[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2387-2392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-708]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0357; FRL-8761-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Approval of the Section 110(a)(1) Maintenance Plan for the 1997 
8-Hour Ozone Standard for El Paso County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving a revision to the 
Texas State Implementation Plan (SIP). The revision consists of a 
maintenance plan for El Paso County developed to ensure continued 
attainment of the 1997 8-hour ozone National Ambient Air Quality 
Standard (NAAQS) through the year 2014. The Maintenance Plan meets the 
statutory and regulatory requirements, and is consistent with EPA's 
guidance. EPA is approving the revision pursuant to section 110 of the 
Federal Clean Air Act (CAA).

DATES: This rule is effective on March 16, 2009 without further notice, 
unless EPA receives relevant adverse comment by February 17, 2009. If 
EPA receives such comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2006-0357, by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
    <bullet> E-mail: Mr. Guy Donaldson at <a href="/cdn-cgi/l/email-protection#bcd8d3d2ddd0d8cfd3d292dbc9c5fcd9ccdd92dbd3ca"><span class="__cf_email__" data-cfemail="492d262728252d3a2627672e3c30092c3928672e263f">[email protected]</span></a>. Please 
also send a copy by e-mail to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
    <bullet> Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
    <bullet> Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
    <bullet> Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2006-0357. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. 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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), 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 or 
Mr. Bill Deese at 214-665-7253 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 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: Jeffrey Riley, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-8542; fax number 
214-665-7263; e-mail address <a href="/cdn-cgi/l/email-protection#1a6873767f6334707f7c7c687f635a7f6a7b347d756c"><span class="__cf_email__" data-cfemail="93e1fafff6eabdf9f6f5f5e1f6ead3f6e3f2bdf4fce5">[email protected]</span></a>.

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

Outline

I. What Is the Action EPA Is Taking?
II. What Is the Background for This Action?
III. What Is EPA's Analysis of the State's Submittal?
IV. What Preconstruction Permitting Program Applies in the Area?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What Is the Action EPA Is Taking?

    EPA is approving a revision to the Texas SIP. The revision is a 
1997 8-hour ozone NAAQS maintenance plan for El Paso County. The State 
of Texas, through the Texas Commission on Environmental Quality (TCEQ), 
submitted the 1997 8-hour ozone NAAQS maintenance plan for El Paso 
County to EPA on January 20, 2006. EPA is approving the maintenance 
plan SIP revision for El Paso County as meeting the requirements of CAA 
Section 110(a)(1) and EPA's regulations under 40 CFR 51.905(c) and (d) 
and being consistent with EPA guidance. The maintenance plan is 
designed to help keep the El Paso area in attainment for the 8-hour 
ozone NAAQS through the year 2014.

II. What Is the Background for This Action?

    Under the 1990 CAA Amendments, El Paso County continued to be 
designated nonattainment for the 1-hour ozone NAAQS by operation of law 
and was

[[Page 2388]]

classified as a serious nonattainment area (see 56 FR 56694). El Paso 
County has unique considerations for ozone attainment planning due to 
airshed contributions from Ciudad Juarez, Mexico. Under Section 179B of 
the Act, the EPA approved the 1-hour ozone standard attainment 
demonstration SIP for El Paso County on June 10, 2004 (see 69 FR 
32450). TCEQ established to the EPA's satisfaction that implementation 
of the plan would achieve timely attainment of the 1-hour ozone NAAQS 
but for emissions emanating from Ciudad Juarez.
    EPA also found the El Paso area would attain by November 15, 1996, 
earlier than the attainment deadline of November 15, 1999. Due to this 
finding, and the State's enforceable commitment to perform basin-wide 
modeling whenever the necessary Juarez information became available, 
the requirement for a post-1996 plan with an additional 9 percent of 
reductions from November 1996 through November 1999 was deferred. This 
approval of the section 179B attainment demonstration SIP and deferral 
of the post-1996 plan was contingent; valid only as long as the area's 
modeling data continued to show that the El Paso 1-hour ozone area 
would be in attainment of the 1-hour NAAQS, but for emissions from 
outside the United States.
    TCEQ submitted all the other requirements for a 1-hour ozone 
nonattainment area classified as serious and EPA approved them as 
follows:

------------------------------------------------------------------------
                                                      Federal  Register
         Description            Date of approval           Notice
------------------------------------------------------------------------
15% Rate of Progress (ROP)    November 10, 1998...  63 FR 62943.
 Plan.
1990 base year Emissions      November 8, 1994....  59 FR 55589.
 Inventory.
Periodic Inventory..........  Most Recent:
                               December 2, 2004
                               (letter from TCEQ).
Emissions Statements........  August 26, 1994.....  59 FR 44036.
Enhanced I/M................  August 22, 1994,      59 FR 43046.
                               revised.
                              November 14, 2001...  66 FR 57261.
VOC Reasonably Available      March 7, 1995,        60 FR 12438.
 Control Technology (RACT).    revised.
                              October 1996........  61 FR 55897.
                              January 26, 1999....  64 FR 3841.
                              March 15, 1999......  64 FR 12759.
                              December 22, 1999...  64 FR 71666.
                              September 5, 2000...  65 FR 53595.
                              December 20, 2000...  65 FR 79745.
                              July 16, 2001.......  66 FR 36913.
New Source Review (NSR).....  September 27, 1995..  60 FR 49781.
Offset requirement..........  October 30, 1996....  61 FR 55894.
Reid Vapor Pressure.........  March 7, 1995.......  60 FR 12438.
Stage II Vapor Control......  April 15, 1994,       59 FR 17940.
                               revised.
                              March 29, 2005......  70 FR 15769.
Clean Fuel Vehicle Program..  February 7, 2001....  66 FR 9203.
Transportation Control        November 10, 1998...  63 FR 62943.
 Measures.
Enhanced Monitoring.........  October 4, 1994.....  59 FR 50504.
Failure-to-meet ROP and       May 22, 1997........  62 FR 27964.
 attainment contingency
 measures.
NOX Waiver..................  November 28, 1994...  59 FR 60714.
------------------------------------------------------------------------

    On April 30, 2004, EPA designated and classified areas for the 1997 
8-hour ozone NAAQS (69 FR 23858), and published the final Phase 1 rule 
for implementation of the 1997 ozone NAAQS (69 FR 23951). El Paso 
County was designated as unclassifiable/attainment for the 1997 ozone 
standard, effective June 15, 2004 (see 69 FR 23858). Consequently, this 
attainment area is required to submit a 10-year maintenance plan under 
section 110(a)(1) of the CAA and the Phase 1 rule. On May 20, 2005, EPA 
issued guidance providing information regarding how a state might 
fulfill the maintenance plan obligation established by the Act and the 
Phase 1 rule (Memorandum from Lydia N. Wegman to Air Division 
Directors, Maintenance Plan Guidance Document for Certain 8-hour Ozone 
Areas Under Section 110(a)(1) of Clean Air Act, May 20, 2005). On 
January 20, 2006, Texas submitted a 1997 8-hour ozone standard 
maintenance plan for El Paso County to EPA. This SIP revision satisfies 
the section 110(a)(1) CAA requirements for a plan that provides for 
implementation, maintenance, and enforcement of the 1997 8-hour ozone 
NAAQS in the El Paso County unclassifiable/attainment area.
    On December 22, 2006, the United States Court of Appeals for the 
District of Columbia Circuit issued an opinion that vacated EPA's Phase 
1 Implementation Rule for the 1997 8-Hour Ozone Standard. (South Coast 
Air Quality Management District. v. EPA, 472 F.3d 882 (DCCir. 2006). 
Petitions for rehearing were filed with the Court, and on June 8, 2007, 
the Court modified the scope of the vacatur of the Phase 1 rule. See 
489 F.3d 1245 (DC Cir. 2007), cert. denied, 128 S.Ct. 1065 (2008). The 
Court vacated those portions of the Rule that provide for regulation of 
the 1997 8-hour ozone NAAQS nonattainment areas under Subpart 1 in lieu 
of Subpart 2 and that allowed areas to revise their SIPs to no longer 
require certain programs as they applied for purposes of the 1-hour 
NAAQS; new source review, section 185 penalties, and contingency plans 
for failure to meet RFP and attainment milestones. Consequently, the 
Court's modified ruling does not alter any requirements under the Phase 
1 implementation rule for the 1997 8-hour ozone NAAQS for maintenance 
plans.
    The Phase 1 Rule also provided that for an area like El Paso, any 
outstanding obligations to provide SIP revisions concerning attainment 
demonstration and Rate of Progress (ROP) Plan for the 1-hour ozone 
NAAQS would no longer be required as long as the area continues to 
maintain the 8-hour standard. If the 8-hour standard is violated prior 
to the area having an approved 8-hour maintenance plan under section 
110(a)(1), the area would be required to submit a SIP revision to 
address the deferred post-1996 ROP plan. The area is not violating 
either the 1-hour or 8-hour standard, and upon the effective date of 
our approval of the 8-hour ozone maintenance plan, there no longer will 
be a potential outstanding requirement

[[Page 2389]]

to submit a 1-hour ozone post-1996 ROP Plan for the El Paso 1-hour 
ozone nonattainment area.\1\
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    \1\ Monitors in El Paso County currently reflect attainment of 
the 1-hour ozone NAAQS (2002-2004 data). The State, however, did not 
submit a request for redesignation of the area to attainment for the 
1-hour ozone standard and a section 175A maintenance plan. Because 
the area was never redesignated to attainment, the area must 
continue to meet the 1-hour ozone serious area applicable 
requirements (see 40 CFR 51.905(a)(3) and Section IV).
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III. What Is EPA's Analysis of the State's Submittal?

    On January 20, 2006, the State of Texas submitted a SIP revision 
containing a maintenance plan for the 1997 ozone NAAQS for El Paso 
County. The January revision provides a 1997 ozone NAAQS maintenance 
plan, as required by section 110(a)(1) of the CAA and the provisions of 
EPA's Phase 1 Implementation Rule (see 40 CFR 51.905(a)(4)). The 
purpose of the plan is to ensure continued attainment and maintenance 
of the 1997 ozone NAAQS in El Paso County.
    In this action, EPA is approving the State's maintenance plan for 
the 1997 ozone NAAQS for the area of El Paso County because EPA finds 
that the TCEQ submittal meets the requirements of section 110(a)(1) of 
the CAA, EPA's rule, and is consistent with EPA's guidance. As 
required, the plan provides for continued attainment and maintenance of 
the 1997 ozone NAAQS in the area for 10 years from the effective date 
of the area's designation as unclassifiable/attainment for the 1997 
ozone NAAQS, and includes components illustrating how the area will 
continue in attainment of the 1997 ozone NAAQS and contingency 
measures. Each of the section 110(a)(1) plan components is discussed 
below.
    (a) Attainment Inventory--The TCEQ developed comprehensive 
inventories of VOC and NO<INF>X</INF> emissions from area, stationary, 
and mobile sources using 2002 as the base year to demonstrate 
maintenance of the 1997 ozone NAAQS for El Paso County. The year 2002 
is an appropriate year for the TCEQ to base attainment level emissions 
because States may select any one of the three years on which the 8-
hour attainment designation for the 1997 ozone NAAQS was based (2001, 
2002, and 2003). The State's submittal contains the detailed inventory 
data and summaries by source category. The 2002 base year inventory is 
a good choice. Using the 2002 inventory as a base year reflects one of 
the years used for calculating the air quality design values on which 
the 8-hour ozone designation decisions were based. It also is one of 
the years in the 2002-2004 period used to establish baseline visibility 
levels for the regional haze program.
    A practical reason for selecting 2002 as the base year emission 
inventory is that Section 110(a)(2)(B) of the CAA and the Consolidated 
Emissions Reporting Rule (67 FR 39602, June 10, 2002) require States to 
submit emissions inventories for all criteria pollutants and their 
precursors every three years, on a schedule that includes the emissions 
year 2002. The due date for the 2002 emissions inventory is established 
in the rule as June 2004. In accordance with these requirements, the 
State of Texas compiles a statewide EI for point sources on an annual 
basis. For stationary point sources, for El Paso County, the TCEQ 
provided estimates for each commercial or industrial operation that 
emits 50 tons or more per year of VOC or NO<INF>X</INF> in Appendix B 
of the maintenance plan. This data is quality assured and entered into 
the State of Texas Air Reporting System (STARS). Projections for 2008 
and 2014 were developed using the August 2005 Texas Industrial 
Production Index (TIPI) derived growth factors, supplemented with 
Economic Growth Analysis System version 4.0 (EGAS 4.0). Stationary non-
point source data was grown by using EGAS 4.0, and On-road mobile 
emissions of VOC and NO<INF>X</INF> were estimated using EPA's 
MOBILE6.2 motor vehicle emissions factor computer model. Non-road 
mobile projections were developed with EPA's NONROAD model, with the 
exception of aircraft, airport ground support equipment, and 
locomotives. For these categories, the 2002 Periodic Emissions 
Inventory was grown to 2008 and 2014 using EGAS 4.0 growth factors, and 
the Federal Aviation Administration's Dispersion Modeling System (EDMS) 
model was used to develop aircraft emissions projections. EPA finds 
that the TCEQ prepared the 2002 base year emissions inventories and 
projected data to the years 2008 and 2014, for the area consistent with 
EPA's long-established guidance memoranda.
    The following table provides VOC and NO<INF>X</INF> emissions data 
for the 2002 base attainment year inventory, as well as projected VOC 
and NO<INF>X</INF> emission inventory data for the years 2008 and 2014. 
Please see the Technical Support Document (TSD) for additional 
emissions inventory data including projections by source category.

                 VOC and NOX Emissions Inventory Baseline (2002) and Projections (2008 and 2014)
----------------------------------------------------------------------------------------------------------------
                                                                  2002  tons per  2008  tons per  2014  tons per
                            Emissions                                   day             day             day
----------------------------------------------------------------------------------------------------------------
Total VOC.......................................................           52.44           47.53           44.61
Total NOX.......................................................           60.87           49.01           36.89
----------------------------------------------------------------------------------------------------------------

    As shown in the Table above, total VOC and total NO<INF>X</INF> 
emissions for El Paso County are expected to decrease over the 10-year 
period of the maintenance plan. Please see the TSD for more information 
on EPA's analysis and review of the State's methodologies, modeling 
data and performance, etc. for developing the base and attainment year 
inventories. The State has demonstrated that the future year 1997 8-
hour ozone emissions will be less than the 2002 base attainment year's 
emissions. The attainment inventories submitted by the TCEQ for this 
area are consistent with the criteria as discussed in the EPA 
Maintenance Plan Guidance memo dated May 20, 2005 and in other guidance 
documents (please see the docket for additional information). EPA finds 
that the future emissions levels in 2008 and 2014 are expected to be 
less than emissions levels in 2002.
    (b) Maintenance Demonstration--The primary purpose of a maintenance 
plan is to demonstrate how an area will continue to remain in 
compliance with the 1997 ozone standard for the 10 year period 
following the effective date of designation as unclassifiable/
attainment. The end projection year is 10 years from the effective date 
of the attainment designation for the 1997 ozone NAAQS, which for El 
Paso County was June 15, 2004. Therefore, the plan must demonstrate 
attainment through 2014. As discussed in section (a) Attainment 
Inventory above, Texas has identified the level of ozone-forming

[[Page 2390]]

emissions in El Paso County that was consistent with attainment of the 
NAAQS for ozone in 2002. Texas has projected VOC and NO<INF>X</INF> 
emissions for the years 2008 and 2014 in El Paso County and EPA finds 
that the future emissions levels in those years are expected to be 
below the emissions levels in 2002. Please see the TSD for more 
information on EPA's review and evaluation of the State's 
methodologies, modeling, inputs, etc., for developing the 2008 and 2014 
projected emissions inventories.
    This demonstration shows compliance and maintenance of the 1997 8-
hour ozone standard by assuring that current and future emissions of 
VOC and NO<INF>X</INF> remain at or below attainment or baseline EI of 
2002. The year 2002 was chosen as the baseline year because it is one 
of the most recent three years (i.e., 2002, 2003, and 2004) for which 
the El Paso area has clean air quality data for the 8-hour ozone 
standard. It includes future inventory projected years for 2008 and 
2014. The plan identifies an ``out year,'' at least 10 years after the 
effective date of classification. EPA finds that the future emissions 
levels in 2008 and 2014 are expected not to exceed the emissions levels 
in 2002.
    (c) Monitoring Network--The State of Texas has committed in its 
maintenance plan to continue operation of an appropriate ozone 
monitoring network and to work with EPA in compliance with 40 CFR part 
58 with regard to the continued adequacy of such a network, if 
additional monitoring is needed, and when monitoring can be 
discontinued.
    In El Paso County, there are six monitoring sites, each of which 
has monitored attainment with the 1997 ozone standard from 2002 through 
2007. The 1997 ozone NAAQS is 0.08 parts per million based on the 
three-year average of the fourth-highest daily maximum 8-hour average 
ozone concentration measured at each monitor within an area. The 1997 
ozone standard is considered to be attained at 84 parts per billion 
(ppb). The three most recent 8-hour ozone design values for El Paso 
County are 76 ppb for 2005, 78 ppb for 2006, and 79 ppb for 2007.
    (d) Contingency Plan--The section 110(a)(1) maintenance plan 
includes contingency provisions to correct promptly any violation of 
the 1997 ozone NAAQS that occurs. The contingency indicator is based 
upon monitoring data. The triggering mechanism for activation of 
contingency measures is a monitoring violation of the 1997 8-hour ozone 
standard. In the maintenance plan, if contingency measures are 
triggered, TCEQ is committing to implement the measures as 
expeditiously as practicable but no longer than 24 months following the 
trigger. Because the area can be influenced by transport from outside 
the area (e.g., emissions from Mexico), the State will notify the EPA 
if the violation was caused by actions outside TCEQ's jurisdiction.
    The following contingency measures are identified for 
implementation:
    <bullet> Vent gas control.
    <bullet> Control of emissions from degassing or cleaning of 
stationary, marine, and transport vehicles.
    <bullet> Control of emissions from petroleum dry cleaning systems.
    <bullet> Other measures deemed appropriate at the time because of 
advances in control technologies.
    These contingency measures and schedules for implementation satisfy 
EPA's long-standing guidance on the requirements of section 110(a)(1) 
of Continued Attainment. Based on the above, we find that the 
contingency measures provided in the State's El Paso 8-hour Ozone 
maintenance plan are sufficient and meet the requirements of section 
110(a)(1) of the CAA.
    (e) Verification of Continued Attainment--Texas commits to track 
the progress of the maintenance plan by continuing to periodically 
update the EI. It will compare the updated EIs against the projected 
2008 and 2014 EIs. In addition, Texas commits to verify the 8-hour 
ozone status through appropriate ambient air quality monitoring, and to 
quality assure air quality monitoring data according to federal 
requirements.

IV. What Preconstruction Permitting Program Applies in the Area?

    As discussed previously in Section II, although the monitoring data 
shows that the area is meeting both the 1-hour and 8-hour ozone 
standards, the State did not submit a request for redesignation of the 
area to attainment for the 1-hour ozone standard before EPA revoked 
this standard. Because the area was never redesignated to attainment 
for the 1-hour standard, the area must continue to meet the applicable 
1-hour ozone serious area measures. These mandatory measures include 
the serious nonattainment area NSR permitting program.
    40 CFR 51.905(a)(3) 8-Hour NAAQS Attainment/1-Hour NAAQS 
Nonattainment of EPA's Phase 1 implementation rule, however, provides 
that the State may request that the Nonattainment New Source Review 
program no longer apply in an area such as El Paso. If the State 
submits to EPA a request to remove the NNSR program from the El Paso 
Ozone SIP and replace it with the State's prevention of significant 
deterioration (PSD) SIP, a section 110(l) demonstration would need to 
be included with the request.
    If Texas chooses to submit such a request, the request must include 
all necessary supporting elements, e.g., a section 110(l) 
demonstration, any necessary regulatory revisions. Please note that the 
Texas PSD SIP requirements would apply in the El Paso ozone area only 
upon the effective date of an EPA action approving the removal from the 
El Paso ozone SIP of the NNSR SIP program.

V. Final Action

    Pursuant to section 110 of the Act, EPA is approving the 1997 8-
hour ozone maintenance plan for El Paso County. We have evaluated the 
State's submittal and have determined that it meets the applicable 
requirements of the Clean Air Act and EPA regulations, and is 
consistent with EPA policy.
    EPA is publishing this rule without prior proposal because we view 
this as a non-controversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if relevant adverse 
comments are received. This rule will be effective on March 16, 2009 
without further notice unless we receive adverse comment by February 
17, 2009. If we receive adverse comments, we will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. We will address all public comments in a 
subsequent final rule based on the proposed rule. We will not institute 
a second comment period on this action. Any parties interested in 
commenting must do so now. Please note that if we receive adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, we may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

VI. 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 and because this action will not have a significant, adverse 
effect on the supply, distribution, or use of energy, this action is 
also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That

[[Page 2391]]

Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). This action merely approves state law as meeting 
Federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing 
requirements under state law and does not impose any additional 
enforceable duty beyond that required by state law, it does not contain 
any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the 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. 
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Because this rule 
merely approves a state rule implementing a Federal standard, EPA lacks 
the discretionary authority to modify today's regulatory decision on 
the basis of environmental justice considerations.
    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. section 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. 
section 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 March 16, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Nitrogen dioxides, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: December 31, 2008.
Richard E. Greene,
Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

0
2. In Sec.  52.2270, the second table in paragraph (e) entitled ``EPA 
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the 
Texas SIP,'' is amended by adding an entry at the end of the table to 
read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                     Applicable           State
     Name of SIP provision          geographic or      submittal/       EPA approval date          Comments
                                 nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
El Paso County 1997 8-Hour       El Paso, TX.......         1/11/06  1/15/09 [Insert FR page
 Ozone Maintenance Plan.                                              number where document
                                                                      begins].
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.2275 is amended by adding a new paragraph (g) to read as 
follows:


Sec.  52.2275  Control strategy and regulations: Ozone.

* * * * *
    (g) Approval. The Texas Commission on Environmental Quality (TCEQ) 
submitted a 1997 8-hour ozone NAAQS maintenance plan for the area of El 
Paso County on January 20, 2006. The area is designated unclassifiable/
attainment for the 1997 8-hour ozone standard. EPA determined this 
request for El Paso County was complete on June 13, 2006. The 
maintenance plan meets the requirements of section 110(a)(1) of the 
Clean Air Act and is consistent with

[[Page 2392]]

EPA's maintenance plan guidance document dated May 20, 2005. The EPA 
therefore approved the 1997 8-hour ozone NAAQS maintenance plan for the 
area of El Paso County on January 15, 2009.

 [FR Doc. E9-708 Filed 1-14-09; 8:45 am]
BILLING CODE 6560-50-P


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