Federal Register / Vol. 70, No. 193 / Thursday, October 6, 2005 / Rules and Regulations 58325 

* * * * * 

[FR Doc. 05–20005 Filed 10–5–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R06–OAR–2005–TX–0020; FRL–7982–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; Texas; 

Texas Low-Emission Diesel Fuel 

Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a State 

Implementation Plan (SIP) revision 

submitted by the State of Texas making 

changes to the Texas Low-Emission 

Diesel (TXLED) Fuel program. With one 

exception, the changes are either 

administrative in nature, clarify existing 

provisions, add more specific reporting 

and recordkeeping requirements, or 

update references. These changes meet 

section 110(l) of the Federal Clean Air 

Act (the Act) because they improve the 

quality of the SIP and make it more 

enforceable. 

The more substantive change is the 

repeal of the state sulfur standard. This 

repeal being approved does not change 

the ultimate requirements regarding the 

reductions to be achieved because Texas 

did not rely upon the sulfur standard 

when EPA originally approved the 

program as part of the Houston ozone 

attainment demonstration SIP. Also, 

there are no sulfur dioxide (SO2) or 

particulate matter (PM) nonattainment 

areas in the affected area and no 

monitored violations. As a result, in 

accordance with section 110(l) of the 

Act, this removal will not interfere with 

attainment of the National Ambient Air 

Quality Standards (NAAQS), Rate of 

Progress, reasonable further progress or 

any other applicable requirement of the 

Act. Under section 553(d)(1) of the 

Administrative Procedure Act, EPA is 

making this action effective upon 

publication because it relieves a 

restriction. 

DATES: This rule is effective on October 

6, 2005. 

ADDRESSES: EPA has established a 

docket for this action under Regional 

Material in EDocket (RME) Docket ID 

No. R06–OAR–2005–TX–0020. All 

documents in the docket are listed in 

the Regional Material in EDocket (RME) 

index at http://docket.epa.gov/rmepub/, 

once in the system, select ‘‘quick 

search,’’ then key in the appropriate 

RME Docket identification number. 

Although listed in the index, some 

information is not publicly available, 

i.e., 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 in RME 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 

Quailty, Office of Air Quality, 12124 

Park 35 Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: 

Sandra Rennie, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–7367; fax number 

214–665–7263; e-mail address 

rennie.sandra@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

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

the 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, August 10, 

2005, to September 9, 2005? 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What Action Is EPA Taking? 

Today we are approving revisions to 

the TXLED rule submitted to EPA for 

approval as a SIP revision on March 23, 

2005, except two portions on which we 

are taking no action and one portion for 

which we already took action on April 

6, 2005. The Executive Director of the 

TCEQ submitted a letter to EPA on July 

5, 2005, requesting that we not act on 

certain portions of the rule revision as 

it was submitted on March 23, 2005. We 

are approving revisions of those aspects 

of the rule on which the TCEQ has not 

requested that EPA postpone action. 

II. What Is the Background for This 

Action? 

We approved the original TXLED rule 

on November 14, 2001, (66 FR 57196) as 

part of the Houston-Galveston 

Attainment Demonstration SIP. On 

December 15, 2004, the Texas 

Commission on Environmental Quality 

(TCEQ) Commissioners proposed to 

revise the TXLED rule and adopted the 

rule changes on March 9, 2005. The 

TCEQ submitted the TXLED rule 

changes on March 23, 2005 to EPA for 

approval into the SIP. We approved the 

compliance date rule changes, 30 TAC 

114. 319, of the March 23, 2005 SIP 

revision for TXLED on April 6, 2005 (70 

FR 17321). This was done under parallel 

processing at the request of the State. 

The compliance date was changed from 

April 1, 2005, to a phased schedule of 

implementation starting October 1, 

2005, until January 1, 2006. On August 

10, 2005 (70 FR 46448), we proposed 

approval of the remaining portions of 

the March 23, 2005, SIP revision 

submittal—30 TAC 114.6 and 114.312, 

114.314–114.316, 114.318, and 

114.319—except Approved Test 

Methods in section 114.315(b) and 

Alternative V in section 

114.315(c)(4)(C)(ii)(V). The State 

requested that we take no action on 

these two portions of the SIP revision 

submittal. Please see the proposal notice 

and its associated Technical Support 

Document for more information. 

Changes to the rule are to definitions, 

low emission diesel standards, 

registration of producers and importers, 

approved test methods, monitoring, 

reporting and recordkeeping 

requirements, testing and approval 

requirements for alternative fuel 

formulation, and alternative emission 

reduction plans. Except the removal of 

the sulfur standard, the rule changes 

either are administrative in nature, 

clarify existing provisions, update 

existing references, add more stringent 

reporting and recordkeeping 

requirements, or improve the new diesel 

formulation testing requirements. These 

types of changes improve the existing 

SIP and make it more enforceable. 

The sulfur standard was removed 

because the federal ultra-low sulfur 

diesel standards are now promulgated 

and will reduce sulfur in on-highway 

diesel in 2006 and in non-road 

equipment starting in 2007. Reducing 

58326 Federal Register / Vol. 70, No. 193 / Thursday, October 6, 2005 / Rules and Regulations 

sulfur emissions does not directly 

reduce NOX and VOC emissions that are 

precursors to ozone formation. 

Consequently, there will be no increase 

in ozone concentration levels in the 

eastern and central parts of Texas from 

the period of the previous state sulfur 

standard to the federal sulfur standard. 

Moreover, none of the ozone attainment 

demonstration SIPs relied upon the 

sulfur emission reductions from the 

TXLED program. 

Reducing sulfur emissions does 

reduce sulfur dioxides and particulate 

matter emissions but there are no SO2

and PM nonattainment areas in the 

eastern and central parts of Texas. There 

also are no monitored violations of these 

three standards in the affected areas and 

no upward trends. Moreover, there is 

only a three-month difference for 

implementation of the on-road sulfur 

standard. The attainment areas are in 

attainment of these standards before the 

new Federal sulfur standard dates. 

III. What Comments Were Received 

During the Public Comment Period, 

August 10, 2005, to September 9, 2005? 

Comments were received from ExxonMobil Refining and Supply Company 

and from Oryxe Energy International, 

Inc. 

Exxon-Mobil commented in support 

of the approval of the rule. We 

appreciate the support. 

Oryxe Energy had the following 

comments: 

1. Testing of Alternative Diesel Fuel 

Formulations 

1.1 Comment: Oryxe believes that 

the use of the most up-to-date ASTM or 

EPA methods is not itself sufficient to 

ensure the integrity of the program for 

the protection of the consumer and 

assurance of achieving clean air goals. 

Test protocols and laboratories used to 

run the tests on alternative diesel fuel 

formulations must be assured of the 

highest order in order [for the test 

results] to qualify for SIP credit. 

Alternately, the same assurance could 

be accomplished by EPA recognition of 

laboratory capabilities, or oversight by 

another appropriate governmental 

entity. 

1.1 Response: We agree in principle 

that the use of ASTM or EPA methods 

does not in itself provide all assurances 

with regard to data produced using 

them. We also agree that how a 

laboratory operates with regard to 

quality assurance and quality control 

procedures is of critical importance in 

generating data that can be viewed with 

confidence. In the context of this rule, 

as part of a replicable procedure, we 

believe that ASTM or EPA methods are 

trusted methods that will, with the 

proper application, produce data of high 

quality. 

1.2 Comment: The commenter 

recommends that testing be done in a 

process open to public review and 

comment, and includes a list of testing 

elements they believe are most critical 

to effective review and comment. These 

elements include engine selection, fuel 

selection, additive information, 

emission testing laboratory selection, 

and emission testing protocol. 

1.2 Response: See our response to 

4.2 that addresses public review and 

comment. 

Regarding the list, many of the 

specific points listed under the general 

categories are already covered in 30 

TAC 114.315. The only general category 

not included in the TXLED rule is 

emissions testing laboratory selection. 

Using guidance provided by the State, a 

company should use good judgement in 

selecting a laboratory for testing. EPA 

does not formally recognize, certify, or 

qualify laboratories. Currently EPA may 

recognize data produced by some 

laboratories with more confidence than 

data from others because of our past 

experience with those laboratories. EPA, 

along with Texas, is asking for quality 

assurance/quality control (QA/QC) 

plans from laboratories with which we 

have little experience that are planning 

to test under 30 TAC 114.315. Good QA/ 

QC plans will help ensure the validity 

of the data and preserve the integrity of 

the program. 

1.3 Comment: Oryxe recommended 

language changes to the Texas 

Administrative Code at 30 TAC 

§ 114.315 in five places. 

1.3 Response: We did not propose 

changes to the Texas rule, therefore new 

language changes are not the subject of 

this rulemaking. Oryxe should contact 

Texas during rule development to voice 

its concerns regarding regulatory 

language. We cannot change the content 

of State regulations in our approval 

actions. 

2. Monitoring Requirements 

2.1 Comment: Oryxe suggests adding 

language at the end of 30 TAC 

§ 114.316(e) to ensure that the benefits 

from Nox reductions are verified. 

2.1 Response: We cannot change the 

content of State regulations in our 

approval actions. A process for 

verification of fuel additive technologies 

exists in EPA’s Environmental 

Technology Verification (ETV) program 

in cooperation with the Voluntary 

Diesel Retrofit Program. With these 

programs in place, protocols and 

processes already exist for verifying a 

product’s emission reduction 

capabilities, and there is no need for 

Texas to duplicate such a program at the 

expense of the State and Federal 

government. The ETV/VDRP process is 

more thorough than the comparative 

testing proposed by the commenter. The 

ETV/VDRP processes provide an even 

greater degree of assurance to the 

consumer and the general public. 

3. Proposed Revisions to Alternate 

Emission Reduction Plans 

3.1 Comment: The commenter 

supports the revision to the Alternate 

Emission Reduction Plans language at 

30 TAC § 114.318. 

3.1 Response: We appreciate the 

support. 

4. EPA Approval of Alternative Diesel 

Fuel Formulations 

4.1 Comment: Oryxe raises concerns 

about the removal of EPA from 30 TAC 

§ 114.312(f). They assert that this 

removal would have no effect on EPA’s 

continuing oversight of the TXLED 

program. The commenter acknowledges 

that this is not an approvable provision. 

4.1 Response: EPA continues to have 

oversight of the TXLED alternative fuel 

formulation testing by the addition of 

EPA consultation in § 114.315(c)(6). 

This consultation can include the 

review of test protocols, quality 

assurance/quality control plans, as well 

as test data. EPA has been consulting 

with the State, test laboratories, and 

vendors regarding test protocols, QA/AC 

plans, and test data. As the commenter 

notes, Texas has agreed to remove this 

Executive Director discretion in a future 

rulemaking. 

4.2 Comment: Oryxe suggests that 

removal of EPA approval makes it 

absolutely essential that testing under 

the alternative formulations process be 

open and subject to public notice and 

comment. 

4.2 Response: EPA disagrees with 

this comment. The approved test 

method laid out in 30 TAC § 114.315 is 

a replicable procedure that was 

originally approved by EPA in 

November 2001 and now is revised after 

being subject to public notice and 

comment by the State. We believe that 

a replicable procedure can be subject to 

public notice and comment when it is 

being adopted and approved. The 

concept is to avoid treating each 

alternative fuel formulation and its 

testing process as a separate SIP revision 

by establishing a generic testing 

protocol that is subject to notice and 

comment, and approving that generic 

protocol. The State has the regulatory 

process establishing the test procedure. 

In advance of setting a test protocol for 

a new product, the State will consult 

Federal Register / Vol. 70, No. 193 / Thursday, October 6, 2005 / Rules and Regulations 58327 

with EPA in case it is evident that slight 

deviations from the established test 

methods may be warranted due to the 

nature of the product being tested. 

IV. Final Action 

EPA is granting approval of the 

revisions to the TXLED rule as 

submitted March 23, 2005, with the 

following exceptions: (1) The 

compliance date changes that were 

already approved on April 6, 2005; (2) 

revisions to Approved Test Methods in 

§§ 114.315(b) and 114.315(c)(4)(C)(ii)(V) 

that the State specifically requested we 

not process at this time as specified 

above. None of the revisions being 

proposed for approval change the 

ultimate requirements regarding the 

reductions to be achieved. There will be 

no increase in ozone concentration 

levels because of approving the 

revisions. The affected 110 counties are 

in attainment of the SO2 and PM 

standards, are not monitoring 

exceedances, are not experiencing any 

upward trends, and are in attainment 

before the date for the federal sulfur 

standard. As a result and in accordance 

with section 110(l) of the Act, 42 U.S.C. 

section 7410(l), these revisions will not 

interfere with attainment of the National 

Ambient Air Quality Standards 

(NAAQS), Rate of Progress, reasonable 

further progress, or any other applicable 

requirement of the Clean Air Act. 

Section 553(d) of the Administrative 

Procedure Act generally provides that 

rules may not take effect earlier than 30 

days after they are published in the 

Federal Register. However, section 

553(d)(1) allows a rule to take effect 

earlier if it relieves a restriction. We are 

making this action effective upon 

publication because it relieves a 

restriction. 

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, 

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), 

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 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 (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 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 December 5, 

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, Carbon monoxide, 

Hydrocarbons, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen oxides, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Dated: September 28, 2005. 

Lawrence E. Starfield, 

Acting 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 by revising the 

entries for Sections 114.6 under Chapter 

114, Subchapter A, and 114.312, 

114.314, 114.315, 114.316, and 114.318 

under Chapter 114, Subchapter H, 

Division 2, to read as follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

58328 Federal Register / Vol. 70, No. 193 / Thursday, October 6, 2005 / Rules and Regulations 

EPA APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

* * * * * * * 

Chapter 114 (Reg 4)—Control of Air Pollution from Motor Vehicles 

Subchapter A—Definitions 

* * * * * * * 

Section 114.6 .......................... Low Emission Fuel Definitions 03/09/05 10/6/05. [Insert FR page 

number where document 

begins].

* * * * * * * 

Subchapter H—Low Emission Fuels 

* * * * * * * 

Division 2—Low Emission Diesel 

Section 114.312 ...................... Low Emission Diesel Standards.03/09/05 10/6/05. [Insert FR page 

number where document 

begins].

* * * * * * * 

Section 114.314 ...................... Registration of Diesel Producers and Importers.03/09/05 10/6/05. [Insert FR page 

number where document 

begins].

Section 114.315 ...................... Approved Test Methods ........ 03/09/05 10/6/05. [Insert FR page 

number where document 

begins].

EPA took no action on Section 114.315(b) and section 

114.315(c)(4) (C)(ii)(V). 

Section 114.316 ...................... Monitoring, Recordkeeping, 

and Reporting Requirements.

03/09/05 10/6/05. [Insert FR page 

number where document 

begins].

* * * * * * * 

Section 114.318 ...................... Alternative Emission Reduction Plan.03/09/05 10/6/05. [Insert FR page 

number where document 

begins].

* * * * * * * 

[FR Doc. 05–20108 Filed 10–5–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 62 

[R01–OAR–2005–MA–0002; FRL–7981–5] 

Approval and Promulgation of State 

Plans For Designated Facilities and 

Pollutants: Massachusetts; Negative 

Declaration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is approving the Sections 

111(d) and 129 negative declaration 

submitted by the Massachusetts 

Department of Environmental Protection 

(MADEP) on August 23, 2005. This 

negative declaration adequately certifies 

that there are no existing hospital/ 

medical/infectious waste incinerators 

(HMIWIs) located within the boundaries 

of the Commonwealth of Massachusetts. 

EPA publishes regulations under 

Sections 111(d) and 129 of the Clean Air 

Act requiring states to submit control 

plans to EPA. These state control plans 

show how states intend to control the 

emissions of designated pollutants from 

designated facilities (e.g., HMIWIs). The 

Commonwealth of Massachusetts 

submitted this negative declaration in 

lieu of a state control plan. 

DATES: This direct final rule is effective 

on December 5, 2005 without further 

notice unless EPA receives significant 

adverse comment by November 7, 2005. 

If EPA receives adverse comment, we 

will publish a timely withdrawal of the 

direct final rule in the Federal Register 

and inform the public that the rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Regional Material in 

EDocket (RME) ID Number R01–OAR–

2005–MA–0002 by one of the following 

methods: 

A. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Agency Web site: http:// 

docket.epa.gov/rmepub/ Regional 

Material in EDocket (RME), EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Once in the 

system, select ‘‘quick search,’’ then key 

in the appropriate RME Docket 

identification number. Follow the onVerDate Aug<31>2005 16:10 Oct 05, 2005 Jkt 208002 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\06OCR1.SGM 06OCR1