[Federal Register Volume 73, Number 207 (Friday, October 24, 2008)]
[Rules and Regulations]
[Pages 63378-63382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25335]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0665; FRL-8733-8]


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 three revisions to the State Implementation 
Plan (SIP) for the state of Texas. These revisions make changes to the 
Texas Low-Emission Diesel (TXLED) Fuel program. The revisions establish 
a replicable procedure for the State to approve Alternative Emission 
Reduction Plans (AERPs), extend the date of state approvals, and bring 
marine diesel fuels under the TXLED program. The revisions also refine 
and clarify testing requirements. The changes being approved will 
contribute to the reduction of oxides of nitrogen (NOX ) in 
the covered area. EPA is approving the revisions pursuant to Clean Air 
Act (CAA) section 211 and the Energy Policy Act (EPAct).

DATES: This final rule is effective on November 24, 2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R06-OAR-2006-0665. All documents in the docket 
are listed on the www.regulations.gov, web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information 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 through www.regulations.gov or in hard 
copy at the Air Planning Section (6PD-L), U.S. Environmental Protection 
Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. The file 
will be made available by appointment for public inspection 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 to make an appointment. If possible, please make the 
appointment at least two working days in advance of your visit.
    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: 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.

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

[[Page 63379]]

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, 
February 12, 2008, to March 13, 2008?
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 May 
15, 2006, June 11, 2007, and June 13, 2007. The revisions establish a 
replicable procedure for the State to evaluate Alternative Emission 
Reduction Plans (AERPs) so that changes to those plans do not have to 
be submitted to EPA as a SIP revision. The revisions also extend the 
expiration date for state-approved AERPs and require two forms of 
marine diesel fuel to be subject to TXLED requirements along with other 
less substantive revisions to the text of the rule.

II. What Is the Background for This Action?

    In a Federal Register notice published on June 6, 2006 (71 FR 
32532), we discussed an interpretation of the Energy Policy Act (EPAct) 
provisions, which was based on a fuel type interpretation. We published 
a draft list identifying the total number of fuels approved into all 
SIPs as of September 1, 2004, pursuant to section 211(c)(4)(C)(i). On 
February 12, 2008, we proposed approval of Texas's SIP revision as 
consistent with our June 6, 2006, interpretation of the EPAct 
provisions. On December 21, 2006, EPA Administrator Stephen L. Johnson 
signed a Federal Register notice containing EPA's final interpretation 
of the EPAct provisions. The final notice was published in the Federal 
Register on December 28, 2006. (See 71 FR 78192.) Our approval of 
Texas's revision to the TXLED program is consistent with EPA's final 
promulgated interpretation of the EPAct.
    Under the Clean Air Act, state fuel programs respecting a fuel 
characteristic or component that we regulate under section 211(c)(1) 
are preempted. Section 211(c)(4)(A) of the Clean Air Act (CAA); See 
also 40 CFR 80.1(b). EPA may waive preemption through approval of the 
fuel program into a SIP. Approval into a SIP requires a demonstration 
that the state fuel program is ``necessary'' to achieve a NAAQS that is 
implemented by the SIP. CAA section 211(c)(4)(C)(i). The Energy Policy 
Act of 2005 (EPAct), amended CAA section 211(c)(4)(C) by requiring EPA, 
in consultation with the Department of Energy, to determine the total 
number of fuels approved into all SIPs as of September 1, 2004, and 
publish a list of such fuels, including the state and Petroleum 
Administration for Defense District (PADD) in which they are used, in 
the Federal Register for review and comment. CAA section 
211(c)(4)(C)(v)(II). We have since published a final list of the total 
number of state fuels approved into SIPs as of September 1, 2004. 71 FR 
78192, 78199 (December 28, 2006). Texas Low Emission Diesel fuel 
(TXLED) is on this final list of the total number of state fuels 
approved under CAA section 211(c)(4)(C) as of September 1, 2004. (71 FR 
78199.) In general, our listing of fuel types was based on the 
``required specific fuel components, specifications or limits of each 
fuel type.'' 71 FR 78194.
    Congress also placed the following three additional restrictions on 
our authority to waive preemption by approving a state fuel as 
necessary for attainment of a NAAQS. First, our approval of a state 
fuel program must not cause an increase to the total number of fuels 
approved into all SIPs as of September 1, 2004. Second, if our approval 
will not increase the total number of fuels on the list, because the 
total number of fuels in SIPs is below the number of fuels we approved 
as of the September 1, 2004, we must make a finding, after consultation 
with DOE, that the state fuel program will not cause supply or 
distribution problems or have significant adverse impacts on fuel 
producibility in the affected or contiguous areas. Third, with the 
exception of 7.0 psi RVP, we may not approve a state fuel unless that 
fuel is already approved in at least one SIP in the applicable PADD. 
CAA Section 211(c)(4)(C)(v)(I), (IV) and (V). Our approval of a 7.0 psi 
RVP fuel would, however, be subject to the other EPAct restrictions.
    We approved the TXLED fuel program requirements on November 14, 
2001 based on our finding that the requirements were necessary for the 
achievement of the ozone standards by 110 counties in eastern and 
central Texas. 66 FR 57196 (November 14, 2001). Compliance with TXLED 
is achieved through any one of the following three options:
    (i) Producing diesel fuel that meets parameter specifications for 
sulfur,\1\ aromatics and cetane number, specifications for California 
Air Resources Board (CARB) certified diesel fuel; (ii) producing 
alternative diesel fuel formulations that achieve comparable 
NOX and PM emissions reductions; or (iii) using approved 
alternative emissions reduction plans that achieve comparable emissions 
reductions.
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    \1\ In 2005 Texas requested and we approved the removal of the 
sulfur content requirement from the TXLED program. 70 FR 58325 
(October 6, 2005).
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    Today's action approves the revisions to TXLED that were submitted 
by the State on May 15, 2006, June 11, 2007, and June 13, 2007. The 
revisions are to TXLED rules found in 30 TAC 114.6, 114.312, 114.313, 
114.315, 114.316, 114.317, 114.318, and 114.319. These revisions 
include the clarification of definitions of additive, final blend, 
gasoline and LED; the expansion of the definition of diesel fuel to 
include diesel marine fuel and marine gas oil; removal of the 
requirement to compare VOCs emissions from the alternative fuel 
formulation testing requirements; amendments of references to certain 
State law provisions; specification of the correlation equation for 
ASTM Test Method D5186, which is the test method for CARB diesel; 
addition of fuel properties to the engine testing requirements for 
alternative fuel formulations; addition of the requirement for 
consultation and prior EPA approval for alternative test methods; 
clarification of specific criteria for satisfactory demonstration of 
alternative formulations; changing the record keeping and monitoring 
requirements to require a demonstration of the achieved emissions 
reductions; specifying replicable procedures for alternative emissions 
reduction plans in order to eliminate the requirement for EPA approval 
of alternative emissions reductions plans; and specifying the 
methodology and equations for the use of the alternative emission 
reduction plan, such as early gasoline sulfur credits, as a compliance 
option.
    As a general matter, revisions to an approved state fuel program 
that are within the scope of the previous necessity finding do not 
require another ``necessity'' demonstration under CAA section 
211(c)(4)(C)(i). In addition, revisions that do not result in a ``new 
fuel type'' within the meaning of CAA section 211(c)(4)(C) would not 
implicate the restrictions discussed earlier. These revisions to the 
TXLED rule are either not preempted or are within the scope of the 
``necessity'' demonstration at the time of our approval. These rule 
changes do not result in a ``new fuel type'' within the meaning of CAA 
section 211(c)(4)(C)(v)(II), and therefore, do not implicate other 
EPAct restrictions as discussed earlier.
    These revisions either do not raise preemption issues under CAA 
211(c)(4)(C), or are administrative in nature because they improve and 
strengthen an existing SIP-approved

[[Page 63380]]

program by clarifying provisions, and updating references. We also 
believe that these revisions do not result in changes to ``required 
specific fuel components, specifications or limits,'' or in other words 
either the nature or character of the TXLED program, and thus does not 
result in a ``new fuel type.'' For example, the elimination of the VOC 
emissions testing comparison requirement does not raise preemption 
issues because EPA has not prescribed controls for VOCs \2\ content in 
diesel fuel, under CAA section 211(c)(1). Also, Texas sought and EPA 
granted a waiver of preemption for cetane number, hydrocarbons and 
sulfur in on-road diesel fuel only. Similarly, the expansion of the 
definition of TXLED to include marine diesel and marine gas oil does 
not raise preemption concerns because CAA section 211(c)(4)(A) is 
applicable only to state controls respecting motor vehicle fuel 
characteristic or components. Other definitions and citations to State 
law provide further clarification on the existing TXLED requirements. 
The correlation equation is the same equation specified in CARB rules 
for the certification of CARB diesel fuel and as such provides for 
consistency with regard to those manufacturers that choose to use CARB 
diesel as a compliance option. The engine test revisions enhance 
existing engine tests requirements for alternative diesel formulations, 
now require prior EPA approval for alternative test methods, and 
provide for additional fuel properties that must be accounted for in 
characterizing the candidate fuel used in alternative fuel formulation 
testing. Similarly, the monitoring and recordkeeping requirements now 
require a demonstration of how emissions reductions are achieved in an 
alternative emissions reduction plan as compared to the superseded 
requirement, which only called for documentation of the quantity of 
additive used in alternative fuel formulations.
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    \2\ EPA currently has nationwide regulations prescribing limits 
on various characteristics and components of motor vehicle diesel 
fuel (e.g., sulfur content limits, minimum cetane index and limits 
on aromatic content) (55 FR 34120, August 21, 1990).
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    We approved the original TXLED rule on 11/14/01 (66 FR 57196) in 
conjunction with the Houston-Galveston One-Hour Attainment 
Demonstration SIP. We also approved revisions to this rule on April 6, 
2005 (70 FR 17321), and on October 6, 2005 (70 FR 58325). This document 
concerns control of air pollution of NOX and VOCs from 
mobile sources in 110 counties of East Texas where the rule applies. 
This low-emission diesel fuel program applies to both on-road and non-
road vehicles in the affected area.

III. What Comments Were Received During the Public Comment Period, 
February 12, 2008, to March 13, 2008?

    We received one comment from the Early Action Compact Task Force. 
The commenter stated that the Austin area may stand to lose significant 
NOX reductions during the critical monitoring period used to 
determine ozone attainment classification status because Alternative 
Emission Reduction Plans (AERPs) extend to 2010.
    Response: The State Legislature mandated that the TXLED program 
allow fuel producers to implement alternative emission reduction plans 
that demonstrate that the emission reductions associated with 
compliance of this rule can be achieved through an equivalent 
substitute fuel strategy. We approved this provision in our original 
approval of this rule (November 14, 2001 at 66 FR 57196). Reductions in 
the Austin area were a fortuitous effect of the TXLED program that was 
designed to primarily assist the DFW and HGB nonattainment areas. The 
AERP program has led to equivalent NOX reductions being 
achieved in several areas across the state.

IV. Final Action

    We are granting final approval to revisions to the TXLED rules 
submitted on May 15, 2006, June 11, 2007, and June 13, 2007.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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 action 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 23,

[[Page 63381]]

2008. Filing a petition for reconsideration by the Administrator of 
this final rule does not affect the finality of this action 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, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: October 9, 2008.
Richard E. Greene,
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 under Chapter 114, Subchapter A, by revising 
the entry for 114.6, and under Chapter 114, Subchapter H, Division 2, 
by revising the entries for 114.312, 114.313, 114.315, 114.316, 
114.317, 114.318, and 114.319 to read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA-Approved Regulations in the Texas SIP
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                                                    State approval/
     State citation           Title/subject         submittal date       EPA approval date        Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
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                        Chapter 114 (Reg 4)--Control of Air Pollution from Motor Vehicles
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                                            Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 114.6..........  Low Emission Fuel        06/13/07..........  10/24/08 [Insert FR      .................
                          Definitions.                                 page number where
                                                                       document begins].
 
                                                  * * * * * * *
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                                        Subchapter H--Low Emission Fuels
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                         Division 2--Low Emission Diesel
----------------------------------------------------------------------------------------------------------------
Section 114.312........  Low Emission Diesel      05/15/06..........  10/24/08 [Insert FR      .................
                          Standards.                                   page number where
                                                                       document begins].
Section 114.313........  Designated Alternate     05/15/06..........  10/24/08 [Insert FR      .................
                          Limits.                                      page number where
                                                                       document begins].
 
                                                  * * * * * * *
Section 114.315........  Approved Test Methods..  05/15/06..........  10/24/08 [Insert FR      .................
                                                                       page number where
                                                                       document begins].
Section 114.316........  Monitoring,              05/15/06..........  10/24/08 [Insert FR      .................
                          Recordkeeping, and                           page number where
                          Reporting Requirements.                      document begins].
Section 114.317........  Exemption to Low         05/15/06..........  10/24/08 [Insert FR      .................
                          Emission Diesel                              page number where
                          Requirements.                                document begins].
Section 114.318........  Alternative Emission     06/11/07..........  10/24/08 [Insert FR      .................
                          Reduction Plan.                              page number where
                                                                       document begins].
Section 114.319........  Affected Counties and    06/13/07..........  10/24/08 [Insert FR      .................
                          Compliance Dates.                            page number where
                                                                       document begins].
 
                                                  * * * * * * *
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 [FR Doc. E8-25335 Filed 10-23-08; 8:45 am]
BILLING CODE 6560-50-P