04-13175. Approval and Promulgation of Implementation Plans for Texas; Approval of Section 179B Demonstration of Attainment, Volatile Organic Compounds and Nitrogen Oxides Motor Vehicle Emissions Budgets for Conformity for the El Paso Ozone ...

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final approval.

SUMMARY:

The EPA is approving, through direct final action, a revision to the Texas State Implementation Plan (SIP), submitted to show attainment of the one-hour ozone National Ambient Air Quality Standard (NAAQS) in the El Paso ozone nonattainment area, but for emissions emanating from outside of the United States. The EPA is also approving the El Paso area's Volatile Organic Compounds (VOCs) and Nitrogen Oxides (NO_X) emissions budgets. The State submitted the revisions to satisfy sections 179B and other Part D requirements of the Federal Clean Air Act (CAA).

DATES:

This rule is effective on August 9, 2004, without further notice, unless EPA receives adverse comment by July 12, 2004. If EPA receives such comment, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES:

Submit your comments, identified by File ID No. TX-70-2-7347, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online 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 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: Please include the text “Public comment on File ID No. TX-70-2-7347” in the subject line of the first page of your comments. EPA's policy is that all comments received will be included in the public file without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov, or e-mail. The federal regulations.gov Web site is an “anonymous access” system, 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 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.

Official File: Copies of the documents relevant to this action are 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 214-665-7253 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.

Copies of any State submittals and EPA's technical support document are also available for public inspection at the State Air Agency listed below during official business hours by appointment: Texas Commission on Environmental Quailty, Office of Air Quality, 12124 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]; fax number 214-665-7263; E-Mail address [e-mail].

SUPPLEMENTARY INFORMATION:

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

Outline

I. What is the background for this action?

II. What did the state submit and how did we evaluate it?

A. Modeling.

B. Additional basin-wide modeling.

C. How close is El Paso to attainment of the ozone standard?

D. Motor vehicle emissions budget.

E. Has the EPA approved other parts of the SIP before now?

III. What is our final action?

IV. Why is this a “final action?”

V. Statutory and Executive Order Reviews.

I. What Is the Background for This Action?

El Paso, Texas, was designated nonattainment for ozone and classified as serious under sections 107(d)(4)(A) and 181(a) of the CAA. The El Paso nonattainment area consists of El Paso County. Under section 181(a), serious areas must attain the ozone NAAQS by November 15, 1999.

The CAA requires that ozone nonattainment areas designated moderate and above demonstrate attainment through air quality modeling or any other analytical method determined by the Administrator to be at least as effective. Section 179B of the CAA contains special provisions for nonattainment areas that are affected by emissions emanating from outside the United States. Under section 179B, the EPA will approve a SIP if the area meets all other CAA requirements, and establishes that implementation of the plan would achieve attainment of the ozone standard by the CAA statutory deadline “but for emissions emanating from outside the United States.” This is the type of demonstration made by the State of Texas.

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

A. Modeling

The Governor of the State of Texas submitted a revision to the Texas SIP for the El Paso ozone nonattainment area via a letter dated October 3, 1994. This included air quality modeling, under section 179B of the CAA, that demonstrates that El Paso would attain the ozone NAAQS, but for emissions emanating from outside of the United States. The State of Texas submitted a revision via a letter dated August 9, 1996, showing that the revised inspection and maintenance program, and delay in implementation, would have no significant effect on the validity of the attainment demonstration submitted in 1994.

El Paso and Juarez, Mexico, share a common airshed. However, emission inventory data was not available for Juarez, so modeling of the entire airshed was not possible. In such an instance, section 179B allows an area such as El Paso to perform modeling using only U.S. pollutant emission data in performing the attainment demonstration.

In its demonstration, the Texas Commission on Environmental Quality (TCEQ) used the Urban Airshed Model (UAM) version IV, an EPA-approved photochemical grid model, to develop the attainment demonstration for the El Paso area. Texas performed its ozone modeling analyses for El Paso, according to EPA guidance. For further details, see the Technical Support Document.

The State had previously submitted to the EPA the 15 percent VOC Reasonable Further Progress (RFP) SIP for the El Paso area (63 FR 62943, November 10, 1998), as required by section 182(b)(1) of the CAA. The 15 percent RFP SIPs contain regulations that are estimated to reduce VOC emissions in each area by 15 percent from 1990 baseline levels. The modeling results indicate that with the 15 percent RFP reductions, the area would attain the 1-hour ozone standard, but for emissions emanating from outside the United States, by November 15, 1996, which is before the area's applicable attainment deadline of November 15, 1999. The predicted domain-wide maximum ozone concentration for 1996 was significantly below the NAAQS of 120 ppb.

B. Additional Basin-Wide Modeling

Section 182(c)(2) of the CAA requires each serious and above ozone nonattainment area to submit a SIP revision by November 15, 1994, which describes, in part, how the area will achieve an actual VOC emission reduction from the baseline emissions of at least 3 percent of baseline emissions per year averaged over each consecutive 3-year period beginning 6 years after enactment (i.e., November 15, 1996), until the area's attainment date.

Via a letter from A. Stanley Meiburg of EPA Region 6 to Ms. Beverly Hartsock of the then Texas Natural Resource Conservation Commission, dated August 9, 1994, EPA stated its position that if the section 179B attainment demonstration SIP showed the El Paso area would attain by November 15, 1996, the attainment deadline for moderate areas, the additional 9 percent in emission reductions required in the post-96 Rate of Progress (ROP) would be deferred. This deferral was effective until Juarez monitoring data and emission inventory data became available to perform basin-wide modeling of the El Paso/Jurez airshed.

Annex V of the 1983 La Paz Agreement between the United States and Mexico, which addressed environmental concerns along the border, calls for basin-wide modeling to be accomplished for the El Paso/Juarez airshed. This modeling was performed during the 1998-2000 period, but was not deemed to be valid to ascertain the types of controls necessary throughout the airshed in order to meet ozone air quality standards on both the U.S. and the Mexico side of the border. The main problem with model performance was believed to be an inadequate VOC emission inventory for Juarez.

However, subsequent to the submission of this attainment demonstration, the El Paso area has now attained the 1-hour ozone standard by the accumulation of three consecutive years of quality-assured ambient air data that show no violations of the standard. The most recent data provided by the State of Texas, available through the EPA Aerometric Information and Retrieval Service, demonstrate the area continues to attain the 1-hour standard. Therefore, EPA does not anticipate a need to trigger the commitment for basin-wide modeling.

Based on EPA's “Clean Data Policy”, if EPA made an attainment finding, we would no longer require the 9 percent ROP plan. Therefore, since the El Paso area has data showing attainment of the ozone standard without the 9 percent ROP plan, we believe that it is reasonable to defer that ROP requirement. Complete details of EPA's rationale are included in the Clean Data Policy. If the area violates the 1-hour ozone standard before a future redesignation, EPA will review the conclusion to defer the 9 percent ROP requirement.

C. How Close Is El Paso to Attainment of the Ozone Standard?

Data from the El Paso monitoring network from 1999 to the end of 2002 indicate that the area is in attainment of the ozone standard. The State has informed EPA that it may request redesignation in the near future.

D. Motor Vehicle Emissions Budget

The Governor of Texas submitted the 1996 motor vehicle emissions budgets of 36.23 tons/day for VOCs and 39.76 tons/day for NO_X on December 11, 1997. These budgets were found to be adequate for transportation conformity purposes on January 12, 1998 (see 64 FR 31217, June 10, 1999). It is EPA's conclusion that the SIP demonstrates attainment with these budgets and contains the measures necessary to support them. Today, we are approving these budgets, under section 176(c) of the CAA.

E. Has the EPA Approved Other Parts of the SIP Before Now?

Below is a table describing the elements that the El Paso ozone SIP must have, and the references to their EPA approvals.

Description	Section of CAA	Codified at 40 CFR part 52, subpart SS
An inventory of all actual emissions of VOC and NOX sources in the area	172(c)(3) and 182(a)(1)	52.2309(a).
A revised inventory every three years	182(a)(3)(A)	Most recent submitted 1996.
A permit program for the construction and operation of new and modified major stationary sources of VOC and NOX ozone in nonattainment areas	172(c)(5) and 182(a)(2)(C); 182(c)(6); 182(c)(7); 182(c)(8)	52.2270(c)(88).
A regulation that requires sources to legally certify their emissions each year	182(a)(3)(B)	52.2270(c)(88).
A regulation requiring reductions in current emissions to offset new emissions from new and modified sources	182(c)(10)	52.2270(c)(97).
Reasonably available control technology on major sources of VOC's	182(b)(2)	52.2270(c)(88).
A fuels program to reduce evaporative emissions from vehicle fuel tanks	211(h)	52.2270(c)(88).
Contingency measures to be implemented if the area fails to attain the standard by the deadline	182(c)(9); 172(c)(9)	63 FR 62943, Nov. 10, 1998.
A vehicle inspection and maintenance program	182(c)(3)	52.2270(c)(87).
Vapor recovery systems on fuel pumps	182(b)(3)	52.2270(c)(81).
A clean fuel fleet program	182(c)(4)	52.2270(c).
Enhanced monitoring of ozone, NOX, VOC's, and NOX and VOC emissions	182(c)(1)	52.2270(c)(90).
Transportation control measures	182(c)(5)	52.2308(b) (waiver of NOX provisions, and 63 FR 62943, Nov. 10, 1998).
A SIP revision to achieve 15 percent reductions in overall VOC emissions	182(b)(1)	63 FR 62943, Nov. 10, 1998.
A SIP revision to achieve 3 percent reductions per year in 1997, 1998, and 1999 [9 percent ROP]	182(c)(2)(B)	Deferred, based on EPA's Clean Data Policy and monitored attainment.

III. What Is Our Final Action?

The EPA is approving a revision to the Texas SIP, which was submitted to show attainment of the one-hour ozone standard in the El Paso ozone nonattainment area by the applicable attainment date, but for emissions from Mexico. The revision satisfies section 179B of the CAA. The EPA is electing to defer the post-1996 RFP requirement. In so doing, the EPA is finding that, based on the States's section 179B attainment demonstration the El Paso area would attain by November 15, 1996, the State's enforceable commitment to perform basin-wide modeling when the necessary Juarez information becomes available, and monitoring data now showing attainment, a post-1996 plan with an additional 9 percent of reductions from November 1996 through November 1999, is not necessary for attainment in the El Paso area.

The EPA believes that all section 179B approvals should be on a contingency basis. Therefore, this section 179B modeling-based approval is valid only as long as the area's modeling data continue to show that the El Paso ozone area would be in attainment, but for emissions from outside the United States. If El Paso again experiences one-hour ozone violations, or if future successful basin-wide modeling demonstrates the El Paso area could achieve attainment of the one-hour standard through reduction measures typically employed by serious nonattainment areas, the EPA will review the decision to defer the 9 percent ROP requirement, and Texas may be required to submit a new post-1996 ROP plan for El Paso.

The EPA is also approving El Paso's VOC and NO_X motor vehicle emissions budgets, under section 176(c) of the CAA.

IV. Why Is This a “Final Action?”

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are received. This rule will be effective on August 9, 2004, without further notice unless we receive adverse comment by July 12, 2004. If we receive adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

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 (Public Law 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 August 9, 2004. 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
• Intergovernmental relations
• Ozone
• Reporting and recordkeeping requirements

Dated: May 27, 2004.

Richard E. Greene,

Regional Administrator, Region 6.

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. 7402 et seq.

Subchapter SS—Texas

2. The table in § 52.2270(e) entitled “EPA approved nonregulatory provisions and quasi-regulatory measures in the Texas SIP” is amended by adding two entries to the end of the table to read as follows:

§ 52.2270

Identification of plan.

* * * * *

(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
*         *         *         *         *         *         *
Section 179B Attainment Demonstration Report	El Paso ozone nonattainment area	10/03/94	6/10/04	Approval includes a revision submitted 08/09/96.
Deferral of the post 1996 RFP	El Paso ozone nonattainment area		6/10/04
Enforceable commitment to conduct additional modeling for the area as new data become available. This modeling effort will be conducted under the auspices of the 1983 La Paz Agreement between the United States and Mexico	El Paso ozone nonattainment area	10/03/94	6/10/04
VOC and NOX Motor Vehicle Emissions Budget for Conformity	El Paso ozone nonattainment area	12/11/97	6/10/04