[Federal Register Volume 70, Number 193 (Thursday, October 6, 2005)]
[Rules and Regulations]
[Pages 58325-58328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20108]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2005-TX-0020; FRL-7982-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Texas Low-Emission Diesel Fuel Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Texas making changes to the Texas Low-
Emission Diesel (TXLED) Fuel program. With one exception, the changes 
are either administrative in nature, clarify existing provisions, add 
more specific reporting and recordkeeping requirements, or update 
references. These changes meet section 110(l) of the Federal Clean Air 
Act (the Act) because they improve the quality of the SIP and make it 
more enforceable.
    The more substantive change is the repeal of the state sulfur 
standard. This repeal being approved does not change the ultimate 
requirements regarding the reductions to be achieved because Texas did 
not rely upon the sulfur standard when EPA originally approved the 
program as part of the Houston ozone attainment demonstration SIP. 
Also, there are no sulfur dioxide (SO2) or particulate 
matter (PM) nonattainment areas in the affected area and no monitored 
violations. As a result, in accordance with section 110(l) of the Act, 
this removal will not interfere with attainment of the National Ambient 
Air Quality Standards (NAAQS), Rate of Progress, reasonable further 
progress or any other applicable requirement of the Act. Under section 
553(d)(1) of the Administrative Procedure Act, EPA is making this 
action effective upon publication because it relieves a restriction.

DATES: This rule is effective on October 6, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) Docket ID No. R06-OAR-2005-TX-0020. All 
documents in the docket are listed in the Regional Material in EDocket 
(RME) index at http://docket.epa.gov/rmepub/, once in the system, 
select ``quick search,'' then key in the appropriate RME Docket 
identification number. 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 docket 
materials are available either electronically in RME or in hard copy 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 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: Sandra Rennie, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7367; fax 
number 214-665-7263; e-mail address [email protected].

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

Outline

I. What Action Is EPA Taking?
II. What Is the Background for This Action?
III. What Comments Were Received During the Public Comment Period, 
August 10, 2005, to September 9, 2005?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    Today we are approving revisions to the TXLED rule submitted to EPA 
for approval as a SIP revision on March 23, 2005, except two portions 
on which we are taking no action and one portion for which we already 
took action on April 6, 2005. The Executive Director of the TCEQ 
submitted a letter to EPA on July 5, 2005, requesting that we not act 
on certain portions of the rule revision as it was submitted on March 
23, 2005. We are approving revisions of those aspects of the rule on 
which the TCEQ has not requested that EPA postpone action.

II. What Is the Background for This Action?

    We approved the original TXLED rule on November 14, 2001, (66 FR 
57196) as part of the Houston-Galveston Attainment Demonstration SIP. 
On December 15, 2004, the Texas Commission on Environmental Quality 
(TCEQ) Commissioners proposed to revise the TXLED rule and adopted the 
rule changes on March 9, 2005. The TCEQ submitted the TXLED rule 
changes on March 23, 2005 to EPA for approval into the SIP. We approved 
the compliance date rule changes, 30 TAC 114. 319, of the March 23, 
2005 SIP revision for TXLED on April 6, 2005 (70 FR 17321). This was 
done under parallel processing at the request of the State. The 
compliance date was changed from April 1, 2005, to a phased schedule of 
implementation starting October 1, 2005, until January 1, 2006. On 
August 10, 2005 (70 FR 46448), we proposed approval of the remaining 
portions of the March 23, 2005, SIP revision submittal--30 TAC 114.6 
and 114.312, 114.314-114.316, 114.318, and 114.319--except Approved 
Test Methods in section 114.315(b) and Alternative V in section 
114.315(c)(4)(C)(ii)(V). The State requested that we take no action on 
these two portions of the SIP revision submittal. Please see the 
proposal notice and its associated Technical Support Document for more 
information.
    Changes to the rule are to definitions, low emission diesel 
standards, registration of producers and importers, approved test 
methods, monitoring, reporting and recordkeeping requirements, testing 
and approval requirements for alternative fuel formulation, and 
alternative emission reduction plans. Except the removal of the sulfur 
standard, the rule changes either are administrative in nature, clarify 
existing provisions, update existing references, add more stringent 
reporting and recordkeeping requirements, or improve the new diesel 
formulation testing requirements. These types of changes improve the 
existing SIP and make it more enforceable.
    The sulfur standard was removed because the federal ultra-low 
sulfur diesel standards are now promulgated and will reduce sulfur in 
on-highway diesel in 2006 and in non-road equipment starting in 2007. 
Reducing

[[Page 58326]]

sulfur emissions does not directly reduce NOX and VOC 
emissions that are precursors to ozone formation. Consequently, there 
will be no increase in ozone concentration levels in the eastern and 
central parts of Texas from the period of the previous state sulfur 
standard to the federal sulfur standard. Moreover, none of the ozone 
attainment demonstration SIPs relied upon the sulfur emission 
reductions from the TXLED program.
    Reducing sulfur emissions does reduce sulfur dioxides and 
particulate matter emissions but there are no SO2 and PM 
nonattainment areas in the eastern and central parts of Texas. There 
also are no monitored violations of these three standards in the 
affected areas and no upward trends. Moreover, there is only a three-
month difference for implementation of the on-road sulfur standard. The 
attainment areas are in attainment of these standards before the new 
Federal sulfur standard dates.

III. What Comments Were Received During the Public Comment Period, 
August 10, 2005, to September 9, 2005?

    Comments were received from Exxon-Mobil Refining and Supply Company 
and from Oryxe Energy International, Inc.
    Exxon-Mobil commented in support of the approval of the rule. We 
appreciate the support.
    Oryxe Energy had the following comments:

1. Testing of Alternative Diesel Fuel Formulations

    1.1 Comment: Oryxe believes that the use of the most up-to-date 
ASTM or EPA methods is not itself sufficient to ensure the integrity of 
the program for the protection of the consumer and assurance of 
achieving clean air goals. Test protocols and laboratories used to run 
the tests on alternative diesel fuel formulations must be assured of 
the highest order in order [for the test results] to qualify for SIP 
credit. Alternately, the same assurance could be accomplished by EPA 
recognition of laboratory capabilities, or oversight by another 
appropriate governmental entity.
    1.1 Response: We agree in principle that the use of ASTM or EPA 
methods does not in itself provide all assurances with regard to data 
produced using them. We also agree that how a laboratory operates with 
regard to quality assurance and quality control procedures is of 
critical importance in generating data that can be viewed with 
confidence. In the context of this rule, as part of a replicable 
procedure, we believe that ASTM or EPA methods are trusted methods that 
will, with the proper application, produce data of high quality.
    1.2 Comment: The commenter recommends that testing be done in a 
process open to public review and comment, and includes a list of 
testing elements they believe are most critical to effective review and 
comment. These elements include engine selection, fuel selection, 
additive information, emission testing laboratory selection, and 
emission testing protocol.
    1.2 Response: See our response to 4.2 that addresses public review 
and comment.
    Regarding the list, many of the specific points listed under the 
general categories are already covered in 30 TAC 114.315. The only 
general category not included in the TXLED rule is emissions testing 
laboratory selection. Using guidance provided by the State, a company 
should use good judgement in selecting a laboratory for testing. EPA 
does not formally recognize, certify, or qualify laboratories. 
Currently EPA may recognize data produced by some laboratories with 
more confidence than data from others because of our past experience 
with those laboratories. EPA, along with Texas, is asking for quality 
assurance/quality control (QA/QC) plans from laboratories with which we 
have little experience that are planning to test under 30 TAC 114.315. 
Good QA/QC plans will help ensure the validity of the data and preserve 
the integrity of the program.
    1.3 Comment: Oryxe recommended language changes to the Texas 
Administrative Code at 30 TAC Sec.  114.315 in five places.
    1.3 Response: We did not propose changes to the Texas rule, 
therefore new language changes are not the subject of this rulemaking. 
Oryxe should contact Texas during rule development to voice its 
concerns regarding regulatory language. We cannot change the content of 
State regulations in our approval actions.

2. Monitoring Requirements

    2.1 Comment: Oryxe suggests adding language at the end of 30 TAC 
Sec.  114.316(e) to ensure that the benefits from Nox reductions are 
verified.
    2.1 Response: We cannot change the content of State regulations in 
our approval actions. A process for verification of fuel additive 
technologies exists in EPA's Environmental Technology Verification 
(ETV) program in cooperation with the Voluntary Diesel Retrofit 
Program. With these programs in place, protocols and processes already 
exist for verifying a product's emission reduction capabilities, and 
there is no need for Texas to duplicate such a program at the expense 
of the State and Federal government. The ETV/VDRP process is more 
thorough than the comparative testing proposed by the commenter. The 
ETV/VDRP processes provide an even greater degree of assurance to the 
consumer and the general public.

3. Proposed Revisions to Alternate Emission Reduction Plans

    3.1 Comment: The commenter supports the revision to the Alternate 
Emission Reduction Plans language at 30 TAC Sec.  114.318.
    3.1 Response: We appreciate the support.

4. EPA Approval of Alternative Diesel Fuel Formulations

    4.1 Comment: Oryxe raises concerns about the removal of EPA from 30 
TAC Sec.  114.312(f). They assert that this removal would have no 
effect on EPA's continuing oversight of the TXLED program. The 
commenter acknowledges that this is not an approvable provision.
    4.1 Response: EPA continues to have oversight of the TXLED 
alternative fuel formulation testing by the addition of EPA 
consultation in Sec.  114.315(c)(6). This consultation can include the 
review of test protocols, quality assurance/quality control plans, as 
well as test data. EPA has been consulting with the State, test 
laboratories, and vendors regarding test protocols, QA/AC plans, and 
test data. As the commenter notes, Texas has agreed to remove this 
Executive Director discretion in a future rulemaking.
    4.2 Comment: Oryxe suggests that removal of EPA approval makes it 
absolutely essential that testing under the alternative formulations 
process be open and subject to public notice and comment.
    4.2 Response: EPA disagrees with this comment. The approved test 
method laid out in 30 TAC Sec.  114.315 is a replicable procedure that 
was originally approved by EPA in November 2001 and now is revised 
after being subject to public notice and comment by the State. We 
believe that a replicable procedure can be subject to public notice and 
comment when it is being adopted and approved. The concept is to avoid 
treating each alternative fuel formulation and its testing process as a 
separate SIP revision by establishing a generic testing protocol that 
is subject to notice and comment, and approving that generic protocol. 
The State has the regulatory process establishing the test procedure. 
In advance of setting a test protocol for a new product, the State will 
consult

[[Page 58327]]

with EPA in case it is evident that slight deviations from the 
established test methods may be warranted due to the nature of the 
product being tested.

IV. Final Action

    EPA is granting approval of the revisions to the TXLED rule as 
submitted March 23, 2005, with the following exceptions: (1) The 
compliance date changes that were already approved on April 6, 2005; 
(2) revisions to Approved Test Methods in Sec. Sec.  114.315(b) and 
114.315(c)(4)(C)(ii)(V) that the State specifically requested we not 
process at this time as specified above. None of the revisions being 
proposed for approval change the ultimate requirements regarding the 
reductions to be achieved. There will be no increase in ozone 
concentration levels because of approving the revisions. The affected 
110 counties are in attainment of the SO2 and PM standards, are not 
monitoring exceedances, are not experiencing any upward trends, and are 
in attainment before the date for the federal sulfur standard. As a 
result and in accordance with section 110(l) of the Act, 42 U.S.C. 
section 7410(l), these revisions will not interfere with attainment of 
the National Ambient Air Quality Standards (NAAQS), Rate of Progress, 
reasonable further progress, or any other applicable requirement of the 
Clean Air Act.
    Section 553(d) of the Administrative Procedure Act generally 
provides that rules may not take effect earlier than 30 days after they 
are published in the Federal Register. However, section 553(d)(1) 
allows a rule to take effect earlier if it relieves a restriction. We 
are making this action effective upon publication because it relieves a 
restriction.

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 (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 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. 
section 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 5, 2005. 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, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen oxides, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 28, 2005.
Lawrence E. Starfield,
Acting 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. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended by revising the entries for Sections 114.6 
under Chapter 114, Subchapter A, and 114.312, 114.314, 114.315, 
114.316, and 114.318 under Chapter 114, Subchapter H, Division 2, to 
read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

[[Page 58328]]



                                    EPA Approved Regulations in the Texas SIP
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                                                        State approval/
          State citation              Title/subject     submittal date   EPA approval date       Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------
                        Chapter 114 (Reg 4)--Control of Air Pollution from Motor Vehicles
                                            Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 114.6....................  Low Emission Fuel          03/09/05  10/6/05. [Insert FR
                                    Definitions.                         page number where
                                                                         document begins].
 
                                                  * * * * * * *
----------------------------------
                                        Subchapter H--Low Emission Fuels
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------
                                         Division 2--Low Emission Diesel
----------------------------------------------------------------------------------------------------------------
Section 114.312..................  Low Emission Diesel        03/09/05  10/6/05. [Insert FR
                                    Standards.                           page number where
                                                                         document begins].
 
                                                  * * * * * * *
Section 114.314..................  Registration of            03/09/05  10/6/05. [Insert FR
                                    Diesel Producers                     page number where
                                    and Importers.                       document begins].
Section 114.315..................  Approved Test              03/09/05  10/6/05. [Insert FR  EPA took no action
                                    Methods.                             page number where    on Section
                                                                         document begins].    114.315(b) and
                                                                                              section
                                                                                              114.315(c)(4)
                                                                                              (C)(ii)(V).
Section 114.316..................  Monitoring,                03/09/05  10/6/05. [Insert FR
                                    Recordkeeping, and                   page number where
                                    Reporting                            document begins].
                                    Requirements.
 
                                                  * * * * * * *
Section 114.318..................  Alternative                03/09/05  10/6/05. [Insert FR
                                    Emission Reduction                   page number where
                                    Plan.                                document begins].
 
                                                  * * * * * * *
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[FR Doc. 05-20108 Filed 10-5-05; 8:45 am]
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