[Federal Register Volume 69, Number 209 (Friday, October 29, 2004)]
[Rules and Regulations]
[Pages 63066-63069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24127]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2004-TX-0002; FRL-7830-8]


Approval and Promulgation of Implementation Plans; Texas; 
Memorandum of Agreement Between Texas Council on Environmental Quality 
and the North Central Texas Council of Governments Providing Emissions 
Offsets to Dallas Fort Worth International Airport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving a State 
Implementation Plan (SIP) revision submitted by the Texas Commission on 
Environmental Quality (TCEQ) on February 23, 2004. This revision 
concerns the Dallas/Fort Worth ozone nonattainment area. Specifically, 
EPA is approving incorporation of a Memorandum of Agreement (MOA) 
between the TCEQ and the North Central Texas Council of Governments 
(NCTCOG) into the SIP. This MOA commits the NCTCOG to provide the 
Dallas-Fort Worth International Airport with emissions offsets in the 
amount of 0.18 tons per day (tpd) of nitrogen oxides (NOX) 
and 0.04 tpd of volatile organic compounds (VOCs) in 2007 and to adjust 
the modeled 2015 on-road emission estimates to reflect an increase of 
1.17 tpd of NOX and 0.26 tpd of VOCs, which must be 
accommodated in future transportation conformity determinations. This 
action is necessary in order for the Federal Aviation Administration 
(FAA) to address requirements under the general conformity regulations.

DATES: This rule is effective on December 28, 2004 without further 
notice, unless EPA receives adverse comment by November 29, 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 Regional Materials in 
EDocket (RME) ID No. R06-OAR-2004-TX-0002, by one of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://docket.epa.gov/rempub/. Regional 
Materials in EDocket (RME), EPA's electronic public docket and comment 
system, is EPA's preferred method for receiving comments. Once in the 
system, select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the online instructions for submitting 
comments.
     EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6comment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Mr. Thomas Diggs at [email protected]. Please 
also send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-
L), at fax number (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: Direct your comments to RME ID No. R06-OAR-2004-TX-
0002. EPA's policy is that all comments received will be included in 
the public file without change and may be made available online at 
http://docket.epa.gov/rmepub/, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
through Regional Materials in EDocket (RME), regulations.gov or e-mail 
if you believe that it is CBI or otherwise protected from disclosure. 
The EPA RME Web site and the federal regulations.gov website are 
``anonymous access'' systems, 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 RME or 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 and any form of encryption, and should be 
free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
Regional Materials in EDocket (RME) index at http://docket.epa.gov/rempub/. Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available materials relevant to this 
rulemaking are available either electronically in RME or 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

[[Page 63067]]

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 Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.
    The State submittal is 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: Peggy Wade, Air Planning Section (6PD-
L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 
700, Dallas, Texas 75202-2733, telephone (214) 665-7247; fax number 
(214) 665-7263; e-mail address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us'' or ``our'' is used, we mean the EPA.

Outline

I. What Action is EPA Taking?
II. Why Was this SIP Revision Submitted?
III. What is the Effect of this Action?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    On January 14, 2004, the TCEQ adopted a Memorandum of Agreement 
(MOA) between the Commission and the NCTCOG's Regional Transportation 
Council (RTC). At the same time, TCEQ adopted a revision to the Texas 
SIP to incorporate this MOA into it. This MOA commits the RTC to 
provide the Dallas-Fort Worth International Airport with emissions 
offsets in the amount of 0.18 tpd of NOX and 0.04 tpd of 
VOCs in 2007 and to adjust the modeled 2015 on-road mobile source 
emissions estimates by an increase of 1.17 tpd and 0.26 tpd of 
NOX and VOCs, respectively, in future transportation 
conformity demonstrations.
    EPA is taking direct final action to approve the incorporation of 
this MOA into the DFW SIP.

II. Why Was This SIP Revision Submitted?

    The Dallas-Fort Worth International Airport (DFWIA) notified the 
TCEQ and EPA of upcoming aviation projects which would trigger the need 
for a general conformity determination by the Federal Aviation 
Administration (FAA). These projects include construction of a new 
terminal (Terminal F), addition of a new cargo complex, improvement of 
airport parking, changes to current operating restrictions of existing 
terminal facilities, and other related projects included in the DFW 
Airport Master Plan.
    The DFW area is a nonattainment area for the air pollutant ozone, 
and is operating under a State Implementation Plan (SIP) to control the 
emissions of NOX and VOCs, which are ozone precursor 
pollutants. Under the Federal (40 CFR part 51) and Texas (30 TAC 
101.30) general conformity rules, certain types of Federal actions 
require a determination as to whether the total emissions from the 
action conform with the applicable SIP, unless the resultant emissions 
are expected to be below the de minimis levels identified in the Clean 
Air Act (40 CFR 51.853(b)(1)). The de minimis level for the DFW one-
hour nonattainment area is 50 tons per year. The applicable SIP, in 
this case, is the 15% ROP SIP conditionally approved by EPA on November 
10, 1998 (63 FR 62943).
    Based on submitted estimates of direct and indirect NOX 
and VOC emissions resulting from these projects, emissions are expected 
to exceed the de minimis level of 50 tons per year during some of the 
project years. During the one-hour attainment year of 2007, only 
NOX estimates exceed this level (0.18 NOX tpd or 
65.7 NOX tpy), but in the peak operation year of 2015 both 
precursor pollutants are expected to exceed the de minimis level (1.16 
NOX tpd and 0.26 tpd VOC). As a result a general conformity 
determination by the FAA is required. The conformity regulations 
provide several options to meet this requirement. One option is to 
establish enforceable measures which offset the expected emissions from 
the project.
    The DFWIA worked with the Regional Transportation Council in 2002 
to identify emission reduction measures to be used to offset the 
emissions associated with these airport expansion projects. On December 
12, 2002, the RTC resolved to implement emission reduction measures to 
provide offsets for use by the DFWIA to meet general conformity 
requirements for the year 2007. At a minimum, these measures will 
offset the 0.18 tpd of NOX and 0.04 tpd of VOCs that are 
expected to be generated in 2007 by the Terminal F projects. In 
addition, the RTC resolved to provide emission reductions in the amount 
of 1.17 tpd of NOX and 0.26 tpd of VOCs for the year 2015. 
This will be accomplished by incorporating these expected emissions 
into the Metropolitan Transportation Plan for the year 2015, for which 
the total estimated emissions cannot exceed the emissions cap set by 
the motor vehicle emissions budget for that year. These emission 
reduction commitments are intended to assist the FAA in making a 
general conformity determination for the planned airport expansion 
projects associated with construction of Terminal F. (Note that 
although the conformity analysis will be conducted for 2007, the 
reductions that are the source of the offsets will be continuing in 
nature over the relevant time period and will not be relied on for 
other purposes or for other years. Details on the emission reduction 
measures are available in the Technical Support Document associated 
with this action.)

III. What Is the Effect of This Action?

    EPA intends to take direct final action approving this SIP revision 
providing emission reduction offsets for 2007 and a commitment that the 
NCTCOG will account for expected project emissions in 2015 as part of 
its Metropolitan Transportation Plan. These emission reduction 
commitments will assist the FAA in making a conformity determination 
for certain projects included in the DFW Airport Master Plan.
    The general conformity rules require these measures to be 
enforceable under both state and Federal law (40 CFR 51.860(g)). Upon 
the effective date of our action, these measures will be federally 
enforceable. The MOA between TCEQ and the RTC was adopted by the state 
on January 14, 2004 and was incorporated in the State Implementation 
Plan for the DFW ozone nonattainment area on that same day. Thus, these 
measures are already enforceable by state law.

IV. Final Action

    EPA is approving the revision to the DFW ozone SIP providing 
emission reduction offsets to DFW International Airport for the year 
2007 and a commitment that the NCTCOG will account for expected 
emissions from certain improvement projects planned for DFWIA in 2015 
as part of its Metropolitan Transportation Plan.
    We have evaluated the State's submittal and have determined that it 
meets the applicable requirements of the Clean Air Act and EPA 
conformity regulations, and is consistent with EPA policy. Therefore, 
we are approving the request of TCEQ to revise the SIP for the DFW 
ozone nonattainment area to incorporate this MOA between TCEQ and the 
Regional Transportation

[[Page 63068]]

Council of the North Central Texas Council of Governments.
    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 December 28, 2004 without 
further notice unless we receive adverse comment by November 29, 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 
now. 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.

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 December 28, 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, Nitrogen oxides, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: October 19, 2004.
Richard E. Greene,
Regional Administrator, Region 6.

0
40 CFR part 52 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. 7401 et seq.

Subpart SS--Texas


0
2. In Sec.  52.2270, the table in paragraph (e) entitled ``EPA approved 
nonregulatory provisions and quasi-regulatory measures'' is amended by 
adding one new entry to the end of the table to read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *

[[Page 63069]]



              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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                                    Applicable geographic
       Name of SIP provision          or nonattaintment    State approval/  EPA approval          Comments
                                             area          submittal date       date
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                                                  * * * * * * *
-----------------------------------
Memorandum of Agreement between     Dallas-Fort Worth....        01/14/04        10/29/04  .....................
 Texas Council on Environmental
 Quality and the North Central
 Texas Council of Governments
 Providing Emissions Offsets to
 Dallas Forth Worth International
 Airport.
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[FR Doc. 04-24127 Filed 10-28-04; 8:45 am]
BILLING CODE 6560-50-P