on sections 110, 176, 182, and consistency of this rule with the CAA. Based on this review, we have determined that the TCEQ's TCM rule provides adequate authority and procedures for implementation and substitution of TCMs in the designated nonattainment and maintenance areas including how equivalency is determined, public participation and EPA concurrence. Therefore, we are approving this SIP revision.

III. Responses to Comments on the Direct Final Action

On July 16, 2001, the EPA published a direct final rule approving this revision to the Texas SIP containing the TCM rule. This rule contained the condition that if any adverse comments were received by the end of the public comment period on August 15, 2001, the direct final rule would be withdrawn, and we would respond to the comments in a subsequent final action. One set of comments was received from the Committees for Land, Air, Water, and Species (CLAWS). The following summarizes the comments and EPA's response to these comments:

Comment 1: This comment states that the criteria for when a TCM substitution is appropriate must be specified. Substitution “for any reason” is not appropriate. MPOs can simply evade non-implementation issues through abuse of the substitution process.

Response: 30 TAC section 114.270(f)(1)(A) requires that a substitute TCM provide for equivalent or greater emissions reductions than the TCM to be replaced. EPA feels that this prevents MPOs from either substituting a TCM with one that does not provide an equivalent level of emissions reductions, or simply withdrawing or failing to implement a TCM.

Furthermore, 30 TAC section 114.270(c) requires that all TCMs be developed, coordinated, funded, approved, implemented, tracked, evaluated, and monitored in accordance with 30 TAC section 114.260 (relating to Transportation Conformity); Title 40 Code of Federal Regulations, part 93 (Conformity to State or Federal Implementation Plans of Transportation Plans); the Federal Clean Air Act; and the EPA TCM SIP approval criteria listed in the EPA guidance document “Transportation Control Measures: State Implementation Plan Guidance, EPA 450/2-89-020, September 1990.” EPA believes that this ensures that the TCM substitution process will be adequately monitored, tracked, and if necessary properly enforced.

Comment 2: This comment states that the public should have a representative in the working group that evaluates alternative TCMs.

Response: A public hearing is required by 30 TAC section 114.270(f)(5) prior to a substitution being made. The public will have a minimum of 30 days prior to the hearing to submit comments. Comments can also be submitted during the public hearing itself. EPA believes that this affords the public ample opportunity to be engaged in the TCM substitution process.

Comment 3: This comment states that EPA's concurrence period of 14 days is too short and unreasonable. The period should be at least 60 days. EPA must make an independent finding of TCM equivalency and publish it in the Federal Register.

Response: As required by 30 TAC sections 114.270(f)(3), and 114.270(f)(4), in order to identify and evaluate possible substitute TCMs, the MPO must form a committee or working group which will consult with EPA Region 6. The MPO, the TCEQ, and the EPA Region 6 must concur with the appropriateness and equivalency of the substitute TCM. Consequently, EPA will be fully engaged in the TCM substitution process prior to the final 14 day concurrence period cited in the comment, and will have ample opportunity to conduct its analysis.

Regarding the second part of the question, EPA does not agree that it must conduct future rulemaking on TCM substitution. In approving the rule today as part of the Texas SIP, EPA finds that under the rule, all TCM substitutions will produce equivalent emission reductions and meet all TCM approval requirements or will be in violation of the approved SIP. The principal reasons for the TCM substitution process are to (1) allow MPOs flexibility in meeting emissions requirements, and (2) to encourage the inclusion of TCMs in the SIP. EPA will be engaged in this process to ensure TCM equivalency of any substitution. If EPA were to publish each TCM finding in the Federal Register, along with the presumed public comment period typical of such announcements, much of the intended benefits of a streamlined TCM substitution process would be lost. EPA believes that the State's requirements for a 30-day comment period and public hearing already provide ample opportunity for public involvement in the substitution process.

Comment 4: This comment states substitute TCM equivalency must be evaluated in units of emissions reductions, VMT reductions, and trip start reductions.

Response: As stated in the response to Comment 1, 30 TAC section 114.270(f)(1) (A) requires that a substitute TCM must provide for equivalent or greater emissions reductions than the TCM to be replaced. In addition 30 TAC section 114.270(f)(2) requires that the analysis of substitute TCMs must be consistent with the methodology used for evaluating TCMs in the SIP, including the use of the latest emissions modeling techniques. EPA believes that these requirements will ensure that TCM equivalency will be adequately evaluated.

Comment 5: This comment states that any TCM substitution analysis and evaluation must include a comparative environmental and social justice impact process. An environmental justice representative should be a member of the working group.

Response: EPA fully supports Executive Order 12898, concerning environmental justice. In addition, the Federal Transit Administration and the Federal Highway Administration each have environmental justice policies, to which State Departments of Transportation that receive federal funds must adhere.

The Agency defines environmental justice to mean the fair treatment of people of all races, cultures, and incomes with respect to the development, implementation, and enforcement of environmental laws and policies, and their meaningful involvement in the decision making processes of the government.

EPA encourages the MPO, in the formation of the committee or working group that will evaluate possible substitute TCMs, (as required by 30 TAC sections 114.270(f)(3)) to include representatives from the portions of the community or communities affected by the TCM substitution and those concerned about environmental justice issues. EPA believes that since the public will have, as provided for by 30 TAC section 114.270(f)(5), a minimum of 30 days prior to the hearing to submit comments, and an opportunity to submit comments during the public hearing itself, ample opportunity for meaningful public involvement in the TCM substitution process will be provided.

Comment 6: This comment states the language concerning “implementation date” must be clarified. The initiation and full implementation of substitute TCMs should be undertaken in the same time frame as the original TCM. If this is not possible, the completion of the substitute TCM's full implementation should occur at the same time as the original TCM. If this is not possible, full implementation should occur as expeditiously as practicable. Any temporal loss of emissions reductions must be backfilled through ERC bank purchases or other offsetting emissions reductions to meet SIP timetables for emissions reductions.

Response: As required by 30 TAC sections 114.270(f)(1)(B) and 114.270(f)(1)(C), a substitute TCM must provide for implementation in the time frame established for the TCM in the SIP. If the implementation date has already passed, measures that require funding must be included in the first year of the next transportation improvement program and metropolitan transportation plan adopted by the MPO. Full implementation must occur not later than two years from the scheduled implementation date of the original TCM. EPA believes that these requirements will ensure that substitute TCMs are implemented as expeditiously as possible, therefore participation in an Emission Reduction Credit (ERC) bank is unnecessary.

Comment 7: This comment states that the enforceability of the substituted and substituting TCM is not evident from the rule. States cannot unilaterally amend their SIPs and rescind a TCM.

Response: Regarding the enforceability issue, 30 TAC section 114.270(f)(1)(D) requires that a substitute TCM must provide for evidence of adequate personnel, funding, and authority under state or local law to implement, monitor, and enforce the measures in order for the TCEQ to approve the substitute TCM. EPA believes that this will ensure that the substituted and substituting TCM will be adequately enforced. Additionally, both the EPA and citizens can take appropriate action for any violation of the approved SIP, which includes violations of the TCM substitution process under sections 113(a)(1), 113(a)(2), and 304 of the CAA. Regarding the second part of the comment, the purpose of the TCM substitution process is to allow substitutions, through an approval process that has been approved into the SIP, without having a separate federal SIP rulemaking. Also, the TCM substitution process is not unilateral, in that the TCEQ, EPA, the MPO, and the public are all involved, and the process has been approved into the SIP as providing for both equivalency in terms of emissions and enforceability of the substituted TCMs.

Comment 8: This comment states that EPA has not provided sufficient analysis of the legal authority to approve such a rule. The CAA requires all SIP measures to be enforceable at all times. The Federal Register notice lacks essential analysis of the proposed action.

A related comment states that the proposed action has national ramifications. While the benefits of flexibility in TCM implementation are significant, this must comport with the requirements of the CAA. As proposed, the rule fails to address enforceability and the issues noted above.

Response: EPA believes that a replicable procedure for enforceable TCM substitution is consistent with existing EPA SIP policy. As stated in the Direct Final Rule (66 FR 36921, July 16, 2001) neither the CAA nor the EPA rules require the State to develop, and submit as a SIP revision, a TCM rule. This evaluation is specifically based on the consistency of this rule with sections 110, 176, and 182 of the CAA. Based on this review, we have determined that the TCEQ's TCM rule provides adequate authority and procedures for implementation and substitution of TCMs in the designated nonattainment and maintenance areas including how equivalency is determined, public participation and EPA concurrence. The issue of enforceability is addressed in the response to Comment 7.

IV. What Is Our Final Action?

We are approving the Texas TCM rule which addresses the roles and responsibilities of the MPOs, implementing transportation agencies, and provides a method for substitution of the TCMs without a SIP revision in the nonattainment and maintenance areas. We have evaluated this SIP revision and have determined that the State's rules in TAC 30 Chapter 114 sections 114.5 and 114.270 provide adequate processes and procedures consistent with the CAA for implementing, tracking, and substitution of the TCMs, with equivalent control measures, which are used as a control strategy in the SIPs for attainment and maintenance of the NAAQS. The TCEQ conducted appropriate public participation during development and adoption of this rule at the local level.

V. What Administrative Requirements Apply for This Action?

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 CAA. 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 CAA. 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 CAA. 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. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 3, 2003. 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
• Carbon monoxide
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: November 21, 2002.

Lawrence E. Starfield,

Acting Regional Administrator, Region 6.

Part 52, chapter I, title 40 of the Code of Federal Regulations 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 table in § 52.2270(c) entitled “EPA Approved Regulations in the Texas SIP” is amended:

a. Under Chapter 114, Subchapter A, by adding new section 114.5, Transportation Planning Definition, immediately following section 114.3;

b. Under Chapter 114, Subchapter G, by adding new section 114.270, Transportation Control Measures, immediately after Section 114.260.

3. The table in § 52.2270(e) entitled “EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP” is amended by adding to the end of the table an entry for “Transportation Control Measures SIP Revision.”

The additions read as follows:

§ 52.2270

Identification of plan.

* * * * *

(c) * * *

EPA Approved Regulations in the Texas SIP

State citation	Title/subject	State approval/submittal data	EPA approval date	Explanation
*         *         *         *         *         *         *
Chapter 114 (Reg 4)—Control of Air Pollution from Motor Vehicles
Subchapter A—Definitions
Section 114.5	Transportation Planning Definition	05/03/2000	12/5/02 and FR page cite.
*         *         *         *         *         *         *
Subchapter G—Transportation Planning
*         *         *         *         *         *         *
Section 114.270	Transportation Control Measures	05/03/2000	12/5/02 and FR page cite.
*         *         *         *         *         *         *

(e) * * *

EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP

Name of SIP provision	Applicable geographic or nonattainment area	State submittal/effective date	EPA approval date	Comments
*         *         *         *         *         *         *
Transportation Control Measures SIP Revision	All Nonattainment and Maintenance Areas	05/09/2000	12/5/02 and FR page cite.	Chapter 1. Introduction, Chapter 2. General, and Chapter 3. Criteria and Procedures.

Footnotes

1.  Recently, this organization changed its name from Texas Natural Resource Conservation Commission (TNRCC).

2.  See section 110(a)(2)(A) of the CAA.

3.  30 TAC section 114.270(f)(1)(A).

4.  30 TAC section 114.270(f)(1)(D).