[Federal Register Volume 63, Number 217 (Tuesday, November 10, 1998)]
[Rules and Regulations]
[Pages 62943-62947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29812]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-80-1-7353; FRL-6173-8]
Approval and Promulgation of Implementation Plans(SIP); Texas:
1990 Base Year Emissions Inventories, 15% Rate of Progress Plans,
Contingency Plans, and Motor Vehicle Emission Budgets
AGENCY: Environmental Protection Agency (EPA).
ACTION: Conditional interim final rule.
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SUMMARY: In this action, the EPA is granting conditional interim
approval of the 15% Rate-of-Progress (ROP) Plans and associated Motor
Vehicle Emissions Budgets (MVEB) for the Dallas/Fort Worth, El Paso and
Houston/Galveston ozone nonattainment areas. In addition, EPA is fully
approving revisions to the 1990 base year emissions inventories and the
contingency plans for the three areas. The 15% ROP Plans and MVEB's are
receiving conditional interim approval, instead of full approval,
because they rely on emission reductions from the Texas Inspection and
Maintenance (I/M) Program which received final conditional interim
approval on July 11, 1997 (62 FR
[[Page 62944]]
37138). This action will aid in ensuring the attainment of the National
Ambient Air Quality Standard (NAAQS) for ozone as required by the Clean
Air Act (Act), as amended in 1990.
DATES: This conditional interim final rule is effective on December 10,
1998.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
following locations. Persons interested in examining these documents
should make an appointment with the appropriate office at least 24
hours before the visiting day.
Environmental Protection Agency, Region 6, Air Planning Section (6PD-
L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
Texas Natural Resource Conservation Commission, 12100 Park 35 Circle,
Austin, Texas 78711-3087.
FOR FURTHER INFORMATION CONTACT: Mr. Guy R. Donaldson, Air Planning
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7242.
SUPPLEMENTARY INFORMATION:
I. Background
Section 182(b)(1) of the Act requires ozone nonattainment areas
with classifications of moderate and above to develop plans to reduce
area-wide Volatile Organic Compound (VOC) emissions by 15% from a 1990
baseline during the first six years after enactment (November 15,
1996). In addition, section 172(c)(9) of the Act requires that
contingency measures be included in the plan revision to be implemented
if reasonable further progress is not achieved or if the standard is
not attained.
In Texas, four moderate and above ozone nonattainment areas are
subject to the 15% Rate of Progress (ROP) requirements. These are the
Beaumont/Port Arthur (moderate 1), Dallas/Fort Worth
(serious 2), El Paso (serious), and Houston/Galveston
(severe) areas.
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\1\ Previously classified serious. On April 2, 1996, EPA
corrected the classification of Beaumont/Port Arthur to moderate (61
FR 14496).
\2\ Reclassified to serious (63 FR 8128, February 18, 1998).
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The Governor of Texas submitted revisions to the State
Implementation Plan(SIP) in a letter dated August 9, 1996, including
revisions to the 15% ROP Plans for the Beaumont/Port Arthur, Dallas/
Fort Worth, El Paso and Houston/Galveston areas. The revisions also
included changes to the 1990 Base Year Inventory, the El Paso Section
179B International Border analysis, the Post-96 ROP Plan for Houston
and the Houston/Galveston Employee Commute Options SIP.
The EPA proposed conditional interim approval of the 15% ROP plans
for the Dallas/Fort Worth, El Paso and Houston areas on July 11, 1997
(62 FR 37175). For further information, including specification of the
measures included in the 15% ROP Plans, please see that Federal
Register notice.
In this Federal Register action, EPA is approving only the
Emissions Inventories, 15% ROP Plans, MVEB and Contingency measures for
the Dallas/Fort Worth, El Paso and Houston/Galveston areas. The EPA is
taking no action on the other portions of the August 9, 1996,
submittal, including the Beaumont/Port Arthur 15% ROP Plan. Final
action approving the Beaumont/Port Arthur 15% ROP Plan and associated
Contingency Plan, revisions to the 1990 Emissions Inventory for
Beaumont/Port Arthur, and MVEB for Beaumont/Port Arthur was published
in the Federal Register on February 10, 1998 (63 FR 6659). The other
portions of the submittal will be processed in separate Federal
Register actions.
II. Public Comments and EPA Responses
The EPA received comment letters from the Houston Airport System,
the Air Transport Association, American Airlines, and the Dallas/Fort
Worth International Airport Board. All of the comments address related
issues. The commentors' concerns are summarized below.
1. The City of Houston, Department of Aviation requested a 180-day
extension to the comment period so a revised emissions inventory for
the Houston/Galveston area could be prepared to reflect the area's
actual and projected aircraft emissions. The City of Houston's comment
is based on the belief that the SIP inventory of 1.82 tons/day
understates the actual emissions attributable to commercial aviation in
the City of Houston.
2. The Air Transport Association of America (ATA) requested a 90-
day extension to the comment period. The ATA believes that current
emissions and emission calculations associated with growth of the DFW
International Airport have not been properly taken into account. The
ATA also refers to a document entitled ``DOT/FAA Final Environmental
Impact Statement: Dallas/Fort Worth International Airport Runway 16/34
East--Runway 16/34 West'' (1991). The ATA believes that information
from this document was not incorporated in the Dallas/Fort Worth 15%
ROP plan.
3. American Airlines also asked for a 90-day extension to the
comment period to allow for revision of the 1990 emissions inventory
and the 15% ROP Plan. American Airlines refers to the 1991
Environmental Impact Statement as providing documentation that the 1990
base year inventory for Dallas/Fort Worth area is incorrect and the
projected emissions do not accurately project anticipated emissions
growth at DFW Airport. Their analysis indicated that: turboprop
aircraft were not included in the emission estimate for the DFW
Airport; the inventory is based on default times for the various stages
of aircraft operations (i.e. take-off, climb-out, approach and idle/
taxi) in the landing/take-off (LTO) cycle, which are not specific to
the DFW airport; and the EIS was based on LTO cycle times appropriate
to the DFW airport and included turboprop aircraft.
4. The DFW International Airport Board requested a 180-day
extension to the comment period. They also commented that the estimate
of emissions from commercial aircraft is significantly understated and
conflicts with the 1991 Environmental Impact Statement. In addition,
the ROP Plan does not consider projections for anticipated growth in
aircraft activity in the Dallas/Fort Worth Area. The DFW Airport Board
expressed the same concerns that were identified by American Airlines
regarding the emission calculations.
All of the commentors expressed concern that if emissions growth is
underestimated, future planned expansions at the airports in the
nonattainment areas will not be able to conform to the applicable SIP.
Response to Comments
Comment: All of the commentors asked for an extension of the
comment period. During that time they would develop documentation for a
revised emission inventory and projected emissions.
Response: The EPA does not believe that additional time for comment
is appropriate. The EPA approved the State's estimate of 1990
commercial aircraft emissions in the Federal Register action on the
1990 emissions inventories for the Houston/Galveston and Dallas/Fort
Worth areas on November 8, 1994 (59 FR 55586). No comments were
received on the 1994 action that referred to the commercial aircraft
inventory. In the July 11, 1997, Federal Register, EPA did not propose
to revise the approved estimates of the 1990 commercial aircraft
emissions, nor did Texas submit a revision to this portion of the
inventories. Thus, the
[[Page 62945]]
July 11, 1997, Federal Register proposal did not reopen the 1990 base
year emissions inventory for commercial aircraft. In addition, the
amount of emissions growth allocated for commercial aviation is at the
discretion of the State. Therefore, the commentors' appropriate course
of action for revising the base year inventories and projected future
emissions estimates for commercial aircraft, is to work with Texas with
the goal of the State submitting to EPA revisions to the inventories
and the SIP. If revisions are submitted to EPA, they would be acted
upon in a separate action published in the Federal Register.
Comment: The Emissions Inventories should be disapproved because
the level of commercial aircraft emissions are understated.
Response: The EPA approved the 1990 emission inventory for
commercial aircraft in a previous Federal Register action and did not
propose to revise it in the July 11, 1997 Federal Register proposal.
Since EPA did not propose to revise the commercial aircraft emissions
in the approved inventory, we cannot address this comment in this
rulemaking.
However, EPA believes that the major potential source of
discrepancy is that the approved 1990 emission inventory is calculated
using default values for the idle/taxi times at the airports. The
approach of using default times for estimating airport emissions is
reasonable and follows EPA guidance and, therefore, can be approved.
The EPA encourages States to use site specific measured values in place
of default values whenever possible. However, since Texas did not do so
in this case, the appropriate course of action is for the commenters to
work with the State on this issue.
Comment: The 15% ROP SIPs should be disapproved because they do not
accurately project the growth in commercial aircraft emissions.
Response: The issue of whether the State has projected adequate
growth in emissions for commercial aircraft emissions is of particular
concern because the section 176 General Conformity requirements of the
Act could impede future planned expansions if the SIP does not allow
for sufficient projected emissions. The EPA believes that States must
account for growth in emissions so that the air quality planning
efforts have a reasonable chance of success. In the case of commercial
aircraft emissions, the State followed EPA guidance and projected that
aircraft emissions would grow based on the Economic Growth Analysis
System (EGAS). The EGAS projects growth in emissions based on economic
projections for particular industries. The State followed EPA's
guidance in projecting growth. The EPA believes the State's estimate is
reasonable and can be accepted. If growth in emissions in excess of the
State's estimate is desired by the airports, they should work with the
State to ensure that the desired growth is accounted for in the SIP.
The State has the discretion to provide for future emissions growth in
the SIP and EPA can accept projections that are reasonable and based on
EPA guidance.
III. Rulemaking Action
Pursuant to sections 110 and Part D of the Act, EPA is approving
the revised emissions inventories for the Dallas/Fort Worth, El Paso
and Houston/Galveston areas and Contingency Plans. The EPA is giving
conditional interim approval to the 15% ROP Plans and associated MVEB
for the Dallas/Fort Worth, El Paso and Houston/Galveston areas.
The 15% ROP Plans for the three areas can only receive a
conditional interim approval because the plans all rely, in part, on
emission reductions from the revised I/M program. The EPA published
conditional interim approval of the I/M program for the three areas on
July 11, 1997 (62 FR 37138). Therefore, the 15% ROP Plans can only
receive conditional interim approval.
Interim Approval
Section 348 of the National Highway Systems Designation Act (NHSDA)
allows States to make a ``good faith'' estimate of the reductions that
will be achieved by the I/M program. The I/M program can be given
interim approval during a 18-month period during which the program is
evaluated to validate the ``good faith'' estimate. At the end of the
18-month interim period (February 11, 1999), the interim approval for
the I/M program will automatically lapse pursuant to the NHSDA. It is
expected that, by that time, the State will be able to make a
demonstration of the program's effectiveness using appropriate
evaluation criteria. If the State fails to provide such a demonstration
of the program's effectiveness to EPA by February 11, 1999, the interim
approval will lapse. A lapse of the I/M approval resulting from the
State failing to provide a program demonstration could result in EPA
disapproval of the I/M SIP. Lapse of the I/M interim approval will
result in a 15% ROP Plan approval lapse unless emission reductions are
submitted and approved which can replace the projected emission
reductions from I/M. Information from the I/M program evaluation
showing the program achieves a lesser amount of emissions reductions
than originally projected will be considered in any future actions on
the 15% ROP Plans. Further discussion of the requirements for final
approval of the I/M program is contained in the October 3, 1996,
Federal Register (61 FR 51651).
Conditional Approval
The EPA is granting conditional approval of the 15% Plans
contingent upon the State meeting the conditions outlined in the I/M
conditional approval. These include the State obtaining the appropriate
legislative authority as needed to implement the program outlined in
the Governor's Executive Order. If the State fails to meet the
conditions within 12 months of the effective date of the conditional
interim final approval, this action on the 15% Plans will convert to a
disapproval. However, the State submitted in a letter, dated May 29,
1997, a revision to the SIP including the items identified in the
conditions. A completeness letter was sent on August 18, 1997.
Therefore, there will be no automatic conversion of the I/M or 15% Rate
of Progress plans to disapproval. The EPA is evaluating whether the SIP
revision meets the requirements of the conditional approval and will
take action in a separate Federal Register document.
Motor Vehicle Emissions Budgets
The Clean Air Act, section 176(c), and the transportation
conformity rule require States to establish MVEB in any control
strategy SIP that is submitted for attainment and maintenance of the
National Ambient Air Quality Standards. The EPA is granting conditional
interim approval to the MVEB listed below, for the Dallas/Fort Worth,
El Paso, and Houston/Galveston areas.
1996 VOC Motor Vehicle Emission Budget
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VOC (tons/
Area day)
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Dallas/Fort Worth......................................... 165.49
El Paso................................................... 21.63
Houston/Galveston......................................... 152.12
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IV. Administrative Requirements
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental
[[Page 62946]]
factors and in relation to relevant statutory and regulatory
requirements.
A. Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because conditional approvals of
SIP submittals under section 110 and subchapter I, part D of the Clean
Air Act do not create any new requirements but simply approve
requirements that the state is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, I certify
that this action will not have a significant economic impact on a
substantial number of small entities. Moreover, due to the nature of
the Federal-State relationship under the Clean Air Act, preparation of
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co., v.
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
If the conditional approval is converted to a disapproval under
section 110(k), based on the state's failure to meet the commitment, it
will not affect any existing state requirements applicable to small
entities. Federal disapproval of the state submittal does not affect
its state-enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new Federal requirement. Therefore, I certify that
this disapproval action will not have a significant economic impact on
a substantial number of small entities because it does not remove
existing requirements nor does it substitute a new federal requirement.
B. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated costs to State, local, or
tribal governments in the aggregate; or to private sector, of $100
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
preexisting requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
Since this action does not impose any mandate, it is also not subject
to Executive Order 12875 concerning Federal mandates.
C. Submission to Congress and the Comptroller General
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. The 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
D. Executive Orders 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under Executive Order 12866 entitled,
``Regulatory Planning and Review.''
E. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, E.O. 12875 requires EPA to
develop an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' Today's rule does not
create a mandate on state, local or tribal governments. The rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this rule.
F. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, representatives of Indian tribal governments
are ``to provide meaningful and timely input in the development of
regulatory policies on matters that significantly or uniquely affect
their communities.'' Today's rule does not significantly or uniquely
affect the communities of Indian tribal governments. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
G. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective
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and reasonably feasible alternatives considered by the Agency.
This rule is not subject to E.O. 13045 because it is does not
involve decisions intended to mitigate environmental health or safety
risks.
H. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 11, 1999. Filing a petition for
reconsideration by the Administrator of this conditional interim 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,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Dated: September 23, 1998.
Gregg A. Cooke,
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. Section 52.2270 is amended by adding paragraph (c)(113) to read
as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
(113) The Texas Natural Resource Conservation Commission submitted
a revision to the State Implementation Plan (SIP) on August 9, 1996.
This revision contained, among other things, 15% Rate-of-Progress plans
for the Dallas/Fort Worth, El Paso and Houston/Galveston ozone
nonattainment areas which will aid in ensuring the attainment of the
National Ambient Air Quality Standards for ozone. This submittal also
contained revisions to the 1990 base year emissions inventories, the
associated Motor Vehicle Emission Budgets and contingency plans.
(i) Incorporation by reference. Texas Natural Resource Conservation
Commission (TNRCC) order adopting amendments to the SIP; Docket Number
96-0465-SIP, issued July 31, 1996.
(ii) Additional material.
(A) TNRCC certification letter dated July 24, 1996, and signed by
Gloria Vasquez, Chief Clerk, TNRCC.
(B) The SIP narrative plan and tables dated July 24, 1996 entitled,
``Revisions to the State Implementation Plan (SIP) for the Control of
Ozone Air Pollution,'' as it applies to the Dallas/Fort Worth, El Paso
and Houston areas' 15% Rate-of-Progress plans, emissions inventories,
motor vehicle emissions budgets and contingency plans.
* * * * *
3. Section 52.2309 is amended by adding paragraph (e) to read as
follows:
Sec. 52.2309 Emissions inventories.
* * * * *
(e) The Texas Natural Resource Conservation Commission submitted a
revision to the State Implementation Plan (SIP) on August 9, 1996. This
revision was submitted for the purpose of satisfying the 15% Rate-of-
Progress requirements of the Clean Air Act, which will aid in ensuring
the attainment of the National Ambient Air Quality Standards for ozone.
This submittal also contained revisions to the 1990 base year emissions
inventories for the Dallas/Fort Worth, El Paso and Houston/Galveston
areas.
[FR Doc. 98-29812 Filed 11-9-98; 8:45 am]
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