[Federal Register Volume 68, Number 127 (Wednesday, July 2, 2003)]
[Rules and Regulations]
[Pages 39457-39460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16579]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-42-1-6274a; FRL-7521-2]


Approval and Promulgation of Implementation Plans for Texas; 
Approval of Section 179B Demonstration of Attainment, Carbon Monoxide 
Motor Vehicle Emissions Budget for Conformity, and Contingency Measure 
for El Paso Carbon Monoxide Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is approving, through direct final action, a revision 
to the Texas State Implementation Plan (SIP), submitted to show 
attainment of the Carbon Monoxide (CO) National Ambient Air Quality 
Standard (NAAQS) in the El Paso CO nonattainment area, but for 
emissions emanating from outside of the United States. The EPA is also 
approving the El Paso area's CO emissions budget, and a CO contingency 
measure requirement. 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 September 2, 2003, without further 
notice, unless we receive adverse comment by August 1, 2003. If we 
receive such comment, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 
6 Office listed below. 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, Suite 700, Dallas, TX 75202-2377.

[[Page 39458]]

    Texas Commission on Environmental Quality, 12100 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 
(214) 665-7186.

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

Table of Contents

I. What is the background for this action?
II. What did the State submit and how did we evaluate it?
    A. Modeling.
    B. CO motor vehicle emissions budget.
    C. Contingency measures.
    D. Has the EPA approved other parts of the SIP before now?
    E. How close is El Paso to attainment of the CO standard?
III. What is our final action?
IV. Why is this a ``final action?''
V. Regulatory Assessment Requirements.

I. What Is the Background for This Action?

    El Paso, Texas, was designated nonattainment for CO and classified 
as moderate under sections 107(d)(4)(A) and 186(a) of the CAA. The El 
Paso CO nonattainment area is restricted to a narrow strip along the 
Rio Grande, adjacent to Ciudad Juarez, Mexico.
    The CAA requires that CO 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 CO standard 
by the CAA statutory deadline ``but for emissions emanating from 
outside the United States.'' This is the type of demonstration that the 
State of Texas has made.

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 CO moderate nonattainment area via a letter 
dated September 27, 1995, which was supplemented in February 1998. This 
included air quality modeling, under section 179B of the CAA, that 
demonstrates that El Paso would attain the CO NAAQS, but for emissions 
emanating from outside of the United States.
    El Paso and Juarez, Mexico, share an air-shed. However, emission 
inventory data was not available for Juarez, so modeling of the entire 
air-shed 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, Texas used two models, RAM, and CAL3QHC. RAM 
modeling was used to estimate background CO concentrations, and CAL3QHC 
was used to estimate hot-spot concentrations, or those areas that are 
the most likely to produce the highest concentrations of CO. Using RAM 
modeling, Texas identified the worst-case meteorological episode 
conducive for CO concentration. This was subsequently used in the 
CAL3QHC modeling to determine CO concentrations at six selected 
intersections. These concentrations were then combined with hourly 
variables in the 8-hour period with the highest RAM-determined 
background CO concentration. The modeling results for El Paso indicate 
that the area would attain the CO standard but for emissions emanating 
from outside the United States. Texas performed its CO modeling 
analyses for El Paso, according to EPA guidance, using conservative 
inputs to EPA guideline models.

B. CO Motor Vehicles Emissions Budget

    The Governor of Texas submitted the 1996 CO motor vehicle emissions 
budget of 96.90 tons/day on September 27, 1995. The finding that the 
budget of the El Paso CO attainment plan was adequate was made in a 
letter on September 1, 1999.\1\ It is EPA's conclusion that the SIP 
demonstrates attainment with the budget and contains the measures 
necessary to support the budget. Today, we are approving this budget, 
under section 176(c) of the CAA.
---------------------------------------------------------------------------

    \1\ EPA later determined that this motor vehicle emission budget 
was adequate for transportation conformity purposes (see 64 FR 
55911, October 15, 1999).
---------------------------------------------------------------------------

C. Contingency Measures

    Nonattainment areas must adopt contingency measures that are 
implemented in the event the area does not attain the standard by the 
attainment date. Under section 187(a)(4) of the CAA's CO requirements, 
El Paso must have at least a basic Inspection and Maintenance (I/M) 
program. However, El Paso was also bound to the CAA's ozone 
requirements for serious areas, which under section 182(c)(3), requires 
an enhanced program. These two programs yield different levels of CO 
reductions. The difference in emissions reductions could be called 
incremental credit. That is, incremental reductions in CO are 
reductions produced by a control program more stringent than required 
by CO provisions in the CAA.
    The El Paso area is not subject to the section 187(a)(2)(A) Vehicle 
Miles Traveled (VMT) forecasts and the section 187(a)(3) contingency 
measures requirements, because its design value was below 12.7 ppm. It 
is, however, subject to the section 172(c)(9) contingency measures 
requirement. The CAA does not specify how many contingency measures are 
needed or the magnitude of the emission reductions (or VMT reductions) 
they must provide. In the EPA's General Preamble,\2\ EPA provides its 
belief that for moderate areas that fail to attain by the attainment 
date, States may select contingency measures for the reduction of CO 
emissions. EPA believes that one appropriate choice of contingency 
measures would be to provide for the implementation of sufficient VMT 
reductions or emissions reductions to counteract the effect of 1 year's 
growth in VMT. The State used this approach to calculate the magnitude 
of emission reductions it must provide, which is approximately 10.4 
tons per day of CO reductions in El Paso. A basic I/M program would 
produce 43 tons per day of CO reductions. The low-enhanced I/M program 
approved for El Paso was credited in the SIP for 89 tons per day of CO 
reductions, which is 46 tons per day of CO reductions beyond the 
reductions obtained from a basic program. This is well above the 10.4 
tons per day the State calculated was required to meet the contingency 
requirements. The more stringent requirements of the low-enhanced 
program generate these incremental reductions in CO, thus fulfilling 
the requirement. The EPA is approving all of the incremental credit of 
46 tons per day into the SIP as meeting the CO contingency measures 
requirement.
---------------------------------------------------------------------------

    \2\ EPA has issued a ``General Preamble'' describing EPA's 
preliminary views on how EPA intends to review SIPs and SIP 
revisions submitted under title I of the Act (57 FR 13498, April 16, 
1992, and 57 FR 18070, April 28, 1992).
---------------------------------------------------------------------------

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

    All CO nonattainment areas must adopt SIPs that contain the 
following core elements:\3\
---------------------------------------------------------------------------

    \3\ As outlined in section 187 of the CAA, additional 
requirements pertain to moderate nonattainment areas with design 
values above 12.7 ppm, and to severe nonattainment areas.

---------------------------------------------------------------------------

[[Page 39459]]

    1. An inventory of all actual emissions of CO sources in the area 
(sections 187(a)(1) and 172(c)(3) of the CAA);
    2. A revised inventory every three years (sections 187(a)(5) and 
172(c)(3));
    3. A permit program for the construction and operation of new and 
modified major stationary sources of CO (sections 172(c)(5)and 173);
    4. Contingency measures that are to be implemented if the area 
fails to attain the standard by the deadline (section 172(c)(9));
    5. An I/M program that meets applicable requirements (section 
187(a)(4)); and
    6. An oxygenated fuels program, if the design value was 9.5 ppm or 
above based on 1988 and 1989 data (section 211(m)); The EPA:
    1. Approved an emissions inventory on September 12, 1994 (59 FR 
46766);
    2. Approved an oxygenated fuels program on September 12, 1994 (59 
FR 46766);
    3. Approved a permit program for new and modified major sources of 
CO on September 27, 1995 (60 FR 49781);
    4. Received a periodic update of the CO inventory;
    5. Approved the Texas Motorist Choice Vehicle Inspection and 
Maintenance Program (includes El Paso) on November 14, 2001 (66 FR 
57261); and
    6. Is approving a CO contingency measure in this action.

E. How Close Is El Paso to Attainment of the CO Standard?

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

III. What Is Our Final Action?

    The EPA is approving a revision to the Texas SIP, which was 
submitted to show attainment of the CO standard in the El Paso CO 
nonattainment area by the applicable attainment date, but for emissions 
from Mexico. The revision satisfies section 179B of the CAA.
    The EPA believes that all section 179B approvals should be on a 
contingency basis. This modeling-based approval is valid only as long 
as the area's modeling continues to show that the El Paso CO area would 
be in attainment, but for emissions from outside the United States. If 
the EPA later determines by rulemaking that additional CO reductions 
are needed from sources in the United States, the EPA will require 
Texas to submit a new CO attainment SIP for El Paso.
    The EPA is also approving El Paso's CO motor vehicle emissions 
budget, under section 176(c) of the CAA. Lastly, the EPA is approving 
the use of 46 tons per day in incremental CO reduction credits from the 
Texas low-enhanced vehicle inspection and maintenance program, as 
fulfillment of the State's CO attainment contingency measure 
requirement for the El Paso nonattainment area under section 172(c)(9).

IV. Why Is This a ``Final Action?''

    We are publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse comment. 
However, in the ``Proposed Rules'' section of today's Federal Register 
publication, we are publishing a separate document that will serve as 
the proposal to approve the section 179B attainment demonstration SIP, 
the associated motor vehicle emissions budget, and the attainment 
contingency measures for the El Paso CO nonattainment area, if adverse 
comments are received. This rule will be effective on September 2, 
2003, without further notice unless we receive adverse comment by 
August 1, 2003. If EPA receives 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.

V. Regulatory Assessment 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 (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

[[Page 39460]]

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 September 2, 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, Carbon monoxide, 
Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: June 20, 2003.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.

0
Chapter I, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7402 et seq.

Subchapter SS--Texas

0
2. The table in Sec.  52.2270(e) entitled ``EPA approved nonregulatory 
provisions and quasi-regulatory measures in the Texas SIP'' is amended 
by adding to the end of the table three entries for the El Paso carbon 
monoxide nonattainment area to read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *

                                  EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        State
         Name of SIP provision           Applicable geographic or    submittal/          EPA approval date                       Comments
                                            nonattainment area     effective date
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Section 179B Demonstration of            El Paso CO nonattainment        09/27/95  07/02/03 Federal Register      Supplemented 02/11/98.
 Attainment for Carbon Monoxide for El    area.                                     page number.
 Paso.
Carbon Monoxide On-Road Emissions        El Paso CO nonattainment        09/27/95  07/02/03.....................  ......................................
 Budget for Conformity.                   area.
Contingency Measure for El Paso Carbon   El Paso CO nonattainment        09/27/95  07/02/03 Federal Register      ......................................
 Monoxide Area.                           area.                                     page number.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 03-16579 Filed 7-1-03; 8:45 am]
BILLING CODE 6560-50-P