12442 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

115.316(b)(2)(C), 115.316(b)(3),

115.316(b)(4), 115.319(a)(1),

115.319(a)(2), 115.319(b), 115.421(a),

115.421(a)(12), 115.421(a)(12)(A),

115.421(a)(12)(A)(i),

115.421(a)(12)(A)(ii), 115.421(a)(12)(B),

115.425(a)(4)(C)(ii), 115.426 title

(Monitoring and Recordkeeping

Requirements), 115.426(a)(2),

115.426(a)(2)(A)(i), 115.426(b)(2),

115.426(b)(2)(i), 115.427(a)(5)(C),

115.427(a)(6), 115.427(a)(6)(A) through

115.427(a)(6)(C), 115.427(a)(7),

115.429(d), 115.436 title (Monitoring

and Recordkeeping Requirements),

115.436(a)(3), 115.436(a)(3)(C),

115.436(b), 115.436(b)(3),

115.436(b)(3)(B) through

115.436(b)(3)(D), 115.439(d), 115.536

title (Monitoring and Recordkeeping

Requirements), 115.536(a)(1),

115.536(a)(2), 115.536(a)(2)(A),

115.536(a)(2)(A)(ii), 115.536(a)(5),

115.536(b)(1), 115.536(b)(2),

115.536(b)(2)(A), 115.536(b)(2)(A)(ii)

through 115.536(b)(2)(A)(iv), 115.539(c).

* * * * *

[FR Doc. 95–5344 Filed 3–6–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[TX–21–1–6634; FRL–5134–6]

Clean Air Act Approval and

Promulgation of Title I, Section

182(d)(1)(B), Employee Commute

Options/Employer Trip Reduction

Program for Texas

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: In this action, the EPA is

approving the State Implementation

Plan (SIP) revision submitted by the

State of Texas for the purpose of

establishing an Employee Commute

Options (ECO) program (also known as

the Employer Trip Reduction (ETR)

program). Pursuant to Section

182(d)(1)(B) of the Clean Air Act (CAA),

as amended in 1990, the SIP was

submitted by Texas to satisfy the

statutory mandate that an ETR Program

be established for employers with 100 or

more employees, such that compliance

plans developed by such employers are

designed to convincingly demonstrate

an increase in the average passenger

occupancy (APO) of their employees

who commute to work during the peak

period, by no less than 25 percent above

the average vehicle occupancy (AVO) of

the nonattainment area.

EFFECTIVE DATE: This action will be

effective on April 6, 1995.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the following

locations. The interested persons

wanting to examine these documents

should make an appointment with the

appropriate office at least 24 hours

before the visiting day.

U.S. Environmental Protection Agency,

Region 6, Air Programs Branch (6T–

A), 1445 Ross Avenue, Dallas, Texas

75202–2733.

The Air and Radiation Docket and

Information Center, U.S.

Environmental Protection Agency,

401 M Street, SW., Washington, DC

20460.

Texas Natural Resource Conservation

Commission, 12124 Park 35 Circle,

Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr.

Hal D. Brown, Planning Section (6T–

AP), Air Programs Branch, USEPA

Region 6, 1445 Ross Avenue, Dallas,

Texas 75202–2733, telephone (214)

665–7248.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of

the CAA will require employers with

100 or more employees in the HoustonGalveston ozone nonattainment area to

participate in a trip reduction program.

Section 182(d)(1)(B) requires that

employers submit ETR compliance

plans to the State two years after the SIP

is submitted to the EPA. These

compliance plans must ‘‘convincingly

demonstrate’’ that within four years

after the SIP is submitted, the employer

will achieve an increase in the APO of

its employees who commute to work

during the peak period by not less than

25 percent above the AVO of the

nonattainment area. Where there are

important differences in terms of

commute patterns, land use, or AVO,

the States may establish different zones

within the nonattainment area for

purposes of calculation of the AVO.

For an approvable ETR SIP, the State

submittal must contain each of the

following program elements: (1) The

AVO for each nonattainment area or for

each zone if the area is divided into

zones; (2) the target APO which is no

less than 25 percent above the AVO(s);

(3) an ETR program that includes a

process for compliance demonstration;

and, (4) enforcement procedures to

ensure submission and implementation

of compliance plans by subject

employers. The EPA issued guidance on

December 17, 1992, interpreting various

aspects of the statutory requirements

[Employee Commute Options Guidance,

December 1992].

On November 13, 1992, the EPA

received from the Governor of Texas a

SIP revision to incorporate the ETR

regulation which was adopted by the

State on October 16, 1992. On October

18, 1993, the EPA proposed approval of

the Texas ETR SIP in the Federal

Register (FR) because it meets the

requirements of section 182(d)(1)(B) of

the CAA and the criteria listed above

(see 58 FR 53693). The proposed

rulemaking action provides a detailed

discussion of the EPA’s rationale for

proposing approval of the State’s ETR

SIP, and should be referred to. The EPA

requested public comments on all

aspects of the proposal. A summary of

the comments received and the EPA’s

response to them are provided below. A

more detailed response to comments is

available from the EPA Region 6 office.

II. Response to Comments

The EPA received three comment

letters, one from the State of Texas

which supported the EPA’s action, one

from a local citizen which raised

concerns with the Texas program, and

one from a local environmental group

which objected to EPA’s proposed

approval.

Comment 1—The Texas Natural

Resource Conservation Commission

(TNRCC) supported the EPA’s proposed

approval of the Texas ETR SIP. In

addition, the State pointed out a

correction to our notice. On page 53695,

part D under ‘‘Enforcement

Procedures,’’ the EPA states that

violators may be subject to up to

$10,000 in administrative penalties and

up to $25,000 in civil penalties. The

State commented that this provision

should instead read, ‘‘may subject the

violator up to $10,000 in administrative

penalties or up to $25,000 in civil

penalties per violation.’’

EPA Response—The EPA agrees with

the State’s comment. Violators may be

subject to either administrative or civil

penalties for a given violation. The

penalty provisions of the Texas program

are approvable.

Comment 2—A local citizen and the

environmental group commented that

the emphasis of the ETR program

should be on reducing work-related

trips. In addition, the environmental

group commented that it would be

illegal to also emphasize reductions in

vehicle miles travelled (VMT).

EPA Response—The EPA agrees that

the intent of the section 182(d)(1)(B) of

the CAA is to reduce work-related

commute trips. We feel that Texas’

program will accomplish this goal. The

ETR regulation subjects employers to a
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12443

violation for not achieving the target

APO. The SIP clearly provides for

sufficient penalties to deter noncompliance. In addition to this

‘‘penalty-based’’ approach, the State

regulation also requires employers to

sufficiently plan to ensure that they

meet their target APO. Employers are

required to register with the State,

submit ETR compliance plans,

implement their plan, and monitor their

progress towards meeting their target

APO.

The EPA disagrees that it would be

illegal to also emphasize reductions in

VMT. Section 182(d)(1)(B) of the CAA

states that States ‘‘shall submit a

revision requiring employers in such

area to implement programs to reduce

work-related vehicle trips and miles

traveled by employees.’’ It is clear that

the intent of this provision is to

accomplish a reduction in both trips

and VMT associated with commuting.

Therefore, we do not believe it would be

illegal to incorporate reductions in VMT

as part of the ETR program, as long as

other provisions of section 182(d)(1)(B)

are met. While Texas currently does not

include VMT considerations in its ETR

program, the EPA believes that the State

is not precluded from subsequently

revising its ETR rule to allow for VMT

considerations.

Comment 3—One local citizen and

the environmental group objected to

ETR trading or banking.

EPA Response—The current State

ETR regulation does not allow for ETR

trading although the EPA’s Employee

Commute Options Guidance, issued in

December 1992, does allow employers

in the same nonattainment area to

aggregate APO credits through

averaging, banking and trading (see page

16 of that guidance). We understand

that the State may consider establishing

a trading program, which would require

a subsequent SIP revision.

The current State ETR rule does allow

companies to bank ETR credits for only

one year. As explained in the EPA’s

ECO Guidance (see page 19), the EPA

believes that in terms of public health

benefits, early reductions achieved

through banking of APO credits offset

later application of banked credits

because as the fleet turns over and

cleaner fuels are employed, each vehicle

trip generates less emissions. The

TNRCC restricts the use of banked

credits to one year. The EPA believes

that the use of the banked APO credits

complies with the intent of the statute

and will not materially affect attainment

by the required date of 2007.

Comment 4—The environmental

group commented that the term ‘‘regular

basis’’ must be defined in the definition

of ‘‘carpool,’’ otherwise a loophole will

be created.

EPA Response—The EPA disagrees

with this comment. The term ‘‘carpool’’

is defined in the SIP narrative to help

clarify what types of trip reduction

measures may be effective in achieving

compliance with the target APO. The

ETR regulation, however, does not

define the term ‘‘carpool.’’ The EPA

does not believe that a loophole will be

created by not defining ‘‘regular basis’’

in the definition of ‘‘carpool’’ in the SIP.

Compliance with the target APO is not

determined by the use of carpools, but

rather through specific calculations of

actual occupancy based on travel

commute data collected through the

employee surveys.

Comment 5—The environmental

group commented that it is their

understanding that the definition of

employer would not allow different

companies located at one common

location to submit one ETR plan.

Instead, each company would have to

submit its own ETR plan.

EPA Response—The EPA agrees with

this comment, and believes that the

State regulation is unambiguous in

requiring different companies that

occupy a common worksite to submit

individual company plans.

Comment 6—The environmental

group commented that they believe

motorcycles should be included in the

definition of ‘‘single occupancy vehicle’’

(SOV).

EPA Response—The EPA agrees but

believes that the SIP narrative is

unambiguous in including motorcycles

as part of the definition for a SOV.

Comment 7—The environmental

group commented that the amount of

credit given for alternative trip

reduction strategies (e.g., alternative

fuels) must be included in the ETR SIP.

Currently, the SIP states that such credit

will be calculated in accordance with

procedures and formulas provided by

the TNRCC.

EPA Response—It is our

understanding that the State will not

grant credit for alternative trip reduction

strategies unless and until the protocols

for granting such credit are adopted into

the regulation. In addition, the EPA will

need to approve any credit for

alternative trip reduction strategies as

part of the SIP. We understand that the

State plans to revise the ETR SIP

through the full rulemaking process, to

incorporate appropriate credit for

various alternative trip reduction

strategies.

Comment 8—The environmental

group asked for clarification of the term

‘‘common control’’ as used in the

definition for ‘‘worksite.’’

EPA Response—In the definition of

‘‘worksite,’’ the State makes clear that

the term ‘‘common control’’ is further

defined under the definition of

‘‘employer.’’ We believe that the

definition found under ‘‘employer,’’ is

consistent with the EPA’s guidance and

is sufficiently clear as to what types of

organizations are intended.

Comment 9—The environmental

group objected to the use of two target

APOs for the rural and urbanized areas.

The group argued that all employers in

the nonattainment area should be

required to meet a 1.46 target APO,

rather than giving those in outlying

areas ‘‘a break.’’

EPA Response—Section 182(d)(1)(B)

of the CAA states that, ‘‘The guidance of

the Administrator may specify average

vehicle occupancy rates which vary for

locations within a nonattainment area

(suburban, center city, business district)

or among nonattainment areas reflecting

existing occupancy rates and the

availability of high occupancy modes.’’

The EPA believes that Congress

intended to provide States with the

flexibility to set different target APOs in

a nonattainment area based on varying

existing occupancy rates and the

availability of alternative transportation

modes.

In addition, as articulated in the

EPA’s ECO guidance (see page 16), the

statutory phrase ‘‘commuting trips

between home and the workplace’’ can

be interpreted to refer to the trips by any

employees in the area rather than only

the employees of a specific employer.

Although the rural areas are required to

meet a target that is less than 25 percent

above the AVO, the urbanized areas are

required to meet a target greater than 25

percent above the AVO. Therefore,

across the entire nonattainment area, the

State of Texas is complying with the 25

percent increase requirement. The

EPA’s guidance explicitly allows for

averaging and trading between

employers such that an employer who

did not achieve the target APO may still

be in compliance if it obtains sufficient

credit from another employer who

exceeded the target. The TNRCC’s two

target area program is an

institutionalized form of averaging

between employers.

Comment 10—The environmental

group argued that there was not

adequate public participation in the

development of the ETR regulation.

EPA Response—Section 110(a)(2) of

the CAA provides that each

implementation plan submitted by a

State must be adopted after reasonable
12444 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

1Also Section 172(c)(7) of the CAA requires that

plan provisions for nonattainment areas meet the

applicable provisions of Section 110(a)(2).

notice and public hearing.1 Section

110(l) of the CAA similarly provides

that each revision to an implementation

plan submitted by a State under the

CAA must be adopted by such State

after reasonable notice and public

hearing. 40 CFR 51.102 defines adequate

public notice and comment to include:

(1) Public notification of the proposed

SIP revision in a major newspaper in the

affected area; (2) a comment period of at

least 30 days; (3) public hearing; and (4)

State analysis and response to the

public comments. The TNRCC met these

requirements. Public notice on the

proposed ETR regulation was published

in the Houston ozone nonattainment

area on May 30, 1992, in the Houston

Chronicle, and on May 31, 1992, in the

Baytown Sun, in accordance with the

State of Texas’s public notice

requirements. Public notice was also

published in the Texas Register on June

5, 1992 (see 17 Texas Register (TexReg)

4067). The State held a public hearing

on the proposed regulations on June 30,

1992, and the comment period closed

on July 8, 1992. Following the public

hearing, the ETR regulation was adopted

by the State on October 16, 1992. The

publication of the final ETR regulation

in the Texas Register on November 27,

1992 (see 17 TexReg 8297), includes an

extensive analysis by the State of the

comments received during the public

comment period and the State’s

recommended action. The EPA therefore

disagrees with this comment.

Comment 11—This environmental

group argued that the term ‘‘approvable

ETR Plans’’ is not defined, and

recommended that the phrase ‘‘plans

that meet all ETR plan requirements

under the CAAA,’’ be used instead. The

group also stated that the term

‘‘convincingly demonstrate’’ must be

defined.

EPA Response—The term

‘‘approvable ETR plans’’ is clarified on

page 28 of the SIP narrative, which

states that the TNRCC ‘‘will review ETR

plans based on completeness and

accuracy of information requested.’’ We

do not believe that the phrase ‘‘plans

that meet all ETR plan requirements

under the CAAA’’ provides any

additional clarification because the CAA

only requires that plans ‘‘convincingly

demonstrate’’ prospective compliance.

As to a definition of ‘‘convincingly

demonstrate,’’ as described in more

detail in our proposed approval of the

Texas ETR SIP (see 58 FR 53694), the

EPA provided four options for States to

meet the requirement that plans

‘‘convincingly demonstrate’’ prospective

compliance. The TNRCC met this

requirement by selecting our fourth

option by imposing significant penalties

for not meeting the target APO.

Comment 12—The environmental

group challenged the adequacy of the

tracking and auditing procedures, and

the current implementation of the SIP.

EPA Response—The EPA disagrees

that the tracking and auditing

procedures contained in the SIP are

inadequate. Even though the EPA’s ECO

guidance did not require specific

tracking and auditing procedures, the

State’s ETR SIP narrative and regulation

address these provisions. The SIP and

the regulation specify numerous

recordkeeping and reporting

requirements for affected employers. For

example, § 114.21(g) of the regulation

requires employers to maintain

complete and accurate records for at

least two years, and details seven types

of information which must be included

as part of those records. Section

114.21(h) details the specific reports

that employers must submit to the

TNRCC. Section 8.c. of the SIP specifies

the State’s ETR quality assurance

procedures, which include auditing of

employee surveys, announced and

unannounced site visits, and auditing of

the required employer records. We

believe the TNRCC’s procedures

included in the SIP are fully adequate

to ensure proper implementation of the

ETR program.

As to the commenter’s concerns about

current implementation of the SIP, we

do not believe that the TNRCC has

fallen short of its responsibility to

implement the SIP. During 1994, the

TNRCC has increased the ETR staff,

both in its headquarters office in Austin,

and in its Regional office in Houston.

The TNRCC has implemented the

registration of affected employers,

initiated training programs, and

developed the necessary forms and

systems to implement the ETR employer

plans. The EPA believes that Texas’s

implementation of the ETR program to

date does not indicate that the EPA

should hesitate to approve the program.

Comment 13—The environmental

group argued that allowing employers to

demonstrate compliance with the target

APO up to two years after the date of

their plan submission deadline gave the

employers too much time.

EPA Response—The EPA disagrees

since the TNRCC regulation is fully

consistent with the time frames

specified in section 182(d)(1)(B) of the

CAA, which requires that employer

plans convincingly demonstrate

compliance within two years of plan

submittal.

Comment 14—The environmental

group argued that records should by

kept by affected employers for five

years, rather than only two years.

EPA Response—This comment was

also provided to the TNRCC during the

State’s public comment period. In

response, the TNRCC stated that they

believed two years of information

appears to be adequate to assess

compliance with the ETR requirements.

The EPA agrees with the State because

the primary driving force behind

compliance with the target APO in

Texas’s program is the fact that

substantial financial penalties may be

imposed on an employer for not meeting

the target APO.

Comment 15—The environmental

group commented that the SIP narrative

should state that ‘‘falsifying or failing to

maintain appropriate records will be

considered a violation of [TNRCC]

Regulation IV,’’ rather than ‘‘may be.’’

EPA Response—This comment was

submitted to the State during its public

comment period. The State responded

that it is understood that falsifying and

failing to maintain required records are

considered to be violations of the

regulation. The EPA agrees with the

State since section 114.21(g) of the ETR

regulation clearly establishes mandatory

requirements for all employers to

maintain complete and accurate records

for at least two years. In considering

whether to issue a notice of violation for

falsifying or failing to maintain records,

the State looks at all facts and evaluates

any possible mitigating circumstances

before committing State resources to

take an enforcement action. Therefore,

the language contained in the SIP

narrative is consistent with the State’s

enforcement discretion over when it is

appropriate for the State to commit

resources to initiate an enforcement

action.

Comment 16—This environmental

group argued that the SIP should not be

approved because it does not detail the

specific quality assurance procedures

that will be carried out by the State. The

group also commented that the SIP

should state that audits will be

conducted and site visits will be

conducted, rather than ‘‘may be.’’

EPA Response—Please see our

response to comments 12 and 15 above

with respect to quality assurance and

enforcement discretion.

Comment 17—The environmental

group argued that the certification of

training programs procedures and the

public information program must be

specified in the SIP. Also, the group

asked that ‘‘comprehensive training

course’’ be defined and that the training

should include a discussion of the
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations 12445

health, welfare effects, and costs due to

air pollution.

EPA Response—While the EPA agrees

that these items would be beneficial to

include in the SIP, we do not believe

that the integrity of the ETR program is

threatened by not including these items

since the TNRCC ETR SIP fully meets

the requirements of the CAA.

Comment 18—The environmental

group argued that the SIP narrative

should read, ‘‘failure to attain the

appropriate target APO will be

considered violations of [TNRCC]

Regulation IV,’’ rather than ‘‘may be.’’

EPA Response—Similar to our

response to comment 15, we believe that

section 114.21(j)(4) of the State’s ETR

regulation clearly establishes mandatory

requirements for all employers to

achieve final compliance with the target

APO no later than two years after the

applicable ETR plan submission

deadline. It is therefore understood that

not complying with this requirement

would be considered to be a violation of

the regulation. In considering whether

to issue a notice of violation for not

achieving the target, however, the State

looks at all facts and evaluates any

possible mitigating circumstances before

committing State resources to take an

enforcement action. Therefore, the

language contained in the SIP narrative

is consistent with the State’s

enforcement discretion over when it is

appropriate for the State to commit

resources to initiate an enforcement

action.

Comment 19—This environmental

group objected to the provision in the

SIP narrative that ‘‘[i]n formulating an

enforcement policy, the [TNRCC] may

consider any good faith effort made by

the employer to achieve compliance.’’

EPA Response—An enforcement

policy is developed to cover the

implementation and enforcement of a

rule, not just the enforcement of a

particular case. The policy would

discuss the appropriate enforcement

response that the State would take at

each level of violation and might also

discuss what and how much penalty, if

any, to assess. Any enforcement policy

of this type may always consider the

good faith efforts made to comply. In

addition, as discussed above, in

considering whether to issue a notice of

violation for not achieving the target,

the State looks at all facts and evaluates

any possible mitigating circumstances

before committing State resources to

take an enforcement action. For these

reasons, we believe the language

contained in the SIP narrative, is

consistent with the State’s enforcement

discretion over when it is appropriate

for the State to commit resources to

initiate an enforcement action.

Comment 20—This environmental

group commented that the methodology

to estimate the emission reductions

from the ETR program should be

included in the SIP.

EPA Response—The EPA disagrees

that the emission reduction estimates

must be included in this SIP submittal.

The estimates need to be included only

to the extent that the State takes credit

for the reductions to meet a Reasonable

Further Progress or attainment

demonstration requirement. In that case,

the emissions estimates would need to

be included in that SIP submittal.

III. Final Action

In this action, the EPA is approving

the ETR SIP revision adopted by the

State of Texas on October 16, 1992, and

submitted to the EPA on November 13,

1992. The State of Texas has submitted

a SIP revision implementing each of the

ETR program elements required by

section 182(d)(1)(B) of the CAA.

On February 23, 1994, the TNRCC

adopted revisions to the ETR regulation,

revising the compliance deadlines for

affected employers to submit the ETR

plans and comply with the target APO.

These revisions were submitted to the

EPA on March 9, 1994.

In this FR document, the EPA is

approving only the ETR SIP revision

which was submitted by the State of

Texas on November 13, 1992. The EPA

will act upon the subsequent ETR SIP

revision submitted by the State on

March 9, 1994, in a separate rulemaking

action in the near future.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to the SIP shall be

considered separately in light of specific

technical, economical, and

environmental factors and in relation to

relevant statutory and regulatory

requirements.

Regulatory Process

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., the EPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, the EPA may

certify that the rule will not have a

significant impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

SIP approvals under section 110 and

subchapter I, part D, of the CAA do not

create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP-approval does

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities affected.

Moreover, due to the nature of the

Federal-State relationship under the

CAA, preparation of a regulatory

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of State action. The CAA

forbids the EPA to base its actions

concerning SIPs on such grounds

(Union Electric Co. v. U.S. E.P.A., 427

U.S. 246, 256–66 (S. Ct. 1976); 42 U.S.C.

7410(a)(2)). The Office of Management

and Budget has exempted this action

from review under Executive Order

12866.

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action must be filed in the U.S. Court of

Appeals for the appropriate circuit by

May 8, 1995. 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,

Incorporation by reference, Ozone.

Dated: December 23, 1994.

Jane N. Saginaw,

Regional Administrator.

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. 7401–7671q.

Subpart SS—Texas

2. Section 52.2270 is amended by

adding paragraph (c)(91) to read as

follows:

§ 52.2270 Identification of plan.

* * * * *

(c) * * *

(91) Revisions to the TNRCC

Regulation IV, concerning the Employer

Trip Reduction program, were

submitted by the Governor on

November 13, 1992.

(i) Incorporation by reference.
12446 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Rules and Regulations

(A) Revisions to the TNRCC

Regulation IV (31 TAC § 114.21,

Employer Trip Reduction Program), as

adopted by the TACB on October 16,

1992.

(B) TACB Order 92–14 as adopted on

October 16, 1992.

(C) SIP narrative entitled, ‘‘Employer

Trip Reduction Program, HoustonGalveston Area,’’ adopted by the TACB

on October 16, 1992, pages 31–38,

addressing: 8.c. Quality Assurance

Measures; 9. Training and Information

Assistance; 11. Enforcement; and 12.

Notification of Employers.

(ii) Additional material.

(A) SIP narrative entitled, ‘‘Employer

Trip Reduction Program, HoustonGalveston Area,’’ adopted by the TACB

on October 16, 1992.

(B) The TACB certification letter

dated November 10, 1992, signed by

William R. Campbell, Executive

Director, TACB.

[FR Doc. 95–5439 Filed 3–6–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[MI26–04–6805; FRL–5157–1]

Approval and Promulgation of

Implementation Plan; Michigan DetroitAnn Arbor NOX Exemption

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency is granting an exemption to the

Detroit-Ann Arbor ozone nonattainment

area from applicable oxides of nitrogen

(NOX) requirements found in the Clean

Air Act (Act). Approval of the

exemption would apply for various NOX

requirements including adoption and

implementation of regulations

addressing general conformity,

transportation conformity, inspection

and maintenance, reasonably available

control technology, and new source

review. The State of Michigan submitted

a NOX exemption request on November

12, 1993. A subsequent letter dated May

31, 1994 clarified this earlier submittal.

This request is based on the fact that

ozone monitoring in the Detroit-Ann

Arbor area indicates that the average

number of exceedances of the National

Ambient Air Quality Standard for ozone

during the most recent 3-year period,

1991 to 1993, is fewer than one per year.

Given this monitoring data, Michigan

petitioned for an exemption from the

NOX requirements based on a

demonstration that additional

reductions of NOX would not contribute

to attainment of the ozone standard.

EFFECTIVE DATE: This final rule will be

effective April 6, 1995.

ADDRESSES: Written comments should

be sent to: Carlton T. Nash, Chief,

Regulation Development Section, Air

Toxics and Radiation Branch (AT–18J),

EPA, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604–

3590.

Copies of the request and the EPA’s

analysis are available for inspection at

the following address: USEPA, Region 5,

Air and Radiation Division, 77 West

Jackson Boulevard, Chicago, Illinois

60604–3590. (Please telephone Douglas

Aburano at (312) 353–6960 before

visiting the Region 5 office.)

FOR FURTHER INFORMATION CONTACT:

Douglas Aburano, Air Toxics and

Radiation Branch (AT–18J), EPA, Region

5, Chicago, Illinois 60604, (312) 353–

6960.

SUPPLEMENTARY INFORMATION:

I. Background

On November 12, 1993 the State of

Michigan submitted a petition to the

EPA requesting that the Detroit-Ann

Arbor ozone nonattainment area be

exempted from the requirement to

implement NOX controls pursuant to

section 182(f) of the Act. The exemption

request is based upon monitoring data

which demonstrate that the average

number of exceedances of the ozone

standard in the Detroit-Ann Arbor area

during the most recent 3-year period,

1991 through 1993, is fewer than one

per year.

On August 10, 1994, EPA published a

direct final rulemaking approving the

NOX exemption petition for the DetroitAnn Arbor nonattainment area. During

the 15 day public comment period, EPA

received joint adverse comments from

the Natural Resources Defense Council,

Sierra Club Legal Defense Fund, and the

Environmental Defense Fund and 2

requests for additional time to comment

on this rulemaking from the State of

New York and the Citizens Commission

for Clean Air in the Lake Michigan

Basin. The EPA published a document

announcing the opening of a second

comment period on October 6, 1994.

The second comment period lasted until

November 7, 1994. During the second

comment period, the State of New York

submitted adverse comments.

II. Public Comment/EPA Response

The following evaluation summarizes

each comment received and EPA’s

response to the comment. A more

detailed discussion of the State

submittal and the rationale for the EPA’s

action based on the Act and cited

references appear in EPA’s technical

support documents dated February 8,

1994 and December 1, 1994.

NRDC Comments

Following is a summary of comments

received from the NRDC in a letter dated

August 24, 1994 signed by Sharon

Buccino. After each comment is EPA’s

response.

NRDC Comment 1: Certain

commenters argued that NOX

exemptions are provided for in two

separate parts of the Act, section

182(b)(1) and section 182(f). Because the

NOX exemption tests in subsections

182(b)(1) and 182(f)(1) include language

indicating that action on such requests

should take place ‘‘when [EPA]

approves a plan or plan revision,’’ these

commenters conclude that all NOX

exemption determinations by the EPA,

including exemption actions taken

under the petition process established

by subsection 182(f)(3), must occur

during consideration of an approvable

attainment or maintenance plan, unless

the area has been redesignated as

attainment. These commenters also

argue that even if the petition

procedures of subsection 182(f)(3) may

be used to relieve areas of certain NOX

requirements, exemptions from the NOX

conformity requirements must follow

the process provided in subsection

182(b)(1), since this is the only

provision explicitly referenced by

section 176(c), the Act’s conformity

provisions.

EPA Response: Section 182(f)

contains very few details regarding the

administrative procedure for acting on

NOX exemption requests. The absence

of specific guidelines by Congress leaves

EPA with discretion to establish

reasonable procedures, consistent with

the requirements of the Administrative

Procedure Act (APA).

The EPA disagrees with the

commenters regarding the process for

considering exemption requests under

section 182(f), and instead believes that

subsections 182(f)(1) and 182(f)(3)

provide independent procedures by

which the EPA may act on NOX

exemption requests. The language in

subsection 182(f)(1), which indicates

that the EPA should act on NOX

exemptions in conjunction with action

on a plan or plan revision, does not

appear in subsection 182(f)(3). And,

while subsection 182(f)(3) references

subsection 182(f)(1), the EPA believes

that this reference encompasses only the

substantive tests in paragraph (1) (and,

by extension, paragraph (2)), not the

procedural requirement that the EPA act

on exemptions only when acting on

SIPs. Additionally, paragraph (3)

provides that ‘‘person[s]’’ (which