Approval and Promulgation of Implementation Plans(SIP); Texas: 1990 Base Year Emissions Inventories, 15% Rate of Progress Plans, Contingency Plans, and Motor Vehicle Emission Budgets

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-80-1-7353; FRL-6173-8]

Approval and Promulgation of Implementation Plans(SIP); Texas:

1990 Base Year Emissions Inventories, 15% Rate of Progress Plans,

Contingency Plans, and Motor Vehicle Emission Budgets

AGENCY: Environmental Protection Agency (EPA).

ACTION: Conditional interim final rule.

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SUMMARY: In this action, the EPA is granting conditional interim

approval of the 15% Rate-of-Progress (ROP) Plans and associated Motor

Vehicle Emissions Budgets (MVEB) for the Dallas/Fort Worth, El Paso and

Houston/Galveston ozone nonattainment areas. In addition, EPA is fully

approving revisions to the 1990 base year emissions inventories and the

contingency plans for the three areas. The 15% ROP Plans and MVEB's are

receiving conditional interim approval, instead of full approval,

because they rely on emission reductions from the Texas Inspection and

Maintenance (I/M) Program which received final conditional interim

approval on July 11, 1997 (62 FR

[[Page 62944]]

37138). This action will aid in ensuring the attainment of the National

Ambient Air Quality Standard (NAAQS) for ozone as required by the Clean

Air Act (Act), as amended in 1990.

DATES: This conditional interim final rule is effective on December 10,

1998.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

following locations. Persons interested in examining these documents

should make an appointment with the appropriate office at least 24

hours before the visiting day.

Environmental Protection Agency, Region 6, Air Planning Section (6PD-

L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

Texas Natural Resource Conservation Commission, 12100 Park 35 Circle,

Austin, Texas 78711-3087.

FOR FURTHER INFORMATION CONTACT: Mr. Guy R. Donaldson, Air Planning

Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-

2733, telephone (214) 665-7242.

SUPPLEMENTARY INFORMATION:

I. Background

Section 182(b)(1) of the Act requires ozone nonattainment areas

with classifications of moderate and above to develop plans to reduce

area-wide Volatile Organic Compound (VOC) emissions by 15% from a 1990

baseline during the first six years after enactment (November 15,

1996). In addition, section 172(c)(9) of the Act requires that

contingency measures be included in the plan revision to be implemented

if reasonable further progress is not achieved or if the standard is

not attained.

In Texas, four moderate and above ozone nonattainment areas are

subject to the 15% Rate of Progress (ROP) requirements. These are the

Beaumont/Port Arthur (moderate 1), Dallas/Fort Worth

(serious 2), El Paso (serious), and Houston/Galveston

(severe) areas.

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\1\ Previously classified serious. On April 2, 1996, EPA

corrected the classification of Beaumont/Port Arthur to moderate (61

FR 14496).

\2\ Reclassified to serious (63 FR 8128, February 18, 1998).

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The Governor of Texas submitted revisions to the State

Implementation Plan(SIP) in a letter dated August 9, 1996, including

revisions to the 15% ROP Plans for the Beaumont/Port Arthur, Dallas/

Fort Worth, El Paso and Houston/Galveston areas. The revisions also

included changes to the 1990 Base Year Inventory, the El Paso Section

179B International Border analysis, the Post-96 ROP Plan for Houston

and the Houston/Galveston Employee Commute Options SIP.

The EPA proposed conditional interim approval of the 15% ROP plans

for the Dallas/Fort Worth, El Paso and Houston areas on July 11, 1997

(62 FR 37175). For further information, including specification of the

measures included in the 15% ROP Plans, please see that Federal

Register notice.

In this Federal Register action, EPA is approving only the

Emissions Inventories, 15% ROP Plans, MVEB and Contingency measures for

the Dallas/Fort Worth, El Paso and Houston/Galveston areas. The EPA is

taking no action on the other portions of the August 9, 1996,

submittal, including the Beaumont/Port Arthur 15% ROP Plan. Final

action approving the Beaumont/Port Arthur 15% ROP Plan and associated

Contingency Plan, revisions to the 1990 Emissions Inventory for

Beaumont/Port Arthur, and MVEB for Beaumont/Port Arthur was published

in the Federal Register on February 10, 1998 (63 FR 6659). The other

portions of the submittal will be processed in separate Federal

Register actions.

II. Public Comments and EPA Responses

The EPA received comment letters from the Houston Airport System,

the Air Transport Association, American Airlines, and the Dallas/Fort

Worth International Airport Board. All of the comments address related

issues. The commentors' concerns are summarized below.

1. The City of Houston, Department of Aviation requested a 180-day

extension to the comment period so a revised emissions inventory for

the Houston/Galveston area could be prepared to reflect the area's

actual and projected aircraft emissions. The City of Houston's comment

is based on the belief that the SIP inventory of 1.82 tons/day

understates the actual emissions attributable to commercial aviation in

the City of Houston.

2. The Air Transport Association of America (ATA) requested a 90-

day extension to the comment period. The ATA believes that current

emissions and emission calculations associated with growth of the DFW

International Airport have not been properly taken into account. The

ATA also refers to a document entitled ``DOT/FAA Final Environmental

Impact Statement: Dallas/Fort Worth International Airport Runway 16/34

East--Runway 16/34 West'' (1991). The ATA believes that information

from this document was not incorporated in the Dallas/Fort Worth 15%

ROP plan.

3. American Airlines also asked for a 90-day extension to the

comment period to allow for revision of the 1990 emissions inventory

and the 15% ROP Plan. American Airlines refers to the 1991

Environmental Impact Statement as providing documentation that the 1990

base year inventory for Dallas/Fort Worth area is incorrect and the

projected emissions do not accurately project anticipated emissions

growth at DFW Airport. Their analysis indicated that: turboprop

aircraft were not included in the emission estimate for the DFW

Airport; the inventory is based on default times for the various stages

of aircraft operations (i.e. take-off, climb-out, approach and idle/

taxi) in the landing/take-off (LTO) cycle, which are not specific to

the DFW airport; and the EIS was based on LTO cycle times appropriate

to the DFW airport and included turboprop aircraft.

4. The DFW International Airport Board requested a 180-day

extension to the comment period. They also commented that the estimate

of emissions from commercial aircraft is significantly understated and

conflicts with the 1991 Environmental Impact Statement. In addition,

the ROP Plan does not consider projections for anticipated growth in

aircraft activity in the Dallas/Fort Worth Area. The DFW Airport Board

expressed the same concerns that were identified by American Airlines

regarding the emission calculations.

All of the commentors expressed concern that if emissions growth is

underestimated, future planned expansions at the airports in the

nonattainment areas will not be able to conform to the applicable SIP.

Response to Comments

Comment: All of the commentors asked for an extension of the

comment period. During that time they would develop documentation for a

revised emission inventory and projected emissions.

Response: The EPA does not believe that additional time for comment

is appropriate. The EPA approved the State's estimate of 1990

commercial aircraft emissions in the Federal Register action on the

1990 emissions inventories for the Houston/Galveston and Dallas/Fort

Worth areas on November 8, 1994 (59 FR 55586). No comments were

received on the 1994 action that referred to the commercial aircraft

inventory. In the July 11, 1997, Federal Register, EPA did not propose

to revise the approved estimates of the 1990 commercial aircraft

emissions, nor did Texas submit a revision to this portion of the

inventories. Thus, the

[[Page 62945]]

July 11, 1997, Federal Register proposal did not reopen the 1990 base

year emissions inventory for commercial aircraft. In addition, the

amount of emissions growth allocated for commercial aviation is at the

discretion of the State. Therefore, the commentors' appropriate course

of action for revising the base year inventories and projected future

emissions estimates for commercial aircraft, is to work with Texas with

the goal of the State submitting to EPA revisions to the inventories

and the SIP. If revisions are submitted to EPA, they would be acted

upon in a separate action published in the Federal Register.

Comment: The Emissions Inventories should be disapproved because

the level of commercial aircraft emissions are understated.

Response: The EPA approved the 1990 emission inventory for

commercial aircraft in a previous Federal Register action and did not

propose to revise it in the July 11, 1997 Federal Register proposal.

Since EPA did not propose to revise the commercial aircraft emissions

in the approved inventory, we cannot address this comment in this

rulemaking.

However, EPA believes that the major potential source of

discrepancy is that the approved 1990 emission inventory is calculated

using default values for the idle/taxi times at the airports. The

approach of using default times for estimating airport emissions is

reasonable and follows EPA guidance and, therefore, can be approved.

The EPA encourages States to use site specific measured values in place

of default values whenever possible. However, since Texas did not do so

in this case, the appropriate course of action is for the commenters to

work with the State on this issue.

Comment: The 15% ROP SIPs should be disapproved because they do not

accurately project the growth in commercial aircraft emissions.

Response: The issue of whether the State has projected adequate

growth in emissions for commercial aircraft emissions is of particular

concern because the section 176 General Conformity requirements of the

Act could impede future planned expansions if the SIP does not allow

for sufficient projected emissions. The EPA believes that States must

account for growth in emissions so that the air quality planning

efforts have a reasonable chance of success. In the case of commercial

aircraft emissions, the State followed EPA guidance and projected that

aircraft emissions would grow based on the Economic Growth Analysis

System (EGAS). The EGAS projects growth in emissions based on economic

projections for particular industries. The State followed EPA's

guidance in projecting growth. The EPA believes the State's estimate is

reasonable and can be accepted. If growth in emissions in excess of the

State's estimate is desired by the airports, they should work with the

State to ensure that the desired growth is accounted for in the SIP.

The State has the discretion to provide for future emissions growth in

the SIP and EPA can accept projections that are reasonable and based on

EPA guidance.

III. Rulemaking Action

Pursuant to sections 110 and Part D of the Act, EPA is approving

the revised emissions inventories for the Dallas/Fort Worth, El Paso

and Houston/Galveston areas and Contingency Plans. The EPA is giving

conditional interim approval to the 15% ROP Plans and associated MVEB

for the Dallas/Fort Worth, El Paso and Houston/Galveston areas.

The 15% ROP Plans for the three areas can only receive a

conditional interim approval because the plans all rely, in part, on

emission reductions from the revised I/M program. The EPA published

conditional interim approval of the I/M program for the three areas on

July 11, 1997 (62 FR 37138). Therefore, the 15% ROP Plans can only

receive conditional interim approval.

Interim Approval

Section 348 of the National Highway Systems Designation Act (NHSDA)

allows States to make a ``good faith'' estimate of the reductions that

will be achieved by the I/M program. The I/M program can be given

interim approval during a 18-month period during which the program is

evaluated to validate the ``good faith'' estimate. At the end of the

18-month interim period (February 11, 1999), the interim approval for

the I/M program will automatically lapse pursuant to the NHSDA. It is

expected that, by that time, the State will be able to make a

demonstration of the program's effectiveness using appropriate

evaluation criteria. If the State fails to provide such a demonstration

of the program's effectiveness to EPA by February 11, 1999, the interim

approval will lapse. A lapse of the I/M approval resulting from the

State failing to provide a program demonstration could result in EPA

disapproval of the I/M SIP. Lapse of the I/M interim approval will

result in a 15% ROP Plan approval lapse unless emission reductions are

submitted and approved which can replace the projected emission

reductions from I/M. Information from the I/M program evaluation

showing the program achieves a lesser amount of emissions reductions

than originally projected will be considered in any future actions on

the 15% ROP Plans. Further discussion of the requirements for final

approval of the I/M program is contained in the October 3, 1996,

Federal Register (61 FR 51651).

Conditional Approval

The EPA is granting conditional approval of the 15% Plans

contingent upon the State meeting the conditions outlined in the I/M

conditional approval. These include the State obtaining the appropriate

legislative authority as needed to implement the program outlined in

the Governor's Executive Order. If the State fails to meet the

conditions within 12 months of the effective date of the conditional

interim final approval, this action on the 15% Plans will convert to a

disapproval. However, the State submitted in a letter, dated May 29,

1997, a revision to the SIP including the items identified in the

conditions. A completeness letter was sent on August 18, 1997.

Therefore, there will be no automatic conversion of the I/M or 15% Rate

of Progress plans to disapproval. The EPA is evaluating whether the SIP

revision meets the requirements of the conditional approval and will

take action in a separate Federal Register document.

Motor Vehicle Emissions Budgets

The Clean Air Act, section 176(c), and the transportation

conformity rule require States to establish MVEB in any control

strategy SIP that is submitted for attainment and maintenance of the

National Ambient Air Quality Standards. The EPA is granting conditional

interim approval to the MVEB listed below, for the Dallas/Fort Worth,

El Paso, and Houston/Galveston areas.

1996 VOC Motor Vehicle Emission Budget

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VOC (tons/

Area day)

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Dallas/Fort Worth......................................... 165.49

El Paso................................................... 21.63

Houston/Galveston......................................... 152.12

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IV. Administrative Requirements

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental

[[Page 62946]]

factors and in relation to relevant statutory and regulatory

requirements.

A. Regulatory Flexibility Analysis

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because conditional approvals of

SIP submittals under section 110 and subchapter I, part D of the Clean

Air Act 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 this action will not have a significant economic impact on a

substantial number of small entities. Moreover, due to the nature of

the Federal-State relationship under the Clean Air Act, preparation of

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co., v.

U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

If the conditional approval is converted to a disapproval under

section 110(k), based on the state's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new Federal requirement. Therefore, I certify that

this disapproval action will not have a significant economic impact on

a substantial number of small entities because it does not remove

existing requirements nor does it substitute a new federal requirement.

B. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in estimated costs to State, local, or

tribal governments in the aggregate; or to private sector, of $100

million or more. Under section 205, EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires EPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

preexisting requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

Since this action does not impose any mandate, it is also not subject

to Executive Order 12875 concerning Federal mandates.

C. Submission to Congress and the Comptroller General

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. The 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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

D. Executive Orders 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under Executive Order 12866 entitled,

``Regulatory Planning and Review.''

E. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

F. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, representatives of Indian tribal governments

are ``to provide meaningful and timely input in the development of

regulatory policies on matters that significantly or uniquely affect

their communities.'' Today's rule does not significantly or uniquely

affect the communities of Indian tribal governments. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

G. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under

Executive Order 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective

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and reasonably feasible alternatives considered by the Agency.

This rule is not subject to E.O. 13045 because it is does not

involve decisions intended to mitigate environmental health or safety

risks.

H. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by January 11, 1999. Filing a petition for

reconsideration by the Administrator of this conditional interim final

rule does not affect the finality of this rule for the purposes of

judicial review, nor does it extend the time within which a petition

for judicial review may be filed, and shall not postpone the

effectiveness of such rule or action. This action may not be challenged

later in proceedings to enforce its requirements. See section

307(b)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: September 23, 1998.

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. Section 52.2270 is amended by adding paragraph (c)(113) to read

as follows:

Sec. 52.2270 Identification of plan.

* * * * *

(c) * * *

(113) The Texas Natural Resource Conservation Commission submitted

a revision to the State Implementation Plan (SIP) on August 9, 1996.

This revision contained, among other things, 15% Rate-of-Progress plans

for the Dallas/Fort Worth, El Paso and Houston/Galveston ozone

nonattainment areas which will aid in ensuring the attainment of the

National Ambient Air Quality Standards for ozone. This submittal also

contained revisions to the 1990 base year emissions inventories, the

associated Motor Vehicle Emission Budgets and contingency plans.

(i) Incorporation by reference. Texas Natural Resource Conservation

Commission (TNRCC) order adopting amendments to the SIP; Docket Number

96-0465-SIP, issued July 31, 1996.

(ii) Additional material.

(A) TNRCC certification letter dated July 24, 1996, and signed by

Gloria Vasquez, Chief Clerk, TNRCC.

(B) The SIP narrative plan and tables dated July 24, 1996 entitled,

``Revisions to the State Implementation Plan (SIP) for the Control of

Ozone Air Pollution,'' as it applies to the Dallas/Fort Worth, El Paso

and Houston areas' 15% Rate-of-Progress plans, emissions inventories,

motor vehicle emissions budgets and contingency plans.

* * * * *

3. Section 52.2309 is amended by adding paragraph (e) to read as

follows:

Sec. 52.2309 Emissions inventories.

* * * * *

(e) The Texas Natural Resource Conservation Commission submitted a

revision to the State Implementation Plan (SIP) on August 9, 1996. This

revision was submitted for the purpose of satisfying the 15% Rate-of-

Progress requirements of the Clean Air Act, which will aid in ensuring

the attainment of the National Ambient Air Quality Standards for ozone.

This submittal also contained revisions to the 1990 base year emissions

inventories for the Dallas/Fort Worth, El Paso and Houston/Galveston

areas.

[FR Doc. 98-29812 Filed 11-9-98; 8:45 am]

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