02-28844. Approval and Promulgation of Implementation Plans; Texas; Environmental Speed Limit Revision; and Voluntary Mobile Emission Reduction Program Commitment for the Houston/Galveston (HG) Ozone Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving, through parallel processing, revisions to the Texas Ozone attainment demonstration State Implementation Plan. This approval covers two separate actions. First, we are approving a revision to the SIP that would suspend the 55 miles per hour (mph) environmental speed limit for all vehicles until May 1, 2005. In the interim, the speed limits would be increased from the current 55 mph speed limit to a level 5 mph below the speed limit that was in place prior to May 2002. The new speed limits would apply in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties. Second, we are approving a clarification of the State enforceable commitment to remedy any shortfalls in emission reductions attributed to the Voluntary Emission Reduction Program (VMEP) in the Houston/Galveston (HG) nonattainment area.

EFFECTIVE DATE:

This rule is effective on December 16, 2002.

ADDRESSES:

Copies of documents relevant to this action are available for public inspection during normal business hours at the following locations. Anyone wanting to examine these documents should make an appointment with the appropriate office at least two working days in advance.

Environmental Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.

Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT:

Peggy Wade of the EPA Region 6 Air Planning Section at [phone], e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

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

What Action Are We Taking Today?

We are approving two proposed changes to the Texas SIP. First, we are approving a change to the Environmental Speed Limits in the Houston/Galveston nonattainment area to suspend the 55 mph speed limit until May 1, 2005. In the interim period prior to 2005, speed limits would be increased from the current 55 mph speed limit to a level 5 mph below the speed limit that was in place prior to May 2002. Second, we are approving a clarification of the State's enforceable commitment to remedy any shortfalls in the emissions reductions attributed to the VMEP so as to achieve all necessary reductions by the 2007 attainment date.

As is explained in the proposal (67 FR 60633, September 26, 2002) and below in response to comments, we have concluded that these revisions meet all applicable requirements and will not interfere with attainment or rate of progress.

What Is the Background of These Revisions to the SIP?

On July 16, 2002, the Chairman of the Texas Commission on Environmental Quality (TCEQ) submitted to EPA for parallel processing, described further below, two proposed rule revisions to the SIP. These rule revisions concern the delayed implementation of the 55 mph speed limit for vehicles weighing less than 10,000 pounds; and, clarification of a rule to commit the state to remedy any shortfalls in the emission reductions attributed to the VMEP so as to achieve all necessary reductions by the attainment date.

On September 16, 2002, the Executive Director of the TCEQ submitted to EPA a second option to the environmental speed limit which was under consideration by the TCEQ, in response to comments received on the Dual Speed Limit option. This proposed option would suspend the 55 mph speed limit for all vehicles until May 1, 2005, and, in the interim, would increase, for all vehicles, the current environmental speed limit of 55 mph to 5 mph below the original posted speed limit.

On September 25, 2002, the TCEQ adopted as a SIP revision the second option so that the 55 mph speed limit would be suspended for all vehicles. In the interim period before 2005, the current 55 mph limit would be raised to 5 mph below the limit that was in place prior to May 1, 2002.

In accordance with the request for parallel processing, on September 26, 2002, we proposed approval of the State's revisions to the environmental speed limit and to the clarification of the enforceable commitment pertaining to the VMEP program. We took comment on our proposed approval of both speed limit options that were being considered by the State. We also took comment on approval of the proposed clarifications to the State's enforceable commitment regarding the VMEP program.

What Changes Have Been Made in Response to Comment on the EPA and TNRCC Parallel Proposals?

As explained above, Texas requested that we parallel process these changes to the Texas SIP. Parallel processing means that EPA proposes action on a state rule before it becomes final under state law based on a State's proposed revision. Under parallel processing, EPA takes final action on its proposal if the final, adopted state submission is substantially unchanged from the submission on which the proposed rulemaking was based, or if significant changes in the final submission are anticipated and are adequately described in EPA's proposed rulemaking or result from needed corrections determined by the State to be necessary through review of issues described in EPA's proposed rulemaking.

In this case, as described above, TCEQ changed their approach to environmental speed limits that would be effective prior to May 1, 2005, from a dual speed limit approach to an approach of a single speed limit for all vehicles set 5 mph lower than their original levels. Because TCEQ provided notice in their September 16, 2002, letter that this approach was being considered, EPA was able to propose and take comment on approval of such an option.

With regard to the VMEP proposal, EPA provided minor language clarifications to the State's proposed language during the State's comment period. We proposed approval of the State's clarification of the VMEP commitment provided that the State further incorporated our comments. In their adopted revision, TCEQ agreed to the appropriate language changes.

Who Provided Comments?

We received three comment letters.

(1) An October 28, 2002, letter from Michael W. Behrens, P.E., Executive Director of the Texas Department of Transportation (TxDOT).

(2) An October 24, 2002, letter from Aren Cambre, a private citizen.

(3) An October 28, 2002, E-mail from Ramon Alvarez of Environmental Defense.

How Did EPA Respond to the Comments It Received?

Comments on Speed Limits

Comment: TxDOT provided comments in support of the action delaying implementation of the 55 mph speed limit until May 1, 2005, and increasing the speed limit to a level 5 mph below previously posted speed limits of 65 mph and above.

Response: EPA appreciates the comments and is approving the TCEQ's change to the environmental speed limit strategy.

Comment: One comment urged rejection of the currently proposed rule and future proposed rule that modifies the environmental speed limits in any SIP unless the change is a full cessation of the ESL program. This commenter raised three concerns about the effectiveness of speed limits as a control measure. First, for a variety of reasons the commenter did not believe that reduced speed limits would result in lowering the actual speeds being driven based on experience with the 1974 speed limit. Second, he felt that the emission reductions from a 5 mph reduction in speed limits are not sufficient to be worthwhile. Third, he felt that ESLs are not enforceable under State law.

Response: We do not believe that it is appropriate to disapprove the revision to the State's speed limit strategy based on these comments. Disapproval of the State's proposed revision would only leave in place the previously approved SIP with its requirement for a 55 mph speed limit starting in May 2002. This result would not address the commenter's concerns. EPA's decision to approve the revision is based on whether the proposed changes were consistent with the approved attainment plan. As explained more fully in the proposal (67 FR 60633, September 26, 2002), we were able to make this determination, because the revision is only a delay in full implementation until 2005 and not a relaxation of the measure. Therefore, the emission reductions by the 2007 attainment date are expected to be equivalent to those that would have been achieved by the previous plan. Thus, the revision will not interfere with timely attainment. Also, as noted below, no reductions from this measure were relied on to meet interim rate of progress (ROP) requirements.

EPA will consider the commenter's concerns about the measure's effectiveness as we oversee the implementation of the State Implementation Plan. If we determine that the measures in the plan are not being effectively implemented as the commenter anticipates we will consider making a finding of failure to implement. It the State fails to correct the problem either through more effective implementation or substitute measures, sanctions will have to implemented. We do not anticipate a finding of nonimplementation will be necessary because Texas will weigh the effectiveness of all of the measures in the plan and correct any shortfalls at the mid-course review scheduled for May 2004. Finally, the fact that the reduction from a 5 mph decrease in speeds may be small does not provide grounds for EPA to disapprove the revision. So long as the revision provides any reductions contributing to attainment of the National Ambient Air Quality Standard, EPA must approve it if it meets all applicable requirements.

Comment: Environmental Defense commented that delay in implementation will result in a 10 ton/day hole in the SIP. Specifically, Environmental Defense contends the Clean Air Act requires implementation of measures as expeditiously as practicable and the achievement of minimum rate of progress requirements. They further believe that under the logic of this proposal every control measure could be delayed until 2005, rendering meaningless the “expeditious as practical” language of the Act. According to Environmental Defense, if EPA finalizes this proposal as proposed, it must do so in a way that prevents Texas (or any other State) from pointing to this action in support of delays in implementation.

Response: We do not agree that the proposed change will result in a 10 ton/day hole in the SIP. It is true the preliminary analysis using EPA's new MOBILE6 mobile source emissions model, which has not been finalized by the State, indicates that much less emission reduction may be achieved by environmental speed limits than was estimated using MOBILE5a in the approved SIP. The delay in implementation, however, does not result in reduced emission reductions based on the MOBILE5a model. The projected decrease in emission reductions results from improved emission estimation techniques.

To the extent that the analysis using the new Mobile emissions model, once finalized, indicates that this control measure will not achieve as much emission reduction as calculated by the previous version of the model, EPA agrees that Texas should address this concern. Texas has, in fact, committed to a full review of all of the inputs to the attainment plan at the mid-course review which TCEQ has committed to perform by May 1, 2004. At that time, Texas will reevaluate all of the mobile source control measures in the plan using MOBILE6 and has committed to make up any short fall in needed emission reductions. Until this full analysis with MOBILE6 can be completed, EPA believes that it is appropriate to approve this revision to delay full implementation of the measure. Based on the approved attainment demonstration with MOBILE5 emissions modeling, this delay will not interfere with timely attainment as full implementation will occur prior to the attainment date. Furthermore, Texas' plan does not rely on the speed limit controls to meet minimum rate of progress requirements of section 182 of the Act. That is, Texas demonstrates all required rate of progress without any reductions from environmental speed limits.

We do not believe this logic could be interpreted to allow delay of implementation of all control measures. Instead, on a case by case basis, EPA believes it is acceptable for States to consider new information about the effectiveness of control measures and adjust implementation schedules, if warranted, to allow for additional evaluation if significant uncertainty about the effectiveness of the control measure exists, provided that reductions are fully implemented on a schedule to meet all ROP and timely attainment requirements. Finally, EPA notes that the Clean Air Act requires implementation of all reasonably available control measures as expeditiously as practicable. However, if implementation of a measure will not either advance attainment or contribute to required ROP the Act does not require implementation be as expeditious as practicable.

Comments on the Voluntary Measures Commitment

Comment: EPA only received one comment on the VMEP clarification. The comment from Environmental Defense suggested that the State commit to language no less explicit than the following:

Texas commits to achieve, by the attainment date of November 15, 2007, 23 tpd of NO_X emission reductions through the implementation of measures in appendix K.

Response: On September 26, 2002, the TCEQ adopted the following language to clarify its commitment to remedy any shortfall in emissions reductions from the VMEP program:

The State commits to monitor, assess, and remedy any shortfall in emissions reductions attributed to the VMEP by adopting additional control measures, equivalent to any shortfall, to provide for attainment by 2007. The State retains discretion to determine the specific control measures to remedy the shortfall.

EPA does not believe the language provided by the commenter is necessary for EPA approval. In fact, we believe the State's language referring to providing attainment by 2007 is more appropriate because it necessarily means that the emission reductions must be in place in time to prevent ozone exceedences during the 2007 ozone season and therefore, cannot be delayed until November 15, 2007. In addition, the point of the State's clarification to the VMEP commitment is to confirm that if the VMEP measures in appendix K do not achieve the needed reductions, the State will find new measures to insure the emission reduction goal is met by the attainment date. It, therefore, is not appropriate to restrict the State to the use of the measures in appendix K to meet this commitment.

III. Administrative Requirements

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. 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 January 13, 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
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Volatile organic compounds

Dated: November 4, 2002.

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. In the table in § 52.2270(e) entitled “EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP” the entries for “Speed Limit Reduction” and “voluntary mobile emissions program” in the Houston/Galveston area are revised to read as follows:

§ 52.2270

Identification of plan.

* * * * *

(e) EPA approved nonregulatory provisions and quasi-regulatory measures.

* * * * *

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
*         *         *         *         *         *         *
Speed Limit Reduction	Houston/Galveston, TX	9/26/02	11/14/02 and FR cite.	Section 6.3.12.
Voluntary Mobile Emissions Program	Houston/Galveston, TX	9/26/02	11/14/02 and FR cite.
*         *         *         *         *         *         *