[Federal Register Volume 66, Number 220 (Wednesday, November 14, 2001)]
[Rules and Regulations]
[Pages 57219-57223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27582]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-134-4-7508; FRL-7093-1]


Approval and Promulgation of Air Quality State Implementation 
Plans (SIP); Texas: Administrative Orders Issued to Airport Operators 
and Airlines Regarding Control of Pollution From Ground Support 
Equipment (GSE) for the Houston/Galveston (HGA) Ozone Nonattainment 
Area and a Non-Road Large Spark-Ignition Engine Rule for the HGA and 
Dallas/Fort Worth (DFW) Ozone Nonattainment Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving a State Implementation Plan (SIP) 
revision submitted by the State of Texas. This rule making covers two 
separate actions. The EPA is approving: Administrative Orders and 
Memoranda of Agreement (MOA) requiring owners and operators at major 
airports in the HGA area to implement reductions in oxides of nitrogen 
(NOX) emissions for sources under their control, primarily 
GSE; and a rule requiring that non-road large spark-ignition engines of 
25 horsepower (hp) or larger in all counties of the State of Texas 
conform to requirements identical to Title 13 of the California Code of 
Regulations, Chapter 9. This rule includes the HGA and DFW ozone 
nonattainment areas.
    This new rule and the orders will contribute to attainment of the 
ozone standard in the HGA and DFW ozone nonattainment areas. The EPA is 
approving these revisions to the Texas SIP to regulate emissions of 
NOX in accordance with the requirements of the Federal Clean 
Air Act (the Act).

DATES: This final rule is effective on December 14, 2001.

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 78753.

FOR FURTHER INFORMATION CONTACT: Herbert R. Sherrow, Jr., Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7237.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means EPA.

What Action Is EPA Taking Today?

    We are granting final approval of Texas' administrative orders 
requiring owners and operators at major airports in the HGA area to 
implement reductions in NOX emissions for sources under 
their control and a rule requiring that non-road large spark-ignition 
engines of 25 hp or larger in all counties of the State of Texas 
conform to requirements identical to Title 13 of the California Code of 
Regulations, Chapter 9. This rule includes the HGA and DFW ozone 
nonattainment areas. A proposed

[[Page 57220]]

approval of the large spark-ignition rules for the HGA ozone 
nonattainment area was published at 66 FR 36226 on July 11, 2001, and a 
proposed approval of the non-road large spark-ignition rules for the 
DFW nonattainment area was published at 66 FR 16432 on March 26, 2001. 
A proposed approval of the Administrative Orders and Memoranda of 
Agreement issued to airport owners and airlines regarding pollution 
controls on GSE for the HGA area was published at 66 FR 36226 on July 
11, 2001.

What Are the Clean Air Act Requirements?

    Section 172 of the Act provides the general requirements for 
nonattainment plans. Section 172(c)(6) and section 110 require SIPs to 
include enforceable emission limitations, and such other control 
measures, means or techniques as well as schedules and timetables for 
compliance, as may be necessary to provide for attainment by the 
applicable attainment date. Today's SIP revision involves approval of 
two of a collection of controls adopted by the State to achieve the 
ozone standard in the DFW and HGA ozone nonattainment areas as required 
under section 172. EPA approval of this SIP revision is governed by 
section 110 of the Act.

Why Is EPA Taking This Action?

    We are taking this action because the State submitted these SIP 
revisions and they are necessary to achieve the National Ambient Air 
Quality Standards in the DFW and HGA ozone nonattainment areas.

What Is Included in the State's Non-Road Large Spark-Ignition Rule?

    Texas developed a non-road large spark-ignition (LSI) engine 
strategy which establishes emission requirements for non-road, LSI 
engines 25 hp and larger for model year 2004 and subsequent model-year 
engines, and all equipment and vehicles that use such engines, by 
requiring non-road LSI engines in all counties in the State to meet 
emission limits equivalent to, and certified in, a manner identical to 
13 California Code of Regulations, Chapter 9. Texas has met the 
statutory and regulatory requirements for adoption of the California 
LSI program. All counties in the State are affected by this rule, 
including counties in the HGA and DFW ozone nonattainment areas.

What Is Included in the State's Airport Ground Support Equipment 
Orders?

    The State signed an Agreed Order with Continental Airlines for its 
operations at Houston's George Bush Intercontinental Airport on October 
18, 2000, and signed a similar Agreed Order with Southwest Airlines for 
its operations at William Hobby Airport on December 6, 2000. The Orders 
make enforceable specific local emission reductions of NOX 
from sources under the airlines' control. On October 18, 2000, Texas 
approved a Memorandum of Agreement with the City of Houston to bring 
about additional reductions from operations in the Houston Airport 
System. The sum of these reductions is equal to those reductions 
required in the HGA Attainment Demonstration SIP.

What Did the State Submit?

    On April 30, 2000, the Governor of Texas submitted to us revisions 
to the 30 TAC, Chapter 114, ``Control of Air Pollution From Motor 
Vehicles,'' as a revision to the SIP for the DFW area. That submission 
included requirements that non-road large spark-ignition engines of 25 
hp or larger conform to Title 13 of the California Code of Regulations, 
Chapter 9. For further discussion of the submittal, see the proposed 
approval, 66 FR 16432, March 26, 2001, and accompanying Technical 
Support Document.
    On December 22, 2000, the Governor of Texas submitted to us 
revisions to the 30 TAC, Chapter 114, ``Control of Air Pollution From 
Motor Vehicles,'' as a revision to the SIP for the HGA area. That 
submission included requirements that non-road large spark-ignition 
engines of 25 horsepower (hp) or larger conform to Title 13 of the 
California Code of Regulations, Chapter 9; and NOX 
reductions from airport Ground Support Equipment (GSE). For further 
discussion of the submittal, see the proposed approval, 66 FR 36226 
(July 11, 2001) and accompanying Technical Support Document.
    Also on December 22, 2000, the Texas Natural Resource Conservation 
Commission (TNRCC) submitted orders with airlines and airport operators 
in the HGA area for NOX reductions. For further discussion 
of the submittal, see the proposed approval, 66 FR 36226 (July 11, 
2001) and accompanying Technical Support Document.

What Comments Did EPA Receive in Response to the Proposed Approval 
of Agreed Orders for HGA Airport Ground Support Equipment?

    EPA received comments from Environmental Defense. A summary of the 
comments received and EPA's response is presented below.

A. The Orders Do Not Require the Specific Levels of Emissions 
Reductions Claimed in the SIP

    Comment: The agreements do not limit total emissions from airport 
GSE equipment. The Attainment Demonstration SIP assumes that total 
controlled emissions in 2007 will be 0.5 tpd, 90% below the 5.65 tpd 
that TNRCC projected from uncontrolled GSE NOX emissions in 
the HGA nonattainment area in 2007. These agreements afford no 
certainty that the 0.5 tpd level of emissions will be achieved (even if 
one considers the flexibility provided to parties to seek reductions 
outside of the GSE fleet).
    Response: The agreed orders require percentage reductions from a 
1996 baseline which achieve the same purpose as an emissions 
limitation. The reductions specified in each order are enforceable 
against the owner/operator of the equipment, thus providing a degree of 
certainty that the reductions will take place.

B. The Orders Are Not Enforceable

    Comment: The orders are not enforceable within EPA's national 
guidance for determining enforceability.
    Response: The orders are enforceable through December 31, 2007. 
These are administrative orders that were adopted by the TNRCC under 
applicable State law and enforceable by TNRCC or citizens. These orders 
have been submitted by the Governor to EPA as a SIP revision and, upon 
the effective date of this action will be federally enforceable.

C. The Agreed Orders and MOAs Are Unlikely To Produce the Emissions 
Reductions for Which TNRCC Takes Credit in the Attainment Demonstration 
SIP

    Comment: It is quite unlikely that the 0.5 tpd target assumed in 
the SIP will be achieved. The target will not be achieved if either of 
the following is true: (1) Growth exceeds the projected amount, such 
that the total uncontrolled GSE emissions in 2007 (from all airlines) 
are greater than 5.65 tpd; or (2) the actual reductions that will 
result from Southwest's and Continental's use of Reasonably Available 
Control Considering Cost and Best Available Technology on post-1996 
equipment are less than anticipated. EPA must discount the emission 
reduction credit assigned to these agreements in the Attainment 
Demonstration SIP.
    Response: The growth projections were developed using EPA approved 
methodology and are appropriate for planning purposes. The orders 
require a

[[Page 57221]]

phase-in of new GSE which should permit future emission inventories to 
monitor the progress of the reductions. The State has committed to a 
2004 mid-course review of all measures and to make any necessary 
adjustments to ensure the reductions claimed are being achieved. Growth 
exceeding the projections would be identified during that review and 
would necessitate implementation of additional measures to offset such 
growth. Further, SIPs are planning tools and cannot guarantee future 
absolute certainty. However, the reductions approved are enforceable, 
ensuring a high degree of certainty. For the reasons stated, we believe 
there is no basis for discounting the emission reduction credit taken 
by the State at this time; but, as previously stated, additional 
reductions will be required at the mid-course correction if the 
reductions claimed are not achieved.

D. The Orders Expire in 2007

    Comment: There needs to be ample time for EPA and the public to 
verify performance under the agreement before the agreements expire.
    Response: The Orders are in effect through the attainment year. The 
State should be preparing a maintenance plan to take effect after the 
attainment year, which will provide opportunity for us and the public 
to verify performance under the Orders before they expire. In addition, 
the State has committed to a 2004 mid-course review of all measures and 
to make any necessary adjustments to ensure the reductions claimed are 
being achieved. This commitment includes the requirement to institute 
additional measures if necessary to account for any newly discovered 
shortfall in reductions.

What Comments Did EPA Receive in Response to the Proposed Rule for 
Non-Road Large Spark-Ignition Engines?

    We did not receive any comments on the Non-Road Large Spark-
Ignition Engine rule for either HGA or DFW.

EPA's Rulemaking Action

    We are granting final approval of Texas' Agreed Orders with the 
major airlines operating at the major airports in the HGA area and the 
Memorandum of Agreement with the City of Houston. We are also granting 
final approval of Texas' Non-Road Large-Spark Engine rule for the HGA 
and DFW areas. We are approving these revisions to the Texas SIP to 
regulate emissions of NOX pursuant to sections 110 and 172 
of the Act.

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. section 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 the 
rule in this action 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. section 804(2). In addition, Section 804 exempts from section 
801 the following types of rules: (1) Rules of particular 
applicability; (2) rules relating to agency management or personnel; 
and (3) rules of agency organization, procedure, or practice that do 
not substantially affect the rights or obligations of non-agency 
parties. 5 U.S.C. section 804(3). EPA is not required to submit a rule 
report regarding the Orders contained in this action under section 801 
because this is a rule of particular applicability.
    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 14, 2002. 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, Hydrocarbons,

[[Page 57222]]

Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements.

    Dated: October 15, 2001.
Gregg A. Cooke,
Regional Administrator, Region 6.

    Part 52 of chapter I, title 40, 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:
    a. In the table in paragraph (c) under Chapter 114 (Reg 4) 
following Section 114.309 by adding under the heading ``Subchapter I--
Non-Road Engines'' the new heading ``Division 3--Non-Road Large Spark-
Ignition Engines'' and individual entries for Sections 114.420, 
114.421, 114.422, 114.427, and 114.429;
    b. In the table in paragraph (d) entitled ``EPA Approved Texas 
Source-Specific Requirements'' by adding to the end of the table Agreed 
Order No. 2000-0826-SIP for Continental Airlines and Agreed Order No. 
2000-0827-SIP for Southwest Airlines;
    c. In the table in paragraph (e) entitled ``EPA Approved Texas Non-
Regulatory Provisions and Quasi-Regulatory Measures in the Texas SIP by 
adding to the end of the table Houston Air Port System Memorandum of 
Agreement. The additions read as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) *  *  *

                                    EPA Approved Regulations in the Texas SIP
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                                                                State
          State citation                Title/subject        submittal/     EPA approval        Explanation
                                                            approval date       date
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*                  *                  *                  *                  *                  *
                                                        *
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                        Chapter 114 (Reg 4)--Control of Air Pollution From Motor Vehicles
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*                  *                  *                  *                  *                  *
                                                        *
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                                         Subchapter I--Non-Road Engines
                                Division 3--Non-Road Large Spark-Ignition Engines
----------------------------------------------------------------------------------------------------------------
Section 114.420...................  Definitions..........      04/19/2000  [Insert 11/14/
                                                                               01 Federal
                                                                                 Register
                                                                                   Cite.]
Section 114.421...................  Emission                   12/06/2000  [Insert 11/14/
                                     Specifications.                           01 Federal
                                                                                 Register
                                                                                   Cite.]
Section 114.422...................  Control Requirements.      04/19/2000  [Insert 11/14/
                                                                               01 Federal
                                                                                 Register
                                                                                   Cite.]
Section 114.427...................  Exemptions...........      04/19/2000  [Insert 11/14/
                                                                               01 Federal
                                                                                 Register
                                                                                   Cite.]
Section 114.429...................  Affected Counties and      12/06/2000  [Insert 11/14/
                                     Compliance Schedules.                     01 Federal
                                                                                 Register
                                                                                   Cite.]
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*                  *                  *                  *                  *                  *
                                                        *
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    (d) *  *  *

                                 EPA Approved Texas Source-Specific Requirements
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                                       Permit or order          State       EPA approval
          Name of source                    number         effective date       date              Comment
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
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Continental Airlines at George      Agreed Order No. 2000-     10/18/2000  [Insert 11/14/  HGA, Texas 1-hour
 Bush Intercontinental Airport,      0826-SIP.                               2001 Federal   ozone standard
 Houston, Texas.                                                                 Register   attainment
                                                                                   Cite.]   demonstrations.
Southwest Airlines at William       Agreed Order No. 2000-     12/06/2000  [Insert 11/14/  HGA, Texas 1-hour
 Hobby Airport, Houston, Texas.      0827-SIP.                               2001 Federal   ozone standard
                                                                                 Register   attainment
                                                                                   Cite.]   demonstrations.
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    (e) *  *  *

[[Page 57223]]



           EPA Approved Texas Non-Regulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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                                    Applicable geographic  State approval/  EPA approval
       Name of SIP provision        or nonattainment area  submittal date       date              Comment
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
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Memorandum of Agreement between     Houston/Galveston          10/18/2000  [Insert 11/14/  HGA, Texas 1-hour
 TNRCC and Houston Airport System.   Area Ozone                              2001 Federal   ozone standard
                                     Nonattainment Area.                         Register   attainment
                                                                                   Cite.]   demonstrations.
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[FR Doc. 01-27582 Filed 11-13-01; 8:45 am]
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