[Federal Register Volume 67, Number 220 (Thursday, November 14, 2002)]
[Rules and Regulations]
[Pages 68941-68944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28844]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-144-1-7581; FRL-7407-1]
Approval and Promulgation of Implementation Plans; Texas;
Environmental Speed Limit Revision; and Voluntary Mobile Emission
Reduction Program Commitment for the Houston/Galveston (HG) Ozone
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is approving, through parallel processing, revisions
to the Texas Ozone attainment demonstration State Implementation Plan.
This approval covers two separate actions. First, we are approving a
revision to the SIP that would suspend the 55 miles per hour (mph)
environmental speed limit for all vehicles until May 1, 2005. In the
interim, the speed limits would be increased from the current 55 mph
speed limit to a level 5 mph below the speed limit that was in place
prior to May 2002. The new speed limits would apply in Brazoria,
Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller
counties. Second, we are approving a clarification of the State
enforceable commitment to remedy any shortfalls in emission reductions
attributed to the Voluntary Emission Reduction Program (VMEP) in the
Houston/Galveston (HG) nonattainment area.
EFFECTIVE DATE: This rule is effective on December 16, 2002.
ADDRESSES: Copies of documents relevant to this action are available
for public inspection during normal business hours at the following
locations. Anyone wanting to examine these documents should make an
appointment with the appropriate office at least two working days in
advance.
Environmental Protection Agency, Region 6, Air Planning Section
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Peggy Wade of the EPA Region 6 Air
Planning Section at (214) 665-7247, e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
What Action Are We Taking Today?
We are approving two proposed changes to the Texas SIP. First, we
are approving a change to the Environmental Speed Limits in the
Houston/Galveston nonattainment area to suspend the 55 mph speed limit
until May 1, 2005. In the interim period prior to 2005, speed limits
would be increased from the current 55 mph speed limit to a level 5 mph
below the speed limit that was in place prior to May 2002. Second, we
are approving a clarification of the State's enforceable commitment to
remedy any shortfalls in the emissions reductions attributed to the
VMEP so as to achieve all necessary reductions by the 2007 attainment
date.
As is explained in the proposal (67 FR 60633, September 26, 2002)
and below in response to comments, we have concluded that these
revisions meet all
[[Page 68942]]
applicable requirements and will not interfere with attainment or rate
of progress.
What Is the Background of These Revisions to the SIP?
On July 16, 2002, the Chairman of the Texas Commission on
Environmental Quality (TCEQ) submitted to EPA for parallel processing,
described further below, two proposed rule revisions to the SIP. These
rule revisions concern the delayed implementation of the 55 mph speed
limit for vehicles weighing less than 10,000 pounds; and, clarification
of a rule to commit the state to remedy any shortfalls in the emission
reductions attributed to the VMEP so as to achieve all necessary
reductions by the attainment date.
On September 16, 2002, the Executive Director of the TCEQ submitted
to EPA a second option to the environmental speed limit which was under
consideration by the TCEQ, in response to comments received on the Dual
Speed Limit option. This proposed option would suspend the 55 mph speed
limit for all vehicles until May 1, 2005, and, in the interim, would
increase, for all vehicles, the current environmental speed limit of 55
mph to 5 mph below the original posted speed limit.
On September 25, 2002, the TCEQ adopted as a SIP revision the
second option so that the 55 mph speed limit would be suspended for all
vehicles. In the interim period before 2005, the current 55 mph limit
would be raised to 5 mph below the limit that was in place prior to May
1, 2002.
In accordance with the request for parallel processing, on
September 26, 2002, we proposed approval of the State's revisions to
the environmental speed limit and to the clarification of the
enforceable commitment pertaining to the VMEP program. We took comment
on our proposed approval of both speed limit options that were being
considered by the State. We also took comment on approval of the
proposed clarifications to the State's enforceable commitment regarding
the VMEP program.
What Changes Have Been Made in Response to Comment on the EPA and TNRCC
Parallel Proposals?
As explained above, Texas requested that we parallel process these
changes to the Texas SIP. Parallel processing means that EPA proposes
action on a state rule before it becomes final under state law based on
a State's proposed revision. Under parallel processing, EPA takes final
action on its proposal if the final, adopted state submission is
substantially unchanged from the submission on which the proposed
rulemaking was based, or if significant changes in the final submission
are anticipated and are adequately described in EPA's proposed
rulemaking or result from needed corrections determined by the State to
be necessary through review of issues described in EPA's proposed
rulemaking.
In this case, as described above, TCEQ changed their approach to
environmental speed limits that would be effective prior to May 1,
2005, from a dual speed limit approach to an approach of a single speed
limit for all vehicles set 5 mph lower than their original levels.
Because TCEQ provided notice in their September 16, 2002, letter that
this approach was being considered, EPA was able to propose and take
comment on approval of such an option.
With regard to the VMEP proposal, EPA provided minor language
clarifications to the State's proposed language during the State's
comment period. We proposed approval of the State's clarification of
the VMEP commitment provided that the State further incorporated our
comments. In their adopted revision, TCEQ agreed to the appropriate
language changes.
Who Provided Comments?
We received three comment letters.
(1) An October 28, 2002, letter from Michael W. Behrens, P.E.,
Executive Director of the Texas Department of Transportation (TxDOT).
(2) An October 24, 2002, letter from Aren Cambre, a private
citizen.
(3) An October 28, 2002, E-mail from Ramon Alvarez of Environmental
Defense.
How Did EPA Respond to the Comments It Received?
Comments on Speed Limits
Comment: TxDOT provided comments in support of the action delaying
implementation of the 55 mph speed limit until May 1, 2005, and
increasing the speed limit to a level 5 mph below previously posted
speed limits of 65 mph and above.
Response: EPA appreciates the comments and is approving the TCEQ's
change to the environmental speed limit strategy.
Comment: One comment urged rejection of the currently proposed rule
and future proposed rule that modifies the environmental speed limits
in any SIP unless the change is a full cessation of the ESL program.
This commenter raised three concerns about the effectiveness of speed
limits as a control measure. First, for a variety of reasons the
commenter did not believe that reduced speed limits would result in
lowering the actual speeds being driven based on experience with the
1974 speed limit. Second, he felt that the emission reductions from a 5
mph reduction in speed limits are not sufficient to be worthwhile.
Third, he felt that ESLs are not enforceable under State law.
Response: We do not believe that it is appropriate to disapprove
the revision to the State's speed limit strategy based on these
comments. Disapproval of the State's proposed revision would only leave
in place the previously approved SIP with its requirement for a 55 mph
speed limit starting in May 2002. This result would not address the
commenter's concerns. EPA's decision to approve the revision is based
on whether the proposed changes were consistent with the approved
attainment plan. As explained more fully in the proposal (67 FR 60633,
September 26, 2002), we were able to make this determination, because
the revision is only a delay in full implementation until 2005 and not
a relaxation of the measure. Therefore, the emission reductions by the
2007 attainment date are expected to be equivalent to those that would
have been achieved by the previous plan. Thus, the revision will not
interfere with timely attainment. Also, as noted below, no reductions
from this measure were relied on to meet interim rate of progress (ROP)
requirements.
EPA will consider the commenter's concerns about the measure's
effectiveness as we oversee the implementation of the State
Implementation Plan. If we determine that the measures in the plan are
not being effectively implemented as the commenter anticipates we will
consider making a finding of failure to implement. It the State fails
to correct the problem either through more effective implementation or
substitute measures, sanctions will have to implemented. We do not
anticipate a finding of nonimplementation will be necessary because
Texas will weigh the effectiveness of all of the measures in the plan
and correct any shortfalls at the mid-course review scheduled for May
2004. Finally, the fact that the reduction from a 5 mph decrease in
speeds may be small does not provide grounds for EPA to disapprove the
revision. So long as the revision provides any reductions contributing
to attainment of the National Ambient Air Quality Standard, EPA must
approve it if it meets all applicable requirements.
[[Page 68943]]
Comment: Environmental Defense commented that delay in
implementation will result in a 10 ton/day hole in the SIP.
Specifically, Environmental Defense contends the Clean Air Act requires
implementation of measures as expeditiously as practicable and the
achievement of minimum rate of progress requirements. They further
believe that under the logic of this proposal every control measure
could be delayed until 2005, rendering meaningless the ``expeditious as
practical'' language of the Act. According to Environmental Defense, if
EPA finalizes this proposal as proposed, it must do so in a way that
prevents Texas (or any other State) from pointing to this action in
support of delays in implementation.
Response: We do not agree that the proposed change will result in a
10 ton/day hole in the SIP. It is true the preliminary analysis using
EPA's new MOBILE6 mobile source emissions model, which has not been
finalized by the State, indicates that much less emission reduction may
be achieved by environmental speed limits than was estimated using
MOBILE5a in the approved SIP. The delay in implementation, however,
does not result in reduced emission reductions based on the MOBILE5a
model. The projected decrease in emission reductions results from
improved emission estimation techniques.
To the extent that the analysis using the new Mobile emissions
model, once finalized, indicates that this control measure will not
achieve as much emission reduction as calculated by the previous
version of the model, EPA agrees that Texas should address this
concern. Texas has, in fact, committed to a full review of all of the
inputs to the attainment plan at the mid-course review which TCEQ has
committed to perform by May 1, 2004. At that time, Texas will
reevaluate all of the mobile source control measures in the plan using
MOBILE6 and has committed to make up any short fall in needed emission
reductions. Until this full analysis with MOBILE6 can be completed, EPA
believes that it is appropriate to approve this revision to delay full
implementation of the measure. Based on the approved attainment
demonstration with MOBILE5 emissions modeling, this delay will not
interfere with timely attainment as full implementation will occur
prior to the attainment date. Furthermore, Texas' plan does not rely on
the speed limit controls to meet minimum rate of progress requirements
of section 182 of the Act. That is, Texas demonstrates all required
rate of progress without any reductions from environmental speed
limits.
We do not believe this logic could be interpreted to allow delay of
implementation of all control measures. Instead, on a case by case
basis, EPA believes it is acceptable for States to consider new
information about the effectiveness of control measures and adjust
implementation schedules, if warranted, to allow for additional
evaluation if significant uncertainty about the effectiveness of the
control measure exists, provided that reductions are fully implemented
on a schedule to meet all ROP and timely attainment requirements.
Finally, EPA notes that the Clean Air Act requires implementation of
all reasonably available control measures as expeditiously as
practicable. However, if implementation of a measure will not either
advance attainment or contribute to required ROP the Act does not
require implementation be as expeditious as practicable.
Comments on the Voluntary Measures Commitment
Comment: EPA only received one comment on the VMEP clarification.
The comment from Environmental Defense suggested that the State commit
to language no less explicit than the following:
Texas commits to achieve, by the attainment date of November 15,
2007, 23 tpd of NOX emission reductions through the
implementation of measures in appendix K.
Response: On September 26, 2002, the TCEQ adopted the following
language to clarify its commitment to remedy any shortfall in emissions
reductions from the VMEP program:
The State commits to monitor, assess, and remedy any shortfall
in emissions reductions attributed to the VMEP by adopting
additional control measures, equivalent to any shortfall, to provide
for attainment by 2007. The State retains discretion to determine
the specific control measures to remedy the shortfall.
EPA does not believe the language provided by the commenter is
necessary for EPA approval. In fact, we believe the State's language
referring to providing attainment by 2007 is more appropriate because
it necessarily means that the emission reductions must be in place in
time to prevent ozone exceedences during the 2007 ozone season and
therefore, cannot be delayed until November 15, 2007. In addition, the
point of the State's clarification to the VMEP commitment is to confirm
that if the VMEP measures in appendix K do not achieve the needed
reductions, the State will find new measures to insure the emission
reduction goal is met by the attainment date. It, therefore, is not
appropriate to restrict the State to the use of the measures in
appendix K to meet this commitment.
III. Administrative Requirements
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,
[[Page 68944]]
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 January 13, 2003. 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, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Volatile organic compounds.
Dated: November 4, 2002.
Gregg A. Cooke,
Regional Administrator, Region 6.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Texas
2. In the table in Sec. 52.2270(e) entitled ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas
SIP'' the entries for ``Speed Limit Reduction'' and ``voluntary mobile
emissions program'' in the Houston/Galveston area are revised to read
as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(e) EPA approved nonregulatory provisions and quasi-regulatory
measures.
* * * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
Applicable
geographic or State
Name of SIP provision nonattainment submittal/ EPA approval date Comments
area effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Speed Limit Reduction........ Houston/ 9/26/02 11/14/02 and FR cite. Section 6.3.12.
Galveston, TX.
Voluntary Mobile Emissions Houston/ 9/26/02 11/14/02 and FR cite. .......................
Program. Galveston, TX.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 02-28844 Filed 11-13-02; 8:45 am]
BILLING CODE 6560-50-P