[Federal Register Volume 70, Number 186 (Tuesday, September 27, 2005)]
[Rules and Regulations]
[Pages 56374-56376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19257]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-126-1-7691; FRL-7974-7]


Approval and Promulgation of Implementation Plans; Texas; 
Transportation Control Measures in the Dallas/Fort Worth Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving revisions to the Texas Ozone State 
Implementation Plan (SIP). This approval incorporates the 
Transportation Control Measures, submitted by the Governor of Texas on 
April 25, 2000 (as substituted by the Texas Commission on Environmental 
Quality on January 14, 2004), into the SIP for the Dallas/Fort Worth 
Ozone Nonattainment Area. The inclusion of Transportation Control 
Measures in the SIP fulfills one requirement found under Section 
182(c)(5) of the Federal Clean Air Act which provides that serious 
ozone nonattainment areas incorporate such measures into the state air 
quality plan. This action also fulfills of EPA's obligations under a 
Federal district court Consent Decree to act on these measures (70 FR 
32326).

DATES: This rule is effective on October 27, 2005.

ADDRESSES: Copies of the documents relevant to this action are in the 
official file which is available at the Air Planning Section (6PD-L), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202. 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.
    Copies of any State submittals are 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: Peggy Wade, Air Planning Section (6PD-
L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 
700, Dallas, Texas 75202, telephone (214) 665-7247; fax number (214) 
665-7263; e-mail address <a href="/cdn-cgi/l/email-protection#3e695f5a5b106e5b5959477e5b4e5f10595148"><span class="__cf_email__" data-cfemail="94c3f5f0f1bac4f1f3f3edd4f1e4f5baf3fbe2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 
    Throughout this document ``we,'' ``us,'' and ``our'' refers to EPA.

Outline

I. What Action Is EPA Taking?
II. What is the Background for This Action?
III. What Comments Were Received During the Public Comment Period?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    The EPA is approving the Transportation Control Measures (TCM) for 
the Dallas-Fort Worth 1-hour ozone nonattainment area (i.e., Collin, 
Dallas, Denton and Tarrant counties) submitted by Texas on April 25, 
2000. In addition, we note that certain changes to the original TCMs 
occurred as they were substituted in January 2004 in accordance with 
the Texas TCM substitution rule ( 30 TAC 114.270; see 67 FR 72379) and 
the EPA guidance document Policy Guidance on the Adoption and Use of 
SIP TCM Substitution Mechanisms in SIPs (EPA Office of Transportation 
and Air Quality, April 7, 2004). The Texas TCM substitution rule 
provides a mechanism in Texas to allow an area to substitute TCMs 
without the requirement of a SIP revision.

II. What Is the Background for This Action?

    A SIP revision for the Dallas--Fort Worth (DFW) 1-hour ozone 
nonattainment area was submitted to EPA by the State of Texas on April 
25, 2000. This SIP revision contained many control measures designed to 
improve the air quality in the DFW area. EPA has since approved, in 
separate Federal Register notices, a number of aspects of this SIP 
submittal. EPA proposed approval of the TCMs in this SIP, which are 
located in Appendix G, on January 18, 2001 (66 FR 4756). Our proposed 
approval of these original TCMs did not remove or revise any previously 
approved TCMs in the SIP. The total emission reductions creditable to 
the TCMs contained in this appendix are 4.73 tons per day (tpd) of 
nitrogen oxide (NO<INF>X</INF>) emissions and 2.95 tpd of volatile 
organic compounds (VOC) emissions in the 4-county nonattainment area. 
These TCMs are scheduled to be implemented no later than July, 2007. 
These TCMs strengthen the SIP and comply with the requirements of 
section 110(l) of the Clean Air Act. Specific details on these TCMs, 
and the amount of reductions attributable to each measure, are 
available in the Technical Support Document associated with this 
action.
    The EPA transportation conformity regulations define TCMs as any 
measure specifically identified and committed to in the SIP that is 
either one of the types listed in the Clean Air Act (CAA) at Section 
108(f)(1)(A), or any other measure with the purpose of reducing 
emissions or concentrations of air pollutants from transportation 
sources by reducing vehicle use or changing traffic flow or congestion 
conditions. According to the transportation conformity regulations, 
Metropolitan Planning Organizations (MPO), such as the North Central 
Texas Council of Governments (NCTCOG), must demonstrate timely 
implementation of TCMs by incorporation into the area's Metropolitan 
Transportation Plan (MTP) and Transportation Improvement Program (TIP) 
with appropriate funding dedicated to each TCM (40 CFR 93.113).
    In some cases, the MPO might find itself unable to demonstrate that 
TCMs are meeting the timely implementation criteria because obstacles 
to

[[Page 56375]]

implementation are impossible to overcome. In the August 15, 1997 
transportation conformity rule (62 FR 43779, see p. 43810), EPA 
committed to issuing guidance on how an area may substitute TCMs 
without the requirement for a SIP revision. EPA believes that such a 
substitution mechanism is possible if states explicitly incorporate 
such a policy containing replicable procedures into the SIP and we have 
since issued guidance to that effect (Policy Guidance on the Adoption 
and Use of SIP TCM Substitution Mechanisms in SIPs, EPA Office of 
Transportation and Air Quality, April 7, 2004). The State of Texas has 
developed a TCM substitution policy (30 TAC 114.270) and submitted it 
to EPA as a SIP revision on May 17, 2000. EPA approved this policy as a 
revision to the Texas SIP on December 5, 2002 (67 FR 72379). Among the 
requirements of this policy are that the substituted measures provide 
equal or greater emission reductions than those being eliminated. It 
also requires that the substituted measures, in accordance with section 
110(l) of the Clean Air Act, do not interfere with any applicable 
requirement for reasonable further progress or timely attainment of any 
NAAQS. The policy creates a replicable process whereby a TCM working 
group recommends potential substitutions to TCEQ and, following a 
public hearing and EPA review and concurrence, TCEQ approves the 
substitute TCMs.
    Pursuant to 30 TAC 114.270, on September 19, 2003, the NCTCOG 
convened an interagency working group of the transportation partners to 
review proposed TCMs to be used as substitute measures for certain TCMs 
contained in Appendix G of the April 2000 SIP which were no longer 
feasible to implement. Substitution of TCMs was needed because many of 
the original TCMs were impossible to implement due to design concept, 
scope or funding issues, or were inadvertently given double-credit in 
the original SIP (e.g., one measure was counted as a reduction in two 
separate categories), or the scheduled implementation date had slipped 
beyond the July 2007 commitment in the SIP. By letter dated November 
20, 2003, after appropriate public notice and hearing, EPA concurred on 
the substituted measures and they were subsequently adopted by the TCEQ 
on January 14, 2004. The substituted measures fall into the categories 
of intersection improvements, bicycle and pedestrian projects, high-
occupancy-vehicle facilities, rail, grade separations, park-and-ride 
facilities, and van pools. As a whole, they provide additional emission 
reductions of 59.4 pounds-per-day of NO<INF>X</INF> and 372.8 pounds-
per-day of VOC as compared to the original TCMs.

III. What Comments Were Received During the Public Comment Period?

    EPA proposed approval of this SIP, including the TCMs and other 
measures, on January 18, 2001. The comment period closed on March 19, 
2001, and we did not receive any comments on the original TCMs included 
in the SIP. The TCEQ held another comment period culminating in a 
public hearing regarding the appropriateness of the proposed measures 
to be used as TCM substitutions from September 24, 2003, to October 29, 
2003. No comments were received.

IV. Final Action

    The EPA is approving the TCMs found in the SIP for the Dallas-Fort 
Worth 1-hour ozone nonattainment area submitted by Texas on April 25, 
2000. These TCMs were substituted in January, 2004, in accordance with 
the Texas TCM substitution rule.

V. Statutory and Executive Order Reviews

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.'' This rule is not a ``significant energy action'' 
as defined in Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355 (May 22, 2001)), because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. This 
action merely approves state law as meeting Federal requirements and 
imposes no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act.
    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997). EPA interprets Executive Order 13045 as 
applying only to those regulatory actions that are based on health or 
safety risks, such that the analysis required under section 5-501 of 
the Order has the potential to influence the regulation. This rule is 
not subject to Executive Order 13045 because it approves a state 
program.
    In reviewing SIP submissions under the National Technology Transfer 
and Advancement Act of 1995 (15 U.S.C 272 note), EPA's role is to 
approve state choices, provided that they meet the criteria of the 
Clean Air Act. In this context, in the absence of a prior existing 
requirement for the State to use voluntary consensus standards (VCS), 
EPA has no authority to disapprove a SIP submission for failure to use 
VCS. It would thus be inconsistent with applicable law for EPA, when it 
reviews a SIP submission, to use VCS in place of a SIP submission that 
otherwise satisfies the provisions of the Clean Air Act. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 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 sec., 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

[[Page 56376]]

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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 28, 2005. 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxides, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: September 19, 2005.
Lawrence E. Starfield,
Acting 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 one new entry to 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
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                                         Applicable           State
       Name of SIP provision           geographic or       submittal/       EPA approval date        Comments
                                     nonattainment area  effective date
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                                                  * * * * * * *
Dallas--Fort Worth SIP, Appendix    Dallas/Fort Worth        01/14/2004  09/27/2005 [Insert FR
 G; Transportation Control           Ozone                                page number where
 Measures in the Dallas/Fort Worth   Nonattainment Area.                  document begins].
 Ozone Nonattainment Area.
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[FR Doc. 05-19257 Filed 9-26-05; 8:45 am]
BILLING CODE 6560-50-P


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