Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Rules and Regulations 52659 

1 During the comment period, EPA did not 

receive comments regarding environmental justice 

and the HECT program. However, during the 

finalization process we have reevaluated our 

interpretation of the definition of Environmental 

Justice as found in Executive Order 12898. In our 

proposed approval of the HECT program, we stated 

that ‘‘environmental justice concerns arise when a 

trading program could result in disproportionate 

impacts on communities populated by racial 

minorities, people with low incomes, or Tribes.’’

On further review, we believe the following 

description is more consistent with E.O. 12898: 

‘‘Environmental justice concerns can arise when a 

final rule, such as a trading program, could result 

in disproportionate burdens on particular 

communities, including minority or low income 

communities.’’ This revised language does not alter 

our determination that the HECT program does not 

raise environmental justice concerns. 

* * * * * 

[FR Doc. 06–7409 Filed 9–5–06; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0033; FRL–8216–

6] 

Approval and Promulgation of State 

Implementation Plans; Texas; Highly 

Reactive Volatile Organic Compound 

Emissions Cap and Trade Program for 

the Houston/Galveston/Brazoria Ozone 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving revisions to 

the Texas State Implementation Plan 

concerning the Highly Reactive Volatile 

Organic Compound Emissions Cap and 

Trade Program for the Houston/ 

Galveston/Brazoria ozone 

nonattainment area. 

DATES: This rule is effective on October 

6, 2006. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2005–TX–0033. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, 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 

http://www.regulations.gov or in hard 

copy at the Air Permitting Section 

(6PD–R), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733. The file will 

be made available by appointment for 

public inspection in the Region 6 FOIA 

Review Room between the hours of 8:30 

a.m. and 4:30 p.m. weekdays except for 

legal holidays. Contact the person listed 

in the FOR FURTHER INFORMATION

CONTACT paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15-cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal related to this SIP 

revision, and which is part of the EPA 

docket, 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: 

Adina Wiley, Air Permitting Section 

(6PD–R), EPA Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202–2733, 

telephone 214–665–2115, 

wiley.adina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Outline 

I. What action is EPA taking? 

II. What is the background for this action? 

III. What are EPA’s responses to comments 

received on the proposed action? 

IV. What does Federal approval of a State 

regulation mean to me? 

V. Statutory and Executive Order Reviews 

I. What action is EPA taking? 

EPA is approving the Highly Reactive 

Volatile Organic Compound Emissions 

Cap and Trade (HECT) Economic 

Incentive Program (EIP), published at 

Texas Administrative Code (TAC) Title 

30, Chapter 101 General Air Quality 

Rules, Subchapter H Emissions Banking 

and Trading, Division 6, sections 

101.390–101.394, 101.396, 101.399–

101.401, and 101.403. These revisions 

were adopted by the Texas Commission 

on Environmental Quality (TCEQ) on 

December 01, 2004, and submitted to 

EPA on December 17, 2004, as a 

revision to the State Implementation 

Plan (SIP). As discussed in our 

proposed action at 70 FR 58144, we 

conclude that the HECT program is 

consistent with section 110(l) of the 

Clean Air Act. We proposed approval of 

the HECT program as an element of the 

Texas SIP for the Houston/Galveston/ 

Brazoria (HGB) ozone nonattainment 

area on October 5, 2005 (70 FR 58138). 

II. What is the background for this 

action? 

The HECT program was adopted as a 

state regulation on December 1, 2004. 

The TCEQ developed the program as 

part of its mid-course review of the 1- 

hour ozone attainment plan for the HGB 

ozone nonattainment area. The midcourse review showed that ozone 

reductions comparable to those 

achieved by the 90 percent reduction in 

industrial nitrogen oxide (NOX) 

emissions and the enforceable 

commitments for an additional 42 tons 

per day of NOX reductions required in 

the November 2001 (66 FR 57160) 

approved SIP could be achieved through 

a combination of 80 percent reduction 

in industrial NOX emissions and 

additional targeted control of certain 

highly-reactive volatile organic 

compounds (HRVOCs). TCEQ has 

chosen to revise its attainment strategy 

accordingly, decreasing the emphasis on 

NOX control and requiring additional 

reductions of HRVOCs. 

In our proposed approval of the HECT 

program, we stated that final action on 

the HECT would not occur until we 

published final approval of the 

attainment demonstration, which is 

being processed concurrently with this 

approval. For a further discussion of the 

attainment demonstration and EPA’s 

responses to comments on this action, 

please see our action on the attainment 

demonstration (EPA–R06–OAR–2005–

TX–0018), which is being published 

elsewhere in today’s Federal Register. 

III. What are EPA’s responses to 

comments received on the proposed 

action? 

EPA’s responses to comments 

submitted by Galveston-Houston 

Association for Smog Prevention 

(GHASP), Environmental Defense 

(Texas Office), the Lone Star Chapter of 

the Sierra Club, and Public Citizen 

(Texas Office) on November 4, 2005, are 

as follows. EPA has summarized the 

comments below; the complete 

comments can be found in the 

administrative record for this action 

(EPA–R06–OAR–2005–TX–0033). While 

the comments generally discuss VOC 

trading programs, we are only 

addressing comments specific to 

HRVOCs and the HECT. 1

Comment 1: The EPA uses the term 

‘‘less-reactive VOC’’, but the TCEQ term 

‘‘other VOC’’ (OVOC) is preferable. 

Some of the other VOCs are actually 

highly reactive on a molar basis, but are 

not emitted as widely or in as great a 

quantity as the designated HRVOCs. 

Response to Comment 1: We agree 

that the term ‘‘other VOC’’ (OVOC) will 


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more accurately define VOCs that are 

not categorized by TCEQ as highlyreactive. We are using the term OVOC 

instead of ‘‘less-reactive VOC’’ in our 

final actions on the HGB attainment 

demonstration and associated 

rulemakings. 

Comment 2: There are problems with 

the inventory of VOC and HRVOC 

emissions in the HGB nonattainment 

area. 

Response to Comment 2: While EPA 

acknowledges that there have been past 

VOC emission inventory problems from 

sources associated with the 

petrochemical industry (see our 

proposed approval of the revisions to 

the HGB attainment demonstration, 70 

FR 58119), EPA believes that the 

emission inventory developed by TCEQ 

for the HGB nonattainment area is an 

acceptable approach to characterizing 

the emissions in the HGB nonattainment 

area. In addition, we are incorporating 

by reference our responses to comments 

provided in our approval of the 

attainment demonstration for the HGB 

ozone nonattainment area (EPA–R06–

OAR–2005–TX–0018). Those responses 

more specifically address the 

commenters’ concerns regarding the 

development and use of the imputed 

inventory, characterization of other 

VOCs in the inventory, and appropriate 

emissions monitoring techniques for 

flares, fugitive emissions, and upsets. 

Also, as will be discussed more fully in 

our responses to Comments 3 and 4, the 

implementation of the HECT and the 

associated monitoring and reporting 

requirements will serve to improve the 

emissions inventory for HRVOCs in the 

HGB nonattainment area. 

Comment 3: The VOC and HRVOC 

trading programs use unreliable data, 

which cannot be replicably measured. 

There are problems with current 

methods for measurement of HRVOC 

and VOC emissions; therefore, the VOC 

and HRVOC trading programs do not 

meet EPA’s EIP Guidance for 

quantification. 

Response to Comment 3: EPA 

disagrees. The proposed HECT rule, at 

70 FR 58138, describes the basis for 

EPA’s conclusion that the HECT rule 

satisfies the EIP Guidance (‘‘Improving 

Air Quality with Economic Incentive 

Programs’’ EPA–452/R–01–001, January 

2001) criteria on quantifiability, which 

are found in Chapter 4 (‘‘Fundamental 

Principles of All EIPs’’). 

Emissions and emission reductions 

attributed to an EIP are quantifiable if 

they can be reliably and replicably 

measured: the source must be able to 

reliably calculate the amount of 

emissions and emission reductions from 

the EIP strategy, and must be able to 

replicate the calculations. Under the 

HECT program, sources address the 

element of quantification by using a 

quantification protocol that has been 

approved by TCEQ and EPA. Both 

agencies have important roles in 

ensuring these protocols provide 

reliable and replicable emission 

measurements. The approved 

quantification protocols for calculating 

annual HRVOC emissions for 

compliance with the HECT program are 

contained in sections 115.725 and 

115.764 of 30 TAC Chapter 115, Control 

of Air Pollution from Volatile Organic 

Compounds. Additionally, VOC 

emission reduction credits (ERCs) that 

are eligible for conversion into HECT 

allowances must also be quantified 

using the monitoring and testing 

methods required in sections 115.725 

and 115.764 and certified under the 

Emission Credit Banking and Trading 

program. The monitoring and testing 

protocols in sections 115.725 and 

115.764 all require continuous 

monitoring systems; EPA considers 

continuous monitoring systems reliable 

and replicable (see Section 5.3(a) of the 

EIP Guidance). If the monitoring and 

testing data required under sections 

115.725 and 115.764 are unavailable, 

sources can calculate HRVOC emissions 

for HECT compliance during this time 

period through continuous monitoring 

data, periodic monitoring data, testing 

data, data from manufacturers, and 

engineering calculations. This 

measurement hierarchy agrees with the 

emission measurement protocol 

hierarchy that EPA recommends in the 

EIP Guidance (see Section 5.2(d)). 

Comment 4: TCEQ and EPA lack 

confidence in current methods for 

measuring emissions. This lack of 

confidence increases the risks 

associated with a market-based trading 

program, until the TCEQ is able to 

reconcile ambient monitoring with 

industry emission inventories. For 

example, trading could exacerbate the 

challenge of identifying the cause of any 

program failures because comparisons 

of ambient monitoring trend data to 

emission inventory data will require 

consideration of the timing and 

magnitude of trades. 

Response to Comment 4: EPA 

disagrees. We have discussed above in 

response to Comments 2 and 3 our 

conclusion that the methods used for 

measuring emissions under the HECT 

program are consistent with EPA policy 

and guidance, and that the emissions 

inventory developed by TCEQ is an 

acceptable approach to characterizing 

the emissions in the HGB nonattainment 

area. Further, to the extent there are 

concerns related to differences between 

ambient monitoring data and the HGB 

industrial emissions inventory, the 

operation of the HECT will serve to 

increase rather than decrease the level 

of certainty. Specifically, the use of 

approved quantification methods 

required under the HECT will extend 

monitoring to vent gas streams, flares, 

and cooling tower heat exchanges 

systems that might not have been 

adequately monitored before. 

Accordingly, accounting for actual 

emissions under the HECT—which is 

required of each source subject to this 

program—should improve the industrial 

emissions inventory. 

Comment 5: The EPA should find that 

it is premature for TCEQ to allow 

trading of unquantifiable emissions of 

VOCs in the HGB nonattainment area. If 

either the source or the recipient 

incorrectly estimates the emissions 

involved in a trade, the region is at risk 

of a net increase in emissions as a result 

of the trade. Until refineries and 

chemical plants are able to routinely 

quantify their VOC emissions, EPA 

should not allow trading of these VOC 

emissions. 

Response to Comment 5: EPA 

disagrees that VOC emissions should be 

ineligible for trading in the HGB 

nonattainment area. EPA believes that 

allowing the petrochemical industry to 

trade VOC emissions under the HECT 

program is appropriate because the 

TCEQ has made changes in regulatory 

requirements to require that certain 

sources of VOC emissions comply with 

continuous emissions monitoring 

requirements by the end of 2006. 

Additionally, as discussed in the EIP 

Guidance, we have concluded that cap 

and trade programs can be effective 

ways to reduce emissions, especially 

from large stationary sources. Each trade 

is part of a system designed to 

significantly reduce emissions of the 

pollutants subject to the cap. EPA also 

believes that allowing the petrochemical 

industry to trade HRVOC emissions 

under the HECT program is appropriate 

notwithstanding the commenter’s 

concern about emissions estimates, 

because the HECT program satisfies the 

EIP Guidance criteria for quantification. 

In the HECT program, sources trading 

HECT allowances must quantify their 

emissions using the approved protocols 

in 30 TAC Chapter 115. The use of 

approved protocols ensures that sources 

correctly estimate their excess 

allowances or the amount of allowances 

needed to cover actual emissions. 

Additionally, TCEQ included a five 

percent safety margin in setting the 

overall level of annual emissions 

allowed under the HECT, which should 

produce a net annual average HRVOC 


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emissions decrease in the HGB 

nonattainment area below the level set 

by the cap. 

Comment 6: EPA should not approve 

the exclusion of emissions above the 

short-term limit from the annual cap if 

a trading program is approved. 

Response to Comment 6: EPA 

disagrees. We requested specific 

comment on this feature of the program 

because, as noted by us and the 

commenters, it departs from past 

practices with cap and trade programs. 

The commenters made one specific 

point in this regard, which we address 

in Comment 7. Our response to the more 

general comment follows. 

A key feature of the HGB attainment 

strategy is the two-part approach to 

HRVOC emissions. Routine HRVOC 

emissions are targeted and reduced 

through an annual cap-and-trade 

program, while the non-routine 

emissions from emission events, 

maintenance, start-up and shutdown are 

controlled through a short-term limit of 

1200 lb/hour. When exceedances of the 

short-term limit occur, the hourly 

emissions above 1200 lb/hr are not 

counted toward compliance with the 

annual cap but are still subject to 

enforcement as a violation of the shortterm limit. EPA expects that the root 

cause of the conditions giving rise to 

any particular exceedance of the shortterm limit will be identified and 

corrected as expeditiously as 

practicable. The source is still required 

to use good air pollution control 

practices consistent with the applicable 

NSPS (40 CFR 60.11(d)) and MACT 

standards or other applicable Federal or 

State programs. 

TCEQ concluded that separating the 

two control elements was an 

appropriate means of protecting smaller 

sources subject to the HECT from 

depending on market availability of 

allowances or facing enforcement action 

if all emissions from an exceptionally 

large release exhausted their HECT 

allowances. Additionally, this 

separation of the annual cap and the 

short-term limit establishes a clear 

procedure for handling emissions 

during non-routine events. We believe 

the annual cap in conjunction with the 

short-term limit will achieve the goals of 

the attainment demonstration as 

indicated by TCEQ’s modeling analysis. 

Please see our action and TSD on the 

attainment demonstration (EPA–R06–

OAR–2005–TX–0018) for further 

explanation. 

An additional advantage of separating 

these two control elements is that 

counting all emissions toward the 

annual cap could result in a loss of the 

incentives and cost-effectiveness 

associated with cap- and trade 

programs. In EPA’s experience with cap 

and trade programs, some sources will 

always overcontrol emissions, which 

they in turn will most likely sell to other 

sources that cannot achieve such 

reductions without making greater 

expenditures. Through the functioning 

of the cap and trade market, reductions 

will tend to be made by the sources able 

to make them in the most cost-effective 

manner, and therefore the program will 

tend to promote the achievement of the 

maximum amount of emission 

reductions per dollar of resources 

expended. 

In the HGB area, however, an 

additional important factor is present, in 

that a significant number of sources 

have the potential for large emissions 

events or ‘‘spikes.’’ In such 

circumstances, if a cap and trade 

program counts all emissions towards 

the cap, then overcontrolling sources 

will tend to retain all of their reductions 

as insurance against the possibility of 

consuming their entire annual 

allowance through an unforeseeable 

emissions event. Therefore, eligible 

reductions will not be traded as 

allowances, which will impair the 

market function of the cap and trade 

program and thereby weaken its 

tendency to cost effectively achieve 

emission reductions. The two-part 

structure of the Texas program offsets 

this disadvantage. 

Comment 7: EPA’s analysis suggests 

that the HECT program could lead to 

results that flout the intent of an EIP. An 

example would be a company that 

invests in efforts to dramatically reduce 

its routine HRVOC emissions below its 

annual cap, but fails to invest in efforts 

to reduce its risk of a major upset. This 

company could be the largest single 

emitter of HRVOCs in a year while also 

being a major seller of HECT 

allowances. 

Response to Comment 7: EPA 

disagrees. The proposed HECT rule, at 

70 FR 58143, describes EPA’s analysis 

and our determination that, on balance, 

the HECT program is approvable. The 

intent of the HECT is to reduce routine 

emissions of HRVOCs. The scenario 

presented by the commenters actually 

supports the design of the HECT, in that 

the routine HRVOC emissions have been 

controlled because the company has 

been able to ‘‘dramatically reduce’’

these emissions below the facility’s 

annual allocation level. The emissions 

associated with a major upset that are 

exempted from the annual cap 

(emissions above 1200 lb/hr) would be 

violations of the short-term emissions 

limit and subject to enforcement. We 

believe that this two-part approach to 

control of HRVOC emissions recognizes 

the uniqueness of the HGB 

nonattainment area and is appropriate 

to demonstrate attainment. Additional 

information on our analysis of the 

attainment demonstration is available in 

the rulemaking docket for this action 

(EPA–R06–OAR–2005–TX–0018). 

As noted in our proposed approval, 

the exemption of hourly limit 

exceedances from the annual cap is not 

provided for in EPA’s EIP Guidance, but 

the scenario provided by the 

commenters is unlikely to occur. Based 

on the final HECT allocation scheme 

updated March 20, 2006, the largest 

allocation is 441.9 tons. This allocation 

is approximately equivalent to 100.9 lb/ 

hr, assuming the facility will operate 

with the allocation as an hourly average 

to represent routine emissions. 

Therefore, the largest HECT allocation 

will be approximately twelve times 

smaller than the 1200 lb/hr short-term 

limit. For every other source under the 

HECT, the disparity would be even 

greater. Based on this difference 

between the short-term limit and 

presumed routine emissions levels, no 

source would be able to operate at the 

hourly limit for an extended period of 

time without pushing its emissions total 

close to or above the annual cap—in 

which case it would not be able to sell 

allowances. Therefore, as discussed in 

our proposal, only truly non-routine 

emissions will exceed the hourly limit. 

Such exceedances are subject to 

enforcement as a violation of the 1200 

lb/hr limit. Thus, two factors militate 

against the existence of the commenters’

hypothetical high-emitting allowance 

seller: (1) The improbability of a source 

operating for long above the hourly limit 

without consuming a large part of its 

annual allocation, and (2) the fact that 

each time it did exceed the hourly limit, 

it could be subject to enforcement. 

Because we find that the result cited by 

the commenters is unlikely to occur, we 

continue to believe that the relative 

advantages and disadvantages of the 

structure of the HECT program support 

approval. 

Also, while the structure of the HECT 

and the HRVOC rules anticipates that 

emission events will not be completely 

eradicated, EPA believes that in 

combination these programs provide 

sufficient disincentives that sources will 

sufficiently reduce the frequency and 

magnitude of large emission events such 

that emission events would not be 

expected to impact peak ozone levels. 

The University of Texas report 

‘‘Variable Industrial VOC Emissions and 

Their Impact on Ozone Formation in the 

Houston Galveston Area,’’ April 16, 

2004, estimated from historic 


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information that it is probable that at 

least one event will occur annually at a 

time and location to impact peak ozone. 

TCEQ determined, and EPA concurs, 

that it is therefore necessary to reduce 

the frequency of emission events so that 

emission events do not interfere with 

attainment of the 1-hour NAAQS, which 

only allows an average of one 

exceedance per year. Based on this 

study, we believe the hourly emission 

limit will achieve this goal. Because 

facilities would be expected to take 

action to avoid emission events 

exceeding the short-term limit of 1200 

lbs/hr, we anticipate that the frequency 

of such events in the future will be 

lower than in the past and on average 

less than 1 event per year impacting 

peak ozone should be expected. The 

University of Texas study also supports 

our belief that even if the scenario 

presented by the commenters does 

actually occur, it is unlikely to impact 

attainment of the 1-hour ozone NAAQS. 

Comment 8: If EPA approves the 

exclusion of emissions above the shortterm cap from the annual cap, it should 

at least condition its approval on the 

TCEQ adopting a requirement that a 

company may not be a net seller of 

HECT allowances in the same year that 

it makes use of the exclusion. 

Response to Comment 8: EPA 

disagrees. The condition described by 

the commenters is not necessary to 

ensure that the HECT functions 

properly. As described in our response 

to Comment 7 above, it is unlikely that 

a source would be a net seller of 

allowances and also exempt emissions 

above the hourly limit from its annual 

cap. 

Comment 9: If EPA approves the 

HECT program as adopted by the TCEQ, 

EPA should commit to independently 

auditing the program annually during 

its first several years to determine 

whether implementation of the rule 

meets EIP Guidance. 

Response to Comment 9: EPA 

disagrees that an independent audit of 

the HECT is necessary. As proposed by 

EPA (70 FR 58138), the HECT does have 

a formal audit provision that provides 

sufficient oversight to identify and 

address potential areas of concern. The 

audit provision is in section 101.403(a) 

of the HECT rules and requires TCEQ to 

conduct an audit every three years, 

beginning in 2007. The audit will 

evaluate the impact of the program on 

the State’s ozone attainment 

demonstration, the availability and cost 

of allowances, compliance by the 

participants, and any other elements the 

TCEQ Executive Director may choose to 

include. The TCEQ Executive Director 

will recommend measures to remedy 

any problems identified during the 

audit, including discontinuing 

allowances trading. The audit data and 

results must be completed and 

submitted to EPA and made available 

for public inspection within six months 

from the beginning of the audit. EPA 

will receive the audit reports and will 

have the opportunity through the SIP 

process to require any necessary 

changes. Additionally, facilities that do 

not have enough allowances to cover 

their actual HRVOC emissions during a 

control period will have their 

allowances for the next control period 

reduced by an amount equal to the 

emissions exceeding the allowances, 

plus an additional ten percent of the 

exceedance. Also, the TCEQ Executive 

Director has the authority to initiate 

enforcement actions if necessary to 

correct violations of the HECT program. 

The HECT audit provisions described 

above are consistent with EPA’s 

expectations for evaluating the results of 

an economic incentive program (EIP), as 

outlined in section 5.3(b) of the EIP 

Guidance. Section 5.3(b) explains that 

an appropriate schedule for program 

evaluations is at least every three years, 

which coincides with other periodic 

reporting requirements such as those 

applicable to emission inventory 

requirements required by the CAA. EPA 

believes that the triennial HECT audit 

schedule and the required annual report 

(section 101.403(b)) that summarizes all 

HECT trades completed in the most 

recent control period will be sufficient 

to ensure the HECT does not jeopardize 

the HGB area’s attainment strategy. 

EPA’s response to Texas Industry 

Project (TIP) comments made on 

November 4, 2005, is as follows: 

Comment: TIP supports EPA’s 

proposed approval of the HECT program 

and urges EPA to finalize its approval as 

soon as practicable. 

Response: EPA acknowledges the 

support of TIP for our approval of the 

HECT program. 

EPA’s response to comments made by 

the BCCA Appeal Group (BCCAAG) on 

November 4, 2005, is as follows: 

Comment 1: BCCAAG supports EPA’s 

proposed approval of the HECT program 

and urges EPA to finalize its approval as 

soon as practicable. 

Comment 2: BCCAAG supports the 

establishment of a separate short-term 

limit on HRVOC emissions, and the 

exclusion of short-term limit 

exceedances from the HECT program. 

Response to Comment 1 and 2: EPA 

acknowledges the support of BCCAAG 

for our approval of the HECT program 

and the specific feature of the HECT that 

allows exceedances of the short-term 

limit to be exempt from the HECT. 

We note that BCCAAG also submitted 

a set of comments on November 4, 2005, 

that were specific to our proposed 

action on the revisions to the HGB 

attainment demonstration. On page 8 of 

this submittal, the commenter 

references the HECT, but gives no 

additional information relevant to our 

rulemaking on the HECT. We are 

addressing this separate BCCAAG 

submittal in our action on the 

attainment demonstration (EPA–R06–

2005–TX–0018). 

IV. What does Federal approval of a 

State regulation mean to me? 

Enforcement of the State regulation 

before and after it is incorporated into 

the federally approved SIP is primarily 

a State function. However, once the 

regulation is federally approved, EPA 

and the public may take enforcement 

action against violators of these 

regulations. 

V. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(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, 


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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 

CAA. This rule also is not subject to 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the CAA. 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 CAA. 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 CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by November 6, 2006. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen oxides, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: August 24, 2006. 

Richard E. Greene, 

Regional Administrator, Region 6. 

■ 40 CFR part 52 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. The table in § 52.2270(c) entitled 

‘‘EPA Approved Regulations in the 

Texas SIP’’ is amended under Chapter 

101—General Air Quality Rules, 

Subchapter H—Emissions Banking and 

Trading, by adding in numerical order 

a new centered heading ‘‘Division 6—

Highly-Reactive Volatile Organic 

Compound Emissions Cap and Trade 

Program’’ followed by new entries for 

sections 101.390, 101.391, 101.392, 

101.393, 101.394, 101.396, 101.399, 

101.400, 101.401 and 101.403. 

The additions read as follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject State approval/ 

submittal date EPA approval date Explanation 

Chapter 101—General Air Quality Rules 

* * * * * * * 

Subchapter H—Emissions Banking and Trading 

* * * * * * * 

Division 6—Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Program 

Section 101.390 ................................... Definitions ............................................. 12/01/04 [Insert date of FR 

publication] [Insert 

FR page number 

where document 

begins].

Section 101.391 ................................... Applicability .......................................... 12/01/04 [Insert date of FR 

publication] [Insert 

FR page number 

where document 

begins].

Section 101.392 ................................... Exemptions ........................................... 12/01/04 [Insert date of FR 

publication] [Insert 

FR page number 

where document 

begins].


sroberts on PROD1PC70 with RULES
52664 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Rules and Regulations 

EPA APPROVED REGULATIONS IN THE TEXAS SIP—Continued 

State citation Title/subject State approval/ 

submittal date EPA approval date Explanation 

Section 101.393 ................................... General provisions ............................... 12/01/04 [Insert date of FR 

publication] [Insert 

FR page number 

where document 

begins].

Section 101.394 ................................... Allocation of allowances ....................... 12/01/04 [Insert date of FR 

publication] [Insert 

FR page number 

where document 

begins].

Section 101.396 ................................... Allowance deductions .......................... 12/01/04 [Insert date of FR 

publication] [Insert 

FR page number 

where document 

begins].

Section 101.399 ................................... Allowance Banking and Trading .......... 12/01/04 [Insert date of FR 

publication] [Insert 

FR page number 

where document 

begins].

Section 101.400 ................................... Reporting .............................................. 12/01/04 [Insert date of FR 

publication] [Insert 

FR page number 

where document 

begins].

Section 101.401 ................................... Level of activity certification ................. 2/01/04 [Insert date of FR 

publication] [Insert 

FR page number 

where document 

begins].

Section 101.403 ................................... Program audits and reports ................. 12/01/04 [Insert date of FR 

publication] [Insert 

FR page number 

where document 

begins].

* * * * * * * 

[FR Doc. 06–7410 Filed 9–5–06; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0023; FRL–8216–

4] 

Approval and Promulgation of State 

Implementation Plans; Texas; 

Revisions for the Mass Emissions Cap 

and Trade Program for the Houston/ 

Galveston/Brazoria Ozone 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving revisions to 

the Texas State Implementation Plan 

(SIP) concerning the Mass Emissions 

Cap and Trade (MECT) program for 

emissions of nitrogen oxides (NOX) in 

the Houston/Galveston/Brazoria (HGB) 

ozone nonattainment area. Additionally, 

EPA is approving several subsections of 

Chapter 116 of the Texas Administrative 

Code (TAC) (Control of Air Pollution by 

Permits for New Construction or 

Modification) that provide crossreferences to the MECT program. EPA is 

approving these revisions in accordance 

with the requirements of the Federal 

Clean Air Act (CAA). 

DATES: This rule is effective on October 

6, 2006. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2005–TX–0023. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, 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 

http://www.regulations.gov or in hard 

copy at the Air Permitting Section 

(6PD–R), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733. The file will 

be made available by appointment for 

public inspection in the Region 6 FOIA 

Review Room between the hours of 8:30 

a.m. and 4:30 p.m. weekdays except for 

legal holidays. Contact the person listed 

in the FOR FURTHER INFORMATION

CONTACT paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15-cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal related to this SIP 

revision, and which is part of the EPA 

docket, 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. 


sroberts on PROD1PC70 with RULES