E8-25335. Approval and Promulgation of Air Quality Implementation Plans; Texas; Texas Low-Emission Diesel Fuel Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving three revisions to the State Implementation Plan (SIP) for the state of Texas. These revisions make changes to the Texas Low-Emission Diesel (TXLED) Fuel program. The revisions establish a replicable procedure for the State to approve Alternative Emission Reduction Plans (AERPs), extend the date of state approvals, and bring marine diesel fuels under the TXLED program. The revisions also refine and clarify testing requirements. The changes being approved will contribute to the reduction of oxides of nitrogen (NO_X) in the covered area. EPA is approving the revisions pursuant to Clean Air Act (CAA) section 211 and the Energy Policy Act (EPAct).

DATES:

This final rule is effective on November 24, 2008.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R06-OAR-2006-0665. All documents in the docket are listed on the www.regulations.gov,, web site. Although listed in the index, some information is 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 www.regulations.gov or in hard copy at the Air Planning Section (6PD-L), U.S. Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection 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 to make an appointment. If possible, please make the appointment at least two working days in advance of your visit.

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 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT:

Sandra Rennie, Air Planning Section, (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used, we mean EPA.

Outline

I. What Action Is EPA Taking?

II. What Is the Background for This Action?

III. What Comments Were Received During the Public Comment Period, February 12, 2008, to March 13, 2008?

IV. Final Action

V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

Today we are approving revisions to the TXLED rule submitted May 15, 2006, June 11, 2007, and June 13, 2007. The revisions establish a replicable procedure for the State to evaluate Alternative Emission Reduction Plans (AERPs) so that changes to those plans do not have to be submitted to EPA as a SIP revision. The revisions also extend the expiration date for state-approved AERPs and require two forms of marine diesel fuel to be subject to TXLED requirements along with other less substantive revisions to the text of the rule.

II. What Is the Background for This Action?

In a Federal Register notice published on June 6, 2006 (71 FR 32532), we discussed an interpretation of the Energy Policy Act (EPAct) provisions, which was based on a fuel type interpretation. We published a draft list identifying the total number of fuels approved into all SIPs as of September 1, 2004, pursuant to section 211(c)(4)(C)(i). On February 12, 2008, we proposed approval of Texas's SIP revision as consistent with our June 6, 2006, interpretation of the EPAct provisions. On December 21, 2006, EPA Administrator Stephen L. Johnson signed a Federal Register notice containing EPA's final interpretation of the EPAct provisions. The final notice was published in the Federal Register on December 28, 2006. (See 71 FR 78192.) Our approval of Texas's revision to the TXLED program is consistent with EPA's final promulgated interpretation of the EPAct.

Under the Clean Air Act, state fuel programs respecting a fuel characteristic or component that we regulate under section 211(c)(1) are preempted. Section 211(c)(4)(A) of the Clean Air Act (CAA); See also 40 CFR 80.1(b). EPA may waive preemption through approval of the fuel program into a SIP. Approval into a SIP requires a demonstration that the state fuel program is “necessary” to achieve a NAAQS that is implemented by the SIP. CAA section 211(c)(4)(C)(i). The Energy Policy Act of 2005 (EPAct), amended CAA section 211(c)(4)(C) by requiring EPA, in consultation with the Department of Energy, to determine the total number of fuels approved into all SIPs as of September 1, 2004, and publish a list of such fuels, including the state and Petroleum Administration for Defense District (PADD) in which they are used, in the Federal Register for review and comment. CAA section 211(c)(4)(C)(v)(II). We have since published a final list of the total number of state fuels approved into SIPs as of September 1, 2004. 71 FR 78192, 78199 (December 28, 2006). Texas Low Emission Diesel fuel (TXLED) is on this final list of the total number of state fuels approved under CAA section 211(c)(4)(C) as of September 1, 2004. (71 FR 78199.) In general, our listing of fuel types was based on the “required specific fuel components, specifications or limits of each fuel type.” 71 FR 78194.

Congress also placed the following three additional restrictions on our authority to waive preemption by approving a state fuel as necessary for attainment of a NAAQS. First, our approval of a state fuel program must not cause an increase to the total number of fuels approved into all SIPs as of September 1, 2004. Second, if our approval will not increase the total number of fuels on the list, because the total number of fuels in SIPs is below the number of fuels we approved as of the September 1, 2004, we must make a finding, after consultation with DOE, that the state fuel program will not cause supply or distribution problems or have significant adverse impacts on fuel producibility in the affected or contiguous areas. Third, with the exception of 7.0 psi RVP, we may not approve a state fuel unless that fuel is already approved in at least one SIP in the applicable PADD. CAA Section 211(c)(4)(C)(v)(I), (IV) and (V). Our approval of a 7.0 psi RVP fuel would, however, be subject to the other EPAct restrictions.

We approved the TXLED fuel program requirements on November 14, 2001 based on our finding that the requirements were necessary for the achievement of the ozone standards by 110 counties in eastern and central Texas. 66 FR 57196 (November 14, 2001). Compliance with TXLED is achieved through any one of the following three options:

(i) Producing diesel fuel that meets parameter specifications for sulfur,^[1] aromatics and cetane number, specifications for California Air Resources Board (CARB) certified diesel fuel; (ii) producing alternative diesel fuel formulations that achieve comparable NO_X and PM emissions reductions; or (iii) using approved alternative emissions reduction plans that achieve comparable emissions reductions.

Today's action approves the revisions to TXLED that were submitted by the State on May 15, 2006, June 11, 2007, and June 13, 2007. The revisions are to TXLED rules found in 30 TAC 114.6, 114.312, 114.313, 114.315, 114.316, 114.317, 114.318, and 114.319. These revisions include the clarification of definitions of additive, final blend, gasoline and LED; the expansion of the definition of diesel fuel to include diesel marine fuel and marine gas oil; removal of the requirement to compare VOCs emissions from the alternative fuel formulation testing requirements; amendments of references to certain State law provisions; specification of the correlation equation for ASTM Test Method D5186, which is the test method for CARB diesel; addition of fuel properties to the engine testing requirements for alternative fuel formulations; addition of the requirement for consultation and prior EPA approval for alternative test methods; clarification of specific criteria for satisfactory demonstration of alternative formulations; changing the record keeping and monitoring requirements to require a demonstration of the achieved emissions reductions; specifying replicable procedures for alternative emissions reduction plans in order to eliminate the requirement for EPA approval of alternative emissions reductions plans; and specifying the methodology and equations for the use of the alternative emission reduction plan, such as early gasoline sulfur credits, as a compliance option.

As a general matter, revisions to an approved state fuel program that are within the scope of the previous necessity finding do not require another “necessity” demonstration under CAA section 211(c)(4)(C)(i). In addition, revisions that do not result in a “new fuel type” within the meaning of CAA section 211(c)(4)(C) would not implicate the restrictions discussed earlier. These revisions to the TXLED rule are either not preempted or are within the scope of the “necessity” demonstration at the time of our approval. These rule changes do not result in a “new fuel type” within the meaning of CAA section 211(c)(4)(C)(v)(II), and therefore, do not implicate other EPAct restrictions as discussed earlier.

These revisions either do not raise preemption issues under CAA 211(c)(4)(C), or are administrative in nature because they improve and strengthen an existing SIP-approved program by clarifying provisions, and updating references. We also believe that these revisions do not result in changes to “required specific fuel components, specifications or limits,” or in other words either the nature or character of the TXLED program, and thus does not result in a “new fuel type.” For example, the elimination of the VOC emissions testing comparison requirement does not raise preemption issues because EPA has not prescribed controls for VOCs ^[2] content in diesel fuel, under CAA section 211(c)(1). Also, Texas sought and EPA granted a waiver of preemption for cetane number, hydrocarbons and sulfur in on-road diesel fuel only. Similarly, the expansion of the definition of TXLED to include marine diesel and marine gas oil does not raise preemption concerns because CAA section 211(c)(4)(A) is applicable only to state controls respecting motor vehicle fuel characteristic or components. Other definitions and citations to State law provide further clarification on the existing TXLED requirements. The correlation equation is the same equation specified in CARB rules for the certification of CARB diesel fuel and as such provides for consistency with regard to those manufacturers that choose to use CARB diesel as a compliance option. The engine test revisions enhance existing engine tests requirements for alternative diesel formulations, now require prior EPA approval for alternative test methods, and provide for additional fuel properties that must be accounted for in characterizing the candidate fuel used in alternative fuel formulation testing. Similarly, the monitoring and recordkeeping requirements now require a demonstration of how emissions reductions are achieved in an alternative emissions reduction plan as compared to the superseded requirement, which only called for documentation of the quantity of additive used in alternative fuel formulations.

We approved the original TXLED rule on 11/14/01 (66 FR 57196) in conjunction with the Houston-Galveston One-Hour Attainment Demonstration SIP. We also approved revisions to this rule on April 6, 2005 (70 FR 17321), and on October 6, 2005 (70 FR 58325). This document concerns control of air pollution of NO_X and VOCs from mobile sources in 110 counties of East Texas where the rule applies. This low-emission diesel fuel program applies to both on-road and non-road vehicles in the affected area.

III. What Comments Were Received During the Public Comment Period, February 12, 2008, to March 13, 2008?

We received one comment from the Early Action Compact Task Force. The commenter stated that the Austin area may stand to lose significant NO_X reductions during the critical monitoring period used to determine ozone attainment classification status because Alternative Emission Reduction Plans (AERPs) extend to 2010.

Response: The State Legislature mandated that the TXLED program allow fuel producers to implement alternative emission reduction plans that demonstrate that the emission reductions associated with compliance of this rule can be achieved through an equivalent substitute fuel strategy. We approved this provision in our original approval of this rule (November 14, 2001 at 66 FR 57196). Reductions in the Austin area were a fortuitous effect of the TXLED program that was designed to primarily assist the DFW and HGB nonattainment areas. The AERP program has led to equivalent NO_X reductions being achieved in several areas across the state.

IV. Final Action

We are granting final approval to revisions to the TXLED rules submitted on May 15, 2006, June 11, 2007, and June 13, 2007.

V. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, 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 23, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements

Dated: October 9, 2008.

Richard E. Greene,

Administrator, Region 6.

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 table in § 52.2270(c) entitled “EPA-Approved Regulations in the Texas SIP” is amended under Chapter 114, Subchapter A, by revising the entry for 114.6, and under Chapter 114, Subchapter H, Division 2, by revising the entries for 114.312, 114.313, 114.315, 114.316, 114.317, 114.318, and 114.319 to read as follows:

§ 52.2270

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Regulations in the Texas SIP

State citation	Title/subject	State approval/submittal date	EPA approval date	Explanation
*         *         *         *         *         *         *
Chapter 114 (Reg 4)—Control of Air Pollution from Motor Vehicles
Subchapter A—Definitions
*         *         *         *         *         *         *
Section 114.6	Low Emission Fuel Definitions	06/13/07	10/24/08 [Insert FR page number where document begins]
*         *         *         *         *         *         *
Subchapter H—Low Emission Fuels
*         *         *         *         *         *         *
Division 2—Low Emission Diesel
Section 114.312	Low Emission Diesel Standards	05/15/06	10/24/08 [Insert FR page number where document begins]
Section 114.313	Designated Alternate Limits	05/15/06	10/24/08 [Insert FR page number where document begins]
*         *         *         *         *         *         *
Section 114.315	Approved Test Methods	05/15/06	10/24/08 [Insert FR page number where document begins]
Section 114.316	Monitoring, Recordkeeping, and Reporting Requirements	05/15/06	10/24/08 [Insert FR page number where document begins]
Section 114.317	Exemption to Low Emission Diesel Requirements	05/15/06	10/24/08 [Insert FR page number where document begins]
Section 114.318	Alternative Emission Reduction Plan	06/11/07	10/24/08 [Insert FR page number where document begins]
Section 114.319	Affected Counties and Compliance Dates	06/13/07	10/24/08 [Insert FR page number where document begins]
*         *         *         *         *         *         *

Footnotes

1.  In 2005 Texas requested and we approved the removal of the sulfur content requirement from the TXLED program. 70 FR 58325 (October 6, 2005).

2.  EPA currently has nationwide regulations prescribing limits on various characteristics and components of motor vehicle diesel fuel (e.g., sulfur content limits, minimum cetane index and limits on aromatic content) (55 FR 34120, August 21, 1990).