[Federal Register Volume 67, Number 220 (Thursday, November 14, 2002)]
[Rules and Regulations]
[Pages 68941-68944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28844]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-144-1-7581; FRL-7407-1]


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.

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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 (214) 665-7247, e-mail address: [email protected].

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

[[Page 68942]]

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.

[[Page 68943]]

    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 NOX 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,

[[Page 68944]]

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 Sec.  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:


Sec.  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
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                                  Applicable
                                geographic or        State
    Name of SIP provision       nonattainment     submittal/       EPA approval date             Comments
                                     area       effective date
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                                                  * * * * * * *
Speed Limit Reduction........  Houston/                9/26/02  11/14/02 and FR cite.    Section 6.3.12.
                                Galveston, TX.
Voluntary Mobile Emissions     Houston/                9/26/02  11/14/02 and FR cite.    .......................
 Program.                       Galveston, TX.
                                                  * * * * * * *
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[FR Doc. 02-28844 Filed 11-13-02; 8:45 am]
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