05-3526. Proposed Approval and Promulgation of Implementation Plans; Texas; Low-Emission Diesel Fuel Compliance Date

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The EPA proposes to approve revisions to the Texas State Implementation Plan (SIP). We are proposing approval, through parallel processing, of a revision to the SIP that would change the compliance date for Texas Low-Emission Diesel (TXLED) fuel from April 1, 2005, to October 1, 2005. In addition, we are requesting comments on a refinement to the State's proposed revision. The refinement contemplated by the State is a phased schedule which would extend the compliance date from April 1, 2005 to October 1, 2005 for producers and importers, from April 1, 2005 to November 15, 2005 for bulk plant distribution facilities, and from April 1, 2005 to January 1, 2006 for retail fuel dispensing outlets, wholesale bulk purshaser/consumer facilities, and all other affected persons. The change is being made to address fuel supply uncertainty in the April 2005 time frame.

DATES:

Written comments must be received on or before March 28, 2005.

ADDRESSES:

Submit your comments, identified by Regional Material in EDocket (RME) ID No. R06-OAR-2005-TX-0020, 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 [e-mail]. 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. R06-OAR-2005-TX-0020. 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), http://www.regulations.gov,, or e-mail if you believe that it is CBI or otherwise protected from disclosure. The EPA RME website and the Federal http://www.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 http://www.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 [phone] 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 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT:

Sandra Rennie, Air Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone [phone], e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

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

What Action Are We Taking Today?

We approved the original TXLED rule on November 14, 2001 (66 FR 57196), as part of the Houston-Galveston Attainment Demonstration SIP. On December 15, 2004, the Texas Commission on Environmental Quality (TCEQ) Commissioners proposed to revise the TXLED rule. Among other revisions, the commission proposed to extend the compliance date from April 1, 2005 to October 1, 2005. The commission proposed this extension because of concern about product availability by the current compliance date.

On February 16, 2005 the Executive Director of the TCEQ submitted a letter to EPA requesting parallel processing of the compliance date portion of the SIP revision for TXLED and requested that EPA consider a refinement to the proposal in parallel processing this proposal. Based on this request, EPA is proposing to approve the change to the compliance date for TXLED fuel from April 1, 2005, to October 1, 2005, and also is proposing approval and accepting comment on the requested refinement to the State's proposal. This refinement would change the compliance date from April 1, 2005 for all the regulated public to a phased schedule beginning on October 1, 2005 and ending on January 1, 2006. The schedule would establish October 1, 2005 as the compliance date for producers and importers, November 15, 2005 as the compliance date for bulk plant distribution facilities, and January 1, 2006 as the compliance date for retail fuel dispensing outlets, wholesale bulk purchasers/consumer facilities, and other affected persons. The change is necessary to address concerns by refiners, distributors, and retailers about the availability of compliant fuel on the date it is required in the federally approved Texas SIP.

We are proposing approval of this revision to the Texas SIP utilizing parallel processing. Parallel processing means that EPA proposes action on a portion of the state revision before the state regulation becomes final under state law. 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. If there are significant changes in the final submission, if those significant changes are anticipated and adequately described in EPA's proposed rulemaking or result from corrections determined by the State to be necessary through review of issues described in EPA's proposed rulemaking, EPA may still take final action to approve the submittal.

EPA is proposing approval of the extension of the compliance dates for TXLED. We are seeking comment on this approach. A separate notice will be published in the Federal Register at a later date to address the other components of the TXLED proposed SIP revision.

What Did the State Submit?

The compliance date was proposed to be changed from April 1, 2005 to October 1, 2005 when the TXLED SIP revision was proposed for public comment on December 15, 2004. Comments received by the State have prompted them to consider a refinement of the proposal for phasing-in the compliance date for different parts of the regulated public. In a letter dated February 16, 2005, the Executive Director of the TCEQ requested parallel processing of compliance dates for TXLED. The October 1, 2005 compliance date still stands, but applies only to producers and importers of TXLED fuel. A November 15, 2005 compliance date applies to bulk plant distribution facilities. A January 1, 2006 compliance date applies to retail fuel dispensing outlets, wholesale bulk purchaser/consumer facilities, and all other affected persons.

Why Are We Proposing Approval of the Phased Compliance Dates?

The purpose of this revision is to change the compliance date of Texas LED from April 1, 2005, to a phased schedule beginning October 1, 2005. We can approve this delay because this change addresses problems with the supply of compliant fuels while allowing regulated entities to remain in compliance with the rule without a substantial adverse impact on air quality. A phased-in approach such as we are proposing here will help ensure full compliance with the rule and an adequate fuel supply.

In the April 2005 timeframe, the adequacy of the fuel supply is uncertain. In the intervening six months new technology is expected to be available which will further ensure compliance with the rule. Beyond compliance by regulated entities, lack of compliant diesel could lead to a supply shortage in Texas. This could have a deleterious impact on the transportation of goods throughout the State, with a resultant serious and significant adverse economic impact on consumers.

Because this SIP revision is a delay in implementation only, EPA concludes that the same amount of emission reductions would be achieved by the attainment date for nonattainment areas and therefore, no attainment plans would be affected by this change. The affected area includes 110 counties in the eastern part of the State. Nonattainment areas in the affected area of the State are Houston-Galveston, Beaumont-Port Arthur, and Dallas-Fort Worth. This state rule change does not have any impact on the implementation of Federal Ultra-Low Sulfur Diesel fuel and the compliance dates for that rule.

Proposed Action

We are proposing approval of the change in compliance date for TXLED from April 1, 2005, to a phased approach beginning October 1, 2005 and ending on January 1, 2006. More specifically, October 1, 2005 is the compliance date for producers and importers of TXLED fuel. November 15, 2005 is the compliance date for bulk plant distribution facilities, and January 1, 2006 is the compliance date for retail fuel dispensing outlets, wholesale bulk purchaser/consumer facilities, and all other affected persons.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposes to approve 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 proposed 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 proposes to approve 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 proposed 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 proposed 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.).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Motor vehicle pollution
• Volatile organic compounds
• Nitrogen oxides
• Ozone
• Reporting and recordkeeping requirements

Authority: 42 U.S.C. 7401 et seq.

Dated: February 17, 2005.

Richard E. Greene,

Regional Administrator, Region 6.