[Federal Register Volume 69, Number 112 (Thursday, June 10, 2004)]
[Rules and Regulations]
[Pages 32450-32454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13175]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-70-2-7347a; FRL-7672-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final approval.

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

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

ADDRESSES: Submit your comments, identified by File ID No. TX-70-2-
7347, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Mr Thomas Diggs at [email protected]. Please 
also cc the person listed in the FOR FURTHER INFORMATION CONTACT 
section below.
     Fax: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-
L), at 214-665-7263.
     Mail: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Thomas Diggs, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Please include the text ``Public comment on File ID 
No. TX-70-2-7347'' in the subject line of the first page of your 
comments. EPA's policy is that all comments received will be included 
in the public file without change, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov, or 
e-mail. The federal regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public file and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    Official File: Copies of the documents relevant to this action are 
in the official file which is available at the Air Planning Section 
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a 15 cent per page 
fee for making photocopies of documents. On the day of the visit, 
please check in at the EPA

[[Page 32451]]

Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    Copies of any State submittals and EPA's technical support document 
are also available for public inspection at the State Air Agency listed 
below during official business hours by appointment: Texas Commission 
on Environmental Quailty, Office of Air Quality, 12124 Park 35 Circle, 
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Joe Kordzi, Air Planning Section (6PD-
L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone 
(214) 665-7186; fax number 214-665-7263; E-Mail address 
[email protected].

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

Outline

I. What is the background for this action?
II. What did the state submit and how did we evaluate it?
    A. Modeling.
    B. Additional basin-wide modeling.
    C. How close is El Paso to attainment of the ozone standard?
    D. Motor vehicle emissions budget.
    E. Has the EPA approved other parts of the SIP before now?
III. What is our final action?
IV. Why is this a ``final action?''
V. Statutory and Executive Order Reviews.

I. What Is the Background for This Action?

    El Paso, Texas, was designated nonattainment for ozone and 
classified as serious under sections 107(d)(4)(A) and 181(a) of the 
CAA. The El Paso nonattainment area consists of El Paso County. Under 
section 181(a), serious areas must attain the ozone NAAQS by November 
15, 1999.
    The CAA requires that ozone nonattainment areas designated moderate 
and above demonstrate attainment through air quality modeling or any 
other analytical method determined by the Administrator to be at least 
as effective. Section 179B of the CAA contains special provisions for 
nonattainment areas that are affected by emissions emanating from 
outside the United States. Under section 179B, the EPA will approve a 
SIP if the area meets all other CAA requirements, and establishes that 
implementation of the plan would achieve attainment of the ozone 
standard by the CAA statutory deadline ``but for emissions emanating 
from outside the United States.'' This is the type of demonstration 
made by the State of Texas.

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

A. Modeling

    The Governor of the State of Texas submitted a revision to the 
Texas SIP for the El Paso ozone nonattainment area via a letter dated 
October 3, 1994. This included air quality modeling, under section 179B 
of the CAA, that demonstrates that El Paso would attain the ozone 
NAAQS, but for emissions emanating from outside of the United States. 
The State of Texas submitted a revision via a letter dated August 9, 
1996, showing that the revised inspection and maintenance program, and 
delay in implementation, would have no significant effect on the 
validity of the attainment demonstration submitted in 1994.
    El Paso and Juarez, Mexico, share a common airshed. However, 
emission inventory data was not available for Juarez, so modeling of 
the entire airshed was not possible. In such an instance, section 179B 
allows an area such as El Paso to perform modeling using only U.S. 
pollutant emission data in performing the attainment demonstration.
    In its demonstration, the Texas Commission on Environmental Quality 
(TCEQ) used the Urban Airshed Model (UAM) version IV, an EPA-approved 
photochemical grid model, to develop the attainment demonstration for 
the El Paso area. Texas performed its ozone modeling analyses for El 
Paso, according to EPA guidance. For further details, see the Technical 
Support Document.
    The State had previously submitted to the EPA the 15 percent VOC 
Reasonable Further Progress (RFP) SIP for the El Paso area (63 FR 
62943, November 10, 1998), as required by section 182(b)(1) of the CAA. 
The 15 percent RFP SIPs contain regulations that are estimated to 
reduce VOC emissions in each area by 15 percent from 1990 baseline 
levels. The modeling results indicate that with the 15 percent RFP 
reductions, the area would attain the 1-hour ozone standard, but for 
emissions emanating from outside the United States, by November 15, 
1996, which is before the area's applicable attainment deadline of 
November 15, 1999. The predicted domain-wide maximum ozone 
concentration for 1996 was significantly below the NAAQS of 120 ppb.

B. Additional Basin-Wide Modeling

    Section 182(c)(2) of the CAA requires each serious and above ozone 
nonattainment area to submit a SIP revision by November 15, 1994, which 
describes, in part, how the area will achieve an actual VOC emission 
reduction from the baseline emissions of at least 3 percent of baseline 
emissions per year averaged over each consecutive 3-year period 
beginning 6 years after enactment (i.e., November 15, 1996), until the 
area's attainment date.
    Via a letter from A. Stanley Meiburg of EPA Region 6 to Ms. Beverly 
Hartsock of the then Texas Natural Resource Conservation Commission, 
dated August 9, 1994, EPA stated its position that if the section 179B 
attainment demonstration SIP showed the El Paso area would attain by 
November 15, 1996, the attainment deadline for moderate areas, the 
additional 9 percent in emission reductions required in the post-96 
Rate of Progress (ROP) would be deferred. This deferral was effective 
until Juarez monitoring data and emission inventory data became 
available to perform basin-wide modeling of the El Paso/Jurez airshed.
    Annex V of the 1983 La Paz Agreement between the United States and 
Mexico, which addressed environmental concerns along the border, calls 
for basin-wide modeling to be accomplished for the El Paso/Juarez 
airshed. This modeling was performed during the 1998-2000 period, but 
was not deemed to be valid to ascertain the types of controls necessary 
throughout the airshed in order to meet ozone air quality standards on 
both the U.S. and the Mexico side of the border. The main problem with 
model performance was believed to be an inadequate VOC emission 
inventory for Juarez.
    However, subsequent to the submission of this attainment 
demonstration, the El Paso area has now attained the 1-hour ozone 
standard by the accumulation of three consecutive years of quality-
assured ambient air data that show no violations of the standard. The 
most recent data provided by the State of Texas, available through the 
EPA Aerometric Information and Retrieval Service, demonstrate the area 
continues to attain the 1-hour standard. Therefore, EPA does not 
anticipate a need to trigger the commitment for basin-wide modeling.
    Based on EPA's ``Clean Data Policy'', if EPA made an attainment 
finding, we would no longer require the 9 percent ROP plan. Therefore, 
since the El Paso area has data showing attainment of the ozone 
standard without the 9 percent ROP plan, we believe that it is 
reasonable to defer that ROP requirement. Complete details of EPA's 
rationale are included in the Clean Data Policy. If the area violates 
the 1-hour ozone standard before a future redesignation, EPA will 
review the

[[Page 32452]]

conclusion to defer the 9 percent ROP requirement.

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

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

D. Motor Vehicle Emissions Budget

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

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

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

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

III. What Is Our Final Action?

    The EPA is approving a revision to the Texas SIP, which was 
submitted to show attainment of the one-hour ozone standard in the El 
Paso ozone nonattainment area by the applicable attainment date, but 
for emissions from Mexico. The revision satisfies section 179B of the 
CAA. The EPA is electing to defer the post-1996 RFP requirement. In so 
doing, the EPA is finding that, based on the States's section 179B 
attainment demonstration the El Paso area would attain by November 15, 
1996, the State's enforceable commitment to perform basin-wide modeling 
when the necessary Juarez information becomes available, and monitoring 
data now showing attainment, a post-1996 plan with an additional 9 
percent of reductions from November 1996 through November 1999, is not 
necessary for attainment in the El Paso area.
    The EPA believes that all section 179B approvals should be on a 
contingency basis. Therefore, this section 179B modeling-based approval 
is valid only as long as the area's modeling data continue to show that 
the El Paso ozone area would be in attainment, but for emissions from 
outside the United States. If El Paso again experiences one-hour ozone 
violations, or if future successful basin-wide modeling demonstrates 
the El Paso area could achieve attainment of the one-hour standard 
through reduction measures typically employed by serious nonattainment 
areas, the EPA will review the decision to defer the 9 percent ROP 
requirement, and Texas may be required to submit a new post-1996 ROP 
plan for El Paso.
    The EPA is also approving El Paso's VOC and NOX motor 
vehicle emissions budgets, under section 176(c) of the CAA.

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

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

[[Page 32453]]

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves State law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under State law and does 
not impose any additional enforceable duty beyond that required by 
State law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 9, 2004. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements.

    Dated: May 27, 2004.
Richard E. Greene,
Regional Administrator, Region 6.

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 two entries to the end of the table to read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *
* * * * *

              EPA approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                            State
                                        Applicable        submittal/
      Name of SIP Provision           geographic  or      effective     EPA approval date         Comments
                                    nonattainment area       date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 179B Attainment            El Paso ozone            10/03/94  6/10/04               Approval includes a
 Demonstration Report.              nonattainment area.                                      revision submitted
                                                                                             08/09/96.
Deferral of the post 1996 RFP....  El Paso ozone         ...........  6/10/04
                                    nonattainment area.
Enforceable commitment to conduct  El Paso ozone            10/03/94  6/10/04
 additional modeling for the area   nonattainment area.
 as new data become available.
 This modeling effort will be
 conducted under the auspices of
 the 1983 La Paz Agreement
 between the United States and
 Mexico.

[[Page 32454]]

 
VOC and NOX Motor Vehicle          El Paso ozone            12/11/97  6/10/04
 Emissions Budget for Conformity.   nonattainment area.
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[FR Doc. 04-13175 Filed 6-9-04; 8:45 am]
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