[Federal Register Volume 70, Number 237 (Monday, December 12, 2005)]
[Rules and Regulations]
[Pages 73380-73383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23915]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2004-TX-0001; FRL-8007-5]


Approval and Promulgation of Implementation Plans; Texas; 
Memoranda of Understanding Between Texas Department of Transportation 
and the Texas Commission on Environmental Quality

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a State 
Implementation Plan (SIP) revision submitted by the Texas Commission on 
Environmental Quality (TCEQ) on August 15, 2002. This SIP revision 
approves the adoption by reference of a Memorandum of Understanding 
(MOU) between the TCEQ and the Texas Department of Transportation 
(TxDOT). The MOU is adopted into the Texas rule at 30 TAC, Chapter 7, 
Section 119 (Section 7.119). This MOU concerns the coordination of 
environmental reviews associated with transportation projects. The 
adoption by reference of this MOU will streamline coordination between 
the TCEQ and TxDOT by consolidating separate MOUs currently in the air 
and water regulations. This action is important to satisfy the need of 
the Commission and TxDOT to coordinate regulatory programs and to 
ensure that overlapping areas of responsibility are clarified. This 
approval will make the MOU revised regulations Federally enforceable.

DATES: This rule is effective on February 10, 2006 without further 
notice, unless EPA receives adverse comment by January 11, 2006. 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 Docket No. EPA-R06-OAR-
2004-TX-0001, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     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 send a copy by e-mail 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

[[Page 73381]]

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 Docket ID No. EPA-R06-OAR-
2004-TX-0001. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, 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 
www.regulations.gov or e-mail. The www.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 www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket 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.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov 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 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 Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Alima Patterson, State/Oversight 
Section (6PD-O), 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?

    We are granting direct final approval to a SIP revision submitted 
by the State of Texas which adopts by reference a MOU between the TCEQ 
\1\ and the TxDOT. The MOU was adopted into the Texas Rule at 30 TAC, 
Chapter 7, Section 119 (Section 7.119) on April 10, 2002. The 
provisions of the new Section 7.119 of the MOU as adopted became 
effective on May 2, 2002, (See 27 Texas Register 3560). The approval of 
this new Section 7.119 of the State regulation streamlines coordination 
between the Commission and TxDOT by consolidating separate MOUs 
currently in the State air regulations (30 TAC Section 114.250).
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    \1\ At the time of the adoption of the MOU, the TCEQ name was 
the Texas Natural Resource Conservation Commission (TNRCC), however, 
on September 1, 2002, the TNRCC agency name was changed to the TCEQ. 
For further legislative history on the name-change, please refer to 
the Act of June 15, 2001, 77th Leg. R.S. Chapter 965, Section 18.01, 
2001 Tex. Gen. Laws 1985. The TCEQ may perform any act for which it 
was authorized as either the TNRCC or the Texas Water Commission 
(TWC). Therefore, reference to TCEQ are references to TNRCC and to 
its successor, TECQ.
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    EPA is taking direct final action to approve the incorporation of 
this MOU into the Texas SIP.

II. Why Was This SIP Revision Submitted?

    The State of Texas adopted the MOU and a new Section 7.119 and 
submitted the revision to EPA for approval into the SIP on August 22, 
2002. The rule and MOU streamlines coordination between the TCEQ and 
TxDOT by consolidating separate MOUs currently in the air regulations 
(30 TAC Section 114.250) and in water regulations (30 TAC Section 
305.521). The rule adopts by reference a TxDOT MOU by consolidating 
these separate MOUs. The TCEQ repealed 30 TAC Section 114.250 which 
previously contained the MOU in the air regulations. Section 114.250 is 
not part of the SIP so no action on its repeal is necessary by EPA.
    The EPA was given the opportunity during the State's public 
participation process to comment on the proposed rule and supported the 
repeal of Section 114.250 and Section 305.521 in favor of the new 
Section 7.119.
    The provisions of the MOU regarding the processing of documents are 
in compliance with the requirements of the National Environmental 
Policy Act. The MOU establishes periods for review of documents and 
ensured coordination between the agencies on road projects that could 
have environmental impacts. The proposed rule does not represent a 
change from current practices, but is intended to streamline 
coordination between the two agencies by consolidating separate MOU 
provisions currently in the air regulations and the water regulations. 
There are no fiscal implications anticipated to State or Local units of 
government. Section 7.119 will be re-evaluated each year of the first 
five years of the agreement between TCEQ and TxDOT. The proposed rule 
and the MOU satisfies the need of the commission and TxDOT to 
coordinate regulatory programs and to ensure that overlapping areas of 
responsibility are clarified. The rule/MOU places no requirements on 
the regulated community.
    Under 40 CFR Part 51.102, the State is required to provide public 
notification and conduct a public hearing prior to adoption and 
submission to EPA any revision under 40 CFR Part 51.104(a). The State 
provided for public participation in accordance with 40 CFR 51.102 and 
held a public hearing on November 27, 2001. The State provided in its 
SIP submittal a transcript of its public hearing, notification for the 
public hearing, copies of comment received and their evaluation of 
comments. The MOU between TECQ and TxDOT was

[[Page 73382]]

adopted on April 10, 2002 and became effective on May 2, 2002.
    This rule incorporates an MOU into the SIP. The MOU provides for a 
streamlined coordination of environmental reviews associated with 
transportation projects between TxDOT and TCEQ. As such, this rule is 
procedural in nature and meets and complies with the requirements of 
section 110(l) of the Clean Air Act.

III. What Is the Effect of This Action?

    EPA intends to take direct final action approving this SIP revision 
to incorporate by reference the MOU between TCEQ and TxDOT. The MOU 
will address transportation planning issues required by TxDOT and the 
TCEQ, specifically including processing of documents required by the 
National Environmental Policy Act. The MOU establishes periods for 
review of documents and ensures coordination between the agencies on 
road projects that could have environmental impacts.

IV. Final Action

    EPA is approving by the direct final rulemaking the revision to the 
Texas SIP adopting by reference an MOU between the TCEQ and the TxDOT. 
The MOU is adopted into the Texas rule at 30 TAC Section 7.119 and this 
rule is being approved into the SIP. The approval of this new section 
of the State regulation streamlines coordination between the TCEQ and 
TxDOT. We have evaluated the State's submittal and have determined that 
it meets the applicable requirements of the Clean Air Act. Therefore, 
we are approving the request of TCEQ to revise the SIP and incorporate 
by reference the MOU between the Commission and TxDOT.
    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 February 10, 2006 without 
further notice unless we receive adverse comment by January 11, 2006. 
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 February 10, 2006. 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.


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    Dated: November 18, 2005.
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) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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                                        Applicable
      Name of SIP provision           geographic or     State approval/  EPA approval date         Comments
                                    nonattainment area  submittal date
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                                                  * * * * * * *
Memorandum of Understanding        Statewide..........      08/15/2002  12/12/2005 [Insert   ...................
 Between the Texas Department of                                         FR page number
 Transportation and the Texas                                            where document
 Natural Resource Conservation                                           begins].
 Commission.
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[FR Doc. 05-23915 Filed 12-9-05; 8:45 am]
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