[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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