# Approval and Promulgation of Air Quality Implementation Plans; Texas; Revision to the State Implementation Plan (SIP) Addressing Carbon Monoxide (CO) for El Paso > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-7980 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** April 4, 1994 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [TX-23-1-5739; FRL-4857-1] Approval and Promulgation of Air Quality Implementation Plans; Texas; Revision to the State Implementation Plan (SIP) Addressing Carbon Monoxide (CO) for El Paso AGENCY: U.S. Environmental Protection Agency (EPA). ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: This action proposes to approve a revision to the Texas SIP addressing CO for El Paso. Certain elements of the complete El Paso CO SIP were submitted by the Governor of Texas to the EPA in order to meet the November 15, 1992, deadline for the purpose of bringing about the attainment of the National Ambient Air Quality Standards (NAAQS) for CO. These elements satisfy certain Federal requirements for an approvable nonattainment area CO SIP for El Paso. Therefore, this Federal Register (FR) action only proposes approval of some of the elements of the complete El Paso CO SIP, specifically the 1990 base year CO emissions inventory and the oxygenated fuels program. The remaining elements of the complete El Paso CO SIP, to be submitted to the EPA by November 15, 1993, have been or will be acted upon in separate FR actions. dates: Comments on this proposed action must be received in writing by May 4, 1994. ADDRESSES: Written comments on this action should be addressed to Mr. Thomas H. Diggs, Chief, Planning Section, at the EPA Regional Office listed below. Copies of the documents relevant to this action are available for public inspection during normal business hours at the following locations. The interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day. U.S. Environmental Protection Agency, Region 6, Air Programs Branch (6T-A), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733. Texas Natural Resource Conservation Commission (TNRCC), Air Quality Planning Annex, 12118 North IH-35, Park 35 Technology Center, Building A, Austin, Texas 78753. FOR FURTHER INFORMATION CONTACT: Ms. Patricia Cupp, Planning Section (6T-AP), Air Programs Branch, U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 655-8015. SUPPLEMENTARY INFORMATION: A segment of El Paso, Texas, was designated nonattainment for CO and classified as moderate with a design value below 12.7 parts per million (ppm.) (specifically 12.6), under sections 107(d)(4)(A) and 186(a) of the Clean Air Act (CAA), upon enactment of the Clean Air Act Amendments (CAAA) of 1990.1 Please reference 56 FR 56694 (November 6, 1991) and 57 FR 13498 and 13529 (April 16, 1992). --------------------------------------------------------------------------- \1\The 1990 Amendments to the CAA made significant changes to the air quality planning requirements for areas that do not meet (or that significantly contribute to ambient air quality in a nearby area that does not meet) the CO NAAQS (see Pub. L. Number 101-549, 104 Stat. 2399). References herein are to the CAA, as amended, 42 U.S.C. sections 7401 et seq. --------------------------------------------------------------------------- The air quality planning requirements for moderate CO nonattainment areas with a design value less than or equal to 12.7 ppm. are set out in subparts one and three of part D, Title I of the CAA. Subpart one contains provisions generally applicable to CO nonattainment areas, and subpart three contains provisions specifically applicable to CO nonattainment areas. Section 104 of the CAAA of 1990 amended part D of Title I of the CAA by adding two additional sections to subpart three (sections 186 and 187), which pertain to the classification of CO nonattainment areas and to the submission requirements of the SIPs for these areas, respectively. At times, subparts one and three overlap or conflict. The EPA has attempted to clarify the relationship among these various provisions in the General Preamble and, as appropriate, in this FR action. The EPA has issued a ``General Preamble'' describing the EPA's preliminary views on how the EPA intends to review SIPs and SIP revisions submitted under Title I of the CAA, including those State submittals containing moderate CO nonattainment area SIP requirements. See generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992). Because the EPA is describing its interpretations here only in broad terms, the reader should refer to the General Preamble for a more detailed discussion of the interpretations of Title I advanced in this action and the supporting rationale. In this proposed rulemaking action on certain elements of the El Paso, Texas, complete moderate CO SIP, the EPA is applying its interpretations, taking into consideration the specific factual issues presented. On October 23, 1992, the Governor of Texas submitted to the EPA a SIP revision for CO concerning El Paso, which included the general SIP revision and the oxygenated fuels regulations. The State also submitted to the EPA a completed emissions inventory on November 17, 1992, and a commitment to upgrade the existing I/M Program on November 15, 1992. These elements were intended to satisfy the CAA CO SIP requirements due on November 15, 1992. The required items for the El Paso CO SIP, due November 15, 1992, unless otherwise noted, specifically include: (1) A comprehensive, accurate, and current inventory of actual emissions from all sources of CO in the nonattainment area (sections 172(c)(3) and 187(a)(1) of the CAA); (2) no later than September 30, 1995, and no later than the end of each three year period thereafter, until the area is redesignated to attainment, a revised inventory meeting the requirements of sections 187(a)(1) and 187(a)(5) of the CAA; (3) a permit program to be submitted by November 15, 1993, which meets the requirements of section 173 for the construction and operation of new and modified major stationary sources of CO (section 172(c)(5)); (4) contingency measures due November 15, 1993, that are to be implemented if the EPA determines that the area has failed to attain the primary standards by the applicable date (section 172(c)(9)); (5) a commitment to upgrade the current I/M program and submit a SIP revision for the I/ M program by November 15, 1993, (section 187(a)(4)); and (6) an oxygenated fuels program (section 211(m)). As outlined below, the State of Texas' CO SIP revision concerning El Paso, a moderate CO nonattainment area, was reviewed against the applicable requirements. The reader is referred to the El Paso CO SIP submittal and the EPA's supporting technical information, Technical Support Document (TSD), for pertinent details regarding each requirement. The TSD is available for public review at the addresses indicated above for the EPA Regional Office in Dallas, the EPA Washington, D.C. office, and the TNRCC Austin office. Section 110(k) of the CAA sets out provisions governing the EPA's review of SIP submittals (see 57 FR 13565-66). In this FR action, the EPA is approving only some of the elements of the complete El Paso CO SIP, specifically the 1990 base year CO emissions inventory, and the oxygenated fuels program. The inspection and maintenance (I/M) committal was addressed by the EPA in an FR notice published on September 27, 1993. The remaining elements of the complete El Paso CO SIP, to be submitted to the EPA by November 15, 1993, will be acted upon in separate FR actions. This proposed approval action does not include any approval for the El Paso Post-1982 SIP submittal. That SIP proposal was the result of a SIP call on February 24, 1984, and one to which the Texas Air Control Board (TACB) responded. However, the EPA did not take action regarding the SIP submittal, and the CAAA of 1990 have negated the need for the EPA to take further action on that SIP action revision submittal. Analysis of State Submission 1. Procedural Background The CAA requires States to observe certain procedural requirements in developing implementation plans and plan revisions for submission to the EPA. Section 110(a)(2) of the CAA provides that each implementation plan submitted by a State must be adopted after reasonable notice and public hearing.2 See also section 110(l) of the CAA. Also, the EPA must determine whether a submittal is complete and, therefore, warrants further EPA review and action. See section 110(k)(1) and 57 FR 13565. The EPA's completeness criteria for SIP submittals are set out at 40 Code of Federal Regulations part 51, appendix V (1993), as amended by 56 FR 42216 (August 26, 1991). The EPA attempts to make completeness determinations within 60 days of receiving a submission. However, a submittal is deemed complete by operation of law if a completeness determination is not made by the EPA six months after receipt of the submission. --------------------------------------------------------------------------- \2\Section 172(c)(7) of the Act requires that plan provisions for nonattainment areas meet the applicable provisions of section 110(a)(2). --------------------------------------------------------------------------- After providing adequate notice, the TACB public hearings were held on July 2, 1992, and September 9, 1992, to entertain public comment on certain elements of the complete CO implementation plan. Following the public hearing, these elements were adopted by the State on September 18, 1992, and submitted to the EPA as a proposed revision to the SIP. The SIP revision was reviewed by the EPA to determine completeness shortly after its submittal, in accordance with the completeness criteria referenced above. A letter dated January 15, 1993, was forwarded to the Governor indicating the completeness of the submittal and the next steps to be taken in the review process. 2. CO Emission Inventory Section 172(c)(3) of the CAA requires that nonattainment plan provisions include a comprehensive, accurate, and current inventory of actual emissions from all sources of relevant pollutants in the nonattainment area. The TACB, the TNRCC effective September 1, 1993, included the requisite El Paso inventory in the CO SIP. The base year for the inventory was 1990, using a three month CO season of November 1990 through January 1991. Stationary point sources, stationary area sources, on-road mobile sources, and nonroad mobile sources of CO were included in the inventory. Stationary sources with emissions greater than 100 tons per year within a 25-mile buffer of the nonattainment area were also included in the inventory. The following list presents a summary of the CO peak season daily emissions estimates in tons per day (t/d) by source category: Point Sources, nine t/d; Area Sources, three t/d; Mobile On-Road Sources, 291 t/d; Mobile Nonroad Sources, 67 t/d; Total Sources, 370 t/d. Available guidance for preparing emission inventories is provided in the General Preamble (57 FR 13498, April 16, 1992). Section 110(k) of the CAA sets out provisions governing the EPA's review of base year emission inventory submittals in order to determine approval or disapproval under section 182(a)(1). See 57 FR 13565-66, April 16, 1992. The EPA is proposing to grant approval of the El Paso CO base year emission inventory submitted to the EPA based on Level I, II, and III review findings. The following paragraphs outline the review procedures performed on the inventory. The Level I and II review process is used to determine that all components of the base year inventory are present. The review also evaluates the level of supporting documentation provided by the State, and assesses whether the emissions were developed according to current EPA guidance. The Level III review process is outlined here and consists of nine points that the inventory must include. For a base year emission inventory to be acceptable, it must pass all of the following criteria: (1) An approved Inventory Preparation Plan (IPP) must be provided and the Quality Assurance contained in the IPP must be performed and its implementation documented; (2) Adequate documentation must be provided that enables the reviewer to determine the emission estimation procedures and the data sources used to develop the inventory. Summary emissions by categories of source type must be provided; (3) The point source inventory must be complete; (4) Point source emissions must have been prepared or calculated according to the current EPA guidance; (5) The area source inventory must be complete; (6) The area source emissions must have been prepared or calculated according to the current EPA guidance; (7) The methods used to develop vehicle miles traveled (VMT) estimates (e.g., a network transportation planning model) must follow EPA guidance. The VMT methods must be adequately described and documented in the inventory report; (8) The MOBILE model must be correctly used to produce emission factors for each of the vehicle classes; and (9) Nonroad mobile emissions must be prepared according to current EPA guidance for all of the source categories. The base year emission inventory will be approved if it passes Levels I, II, and III of the review process. Detailed Level I and II review procedures can be found in the following document--``Quality Review Guidelines for 1990 Base Year Emission Inventories,'' U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards (OAQPS), Research Triangle Park, North Carolina, July 27, 1992. Level III review procedures are specified in a memorandum from John S. Seitz to the Regional Air Division Directors, entitled ``Emission Inventory Issues,'' June 24, 1993.3 --------------------------------------------------------------------------- \3\Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, to the Regional Air Division Directors, entitled ``Emission Inventory Issues,'' U.S. EPA, Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina, June 24, 1993. --------------------------------------------------------------------------- The TACB submitted the El Paso CO inventory on November 17, 1992. EPA Region 6, EPA's OAQPS Emissions Inventory Branch, and contractor's reviewed the inventory. Comments were sent to the TACB, and the TACB responded with a resubmittal. The resubmittal underwent a second review. The review directive comments were given to Texas and discussed during an on-site visit to Austin, Texas, on September 2, 1993. The EPA Office of Mobile Sources (OMS) comments on El Paso ozone were also considered, where applicable. Texas addressed the final directive comments and the OMS comments and submitted revised submittal documentation to Region 6 on October 4, 1993, along with documents responding to the directive comments and the OMS comments. Region 6 compared the Texas responses with the deficiencies noted in the final directive review and OMS comments and concluded that Texas had adequately addressed the remaining deficiencies so that Region 6 could verify that Texas had satisfied the Level III criteria for El Paso CO. Documentation of the Region 6 evaluation, including details of the review procedure, is contained in a memorandum (Attachment A) in the TSD. Also, please reference Appendix AK of the El Paso CO SIP for specific details on the State inventory. Finally, it should be noted that no later than September 30, 1995, and no later than the end of each three year period thereafter (until the area is redesignated to attainment), the TACB (now TNRCC) will be required to submit to the EPA a revised inventory meeting the requirements of sections 187(a)(1) and 187(a)(5) of the CAA. 3. Nonattainment New Source Review (NSR) Permit Program The State of Texas submitted NSR regulatory revisions to the EPA on May 13, 1992, and November 3, 1992, respectively. NSR regulatory revisions were also included in a submittal by the State on August 31, 1993. The revisions were due independently of the November 15, 1992, moderate CO nonattainment area SIP requirements addressed in this FR action. The EPA action on the El Paso CO nonattainment NSR permit program will be addressed in detail in future separate FR notices. 4. Contingency Measures As per section 172(c)(9) of the CAA, all nonattainment SIPs must contain contingency measures (due November 15, 1993) that are to be implemented if the area fails to make reasonable further progress (RFP) or to attain the NAAQS by the applicable date. These contingency measures are to be implemented immediately after the EPA determines failure of RFP or attainment of standards. The contingency measures for the El Paso SIP, due independently of the November 15, 1992, moderate CO nonattainment area SIP requirements addressed in this FR action, were received by the EPA Region 6 on November 15, 1993, and will be addressed in a separate FR action. 5. I/M SIP Revision Section 187(a)(4) of the CAA provides a savings clause for vehicle I/M programs. All moderate CO nonattainment SIPs must include a vehicle I/M program as described in section 182(a)(2)(B). The State of Texas adopted State rules and currently is operating a State I/M program in El Paso, Texas. The State of Texas has also submitted a committal SIP for the El Paso CO nonattainment area to the EPA, in accordance with provisions of the General Preamble (57 FR 13530), stating that a comprehensive SIP revision will be submitted to the EPA by November 15, 1993, which will upgrade the existing El Paso, Texas, I/M program to meet the new requirements mandated by the CAAA of 1990. The EPA proposed approval of the committal SIP in a separate FR action published on September 27, 1993. 6. Oxygenated Fuels Program Motor vehicles are significant contributors of CO emissions. An important measure toward reducing these emissions is the use of cleaner-burning oxygenated gasoline. Extra oxygen, contained within the oxygenate in the fuel, enhances fuel combustion and helps to offset fuel-rich operating conditions, particularly during vehicle starting, which are more prevalent in the winter. Section 211(m) of the CAAA requires that various States submit revisions to their SIPs, and implement oxygenated gasoline programs by no later than November 1, 1992. This requirement applies to all States with CO nonattainment areas with design values of 9.5 ppm. or more, which is based generally on 1988 and 1989 data. Each State's oxygenated gasoline program must require gasoline sold or dispensed in the specified control area to contain not less than 2.7 percent oxygen by weight during that portion of the year in which the area is prone to high ambient concentrations of CO (the control period). The EPA announced guidance on the establishment of control periods, by area, in the FR on October 20, 1992.4 The EPA also announced the availability of oxygenated gasoline credit program guidelines in the October 20, 1992, FR.5 Under a credit program, marketable oxygen credits may be generated from the sale of gasoline with a higher oxygen content than is required (i.e., an oxygen content greater than 2.7 percent by weight). These oxygen credits may be used to offset the sale of gasoline with a lower oxygen content than is required. As an alternate to the credit program, the State may elect a program in which a minimum of 2.7 percent by weight oxygen must be present in every gallon of gasoline sold. --------------------------------------------------------------------------- \4\ See ``Guidelines for Oxygenated Gasoline Credit Programs and Guidelines on Establishment of Control Periods under section 211(m) of the CAA as Amended--Notice of Availability,'' 57 FR 47849 (October 20, 1992). \5\ See note 4, above. The EPA issued guidelines for credit programs under section 211(m)(5) of the CAA. --------------------------------------------------------------------------- The EPA also issued labeling regulations under section 211(m)(4) of the CAA. These labeling regulations were published in the FR on October 20, 1992.6 --------------------------------------------------------------------------- \6\ See ``Notice of Final Oxygenated Fuels Labeling Regulations under section 211(m) of the Clean Air Act as Amended--Notice of Final Rulemaking,'' 57 FR 47769. The labeling regulations may be found at 40 CFR part 80, section 80.35. --------------------------------------------------------------------------- The State of Texas adopted amendments to its TACB Regulation IV, Control of Air Pollution from Motor Vehicles, Chapter 114, to add a Section 114.13, which establishes an Oxygenated Fuel Program for El Paso. The TACB (now TNRCC) Board approved the Regulation IV revisions on September 18, 1992. The program covers the County of El Paso, Texas (the control area), which is also the El Paso Metropolitan Statistical Area. In this action, the EPA is proposing approval of the El Paso oxygenated fuel program, based on the TACB's revised Chapter 114, Control of Air Pollution from Vehicles, section 114.13, Oxygenated Fuels. The State has entered into an agreement with the El Paso City/ County Health Department (known as the El Paso Local Air Pollution Control Program) for that agency to assist the State with the administration of the oxygenated fuels program. The agreement, in the form of grant objectives, details the activities that El Paso will undertake for the State in the administration of the oxygenated fuels program. Examples of the activities the El Paso City/County Health Department performs for the State in the oversight of the oxygenated fuels program include sampling 20 percent of the affected facilities and reporting on the number of violations during the control period. The TNRCC is, however, ultimately responsible for the administration, oversight, and enforcement of the El Paso oxygenated fuels program. The control period for the program is from October 1 of one year to March 31 of the following year, and the program is one in which all oxygenated gasoline must contain a minimum oxygen content of 2.7 percent by weight of oxygen. The State has adopted labeling regulations, enforcement procedures, and oxygenate test methods in conformity with Federal regulations. For further details of the oxygenated fuels program, the reader is referred to the TSD. 7. Enforceability Issues All measures and other elements in the SIP must be enforceable by the State and the EPA. See sections 172(c)(6), 110(a)(2)(A) and 57 FR 13556. The EPA criteria addressing the enforceability of SIPs and SIP revisions were stated in a September 23, 1987, memorandum (with attachments) from J. Craig Potter, Assistant Administrator for Air and Radiation, et al. See 57 FR 13541. The criteria include, for example: ensuring that the rules contained in the SIP are explicit in their applicability to the regulated sources; ensuring that compliance dates are clearly specified; ensuring that compliance periods and test methods are clearly noted; ensuring that adequate recordkeeping is required; and ensuring that any exemptions or variances are clear in their applicability and in how they are triggered. In addition to enforceable requirements, nonattainment area plan provisions must contain a program that provides for enforcement of the control measures and other elements in the SIP. See section 110(a)(2)(C). The State of Texas has an enforcement program that will ensure that certain control measures contained in the El Paso CO SIP (i.e., the oxygenated fuels) are adequately enforced. As stated in the oxygenated fuels section of this FR notice, the State has an agreement with the El Paso City/County Health Department for that agency to assist the TACB (now TNRCC) in its oversight activities regarding the oxygenated fuels program. The State, however, is responsible for the administration, oversight, and enforcement of the El Paso oxygenated fuels program. 8. Attainment Demonstration There is no attainment demonstration required for CO nonattainment areas with design values equal to or below 12.7 ppm. and El Paso's design values are less than 12.7 ppm. However, the International Border provision (section 179B of the CAA commonly referred to as section 818 of the CAAA), provides a State on an international border, such as Texas, an option to satisfy the EPA Administrator regarding attainment of the NAAQS by the statutory deadline. Specifically, section 179B provides that a nonattainment area on an international border that fails to meet NAAQS will not be reclassified if it can demonstrate attainment ``but for emissions emanating from outside the United States.'' Criteria for a section 818 demonstration are further discussed in the TSD. The TACB (now TNRCC) included in this SIP revision its intention to perform a section 818 CO technical analysis for El Paso. The EPA will take action on a section 818 El Paso CO demonstration, if one is submitted, in a future FR notice. Proposed Action The EPA in this action is proposing to approve the following elements of the complete El Paso CO SIP: The 1990 base year CO emissions inventory and the oxygenated fuels program. The remaining elements of the complete El Paso CO SIP to be submitted to the EPA by November 15, 1993, will be acted upon in separate FR actions. The EPA has reviewed these revisions to the El Paso CO SIP and is proposing to approve them as submitted. Request for Public Comments The EPA is requesting comments on all aspects of today's proposal. As indicated at the outset of this notice, the EPA will consider any comments received by May 4, 1994. Miscellaneous Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities (5 U.S.C. 603 and 604). Alternatively, the EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. SIP approvals under section 110 and Subchapter I, part D, of the CAA do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP- approval does not impose any new requirements, I certify that it does not have a significant impact on any small entities affected. Moreover, due to the nature of the Federal-State relationship under the CAA, preparation of a regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The CAA forbids the EPA to base its actions concerning SIPs on such grounds (Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S. Ct. 1976); 42 U.S.C. section 7410(a)(2). Executive Order 12866 This action has been classified as a table 2 action by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993, memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation. A future notice will inform the general public of these tables. On January 6, 1989, the Office of Management and Budget (OMB) waived table 2 and table 3 SIP revisions (54 FR 2221) from the requirements of Section 3 of Executive Order 12291 for 2 years. The EPA has submitted a request for a permanent waver for table 2 and table 3 SIP revisions. The OMB has agreed to continue the temporary waiver until such time as it rules on EPA's request. This request continues in effect under Executive Order 12866 which superseded Executive Order 12291 on September 30, 1993. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401-7671q. Dated: March 18, 1994. Joe D. Winkle, Acting Regional Administrator. [FR Doc. 94-7980 Filed 4-1-94; 8:45 am] BILLING CODE 6560-50-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-7980. Public record. Not legal advice.