Approval and Promulgation of Implementation Plans; Texas; Memorandum of Agreement Between Texas Council on Environmental Quality and the North Central Texas Council of Governments Providing Emissions Offsets to Dallas-Fort Worth International Airport, 20816-20821 [05-8121]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 77 (Friday, April 22, 2005)]
[Rules and Regulations]
[Pages 20816-20821]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-8121]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2004-TX-0002; FRL-7902-8]


Approval and Promulgation of Implementation Plans; Texas; 
Memorandum of Agreement Between Texas Council on Environmental Quality 
and the North Central Texas Council of Governments Providing Emissions 
Offsets to Dallas-Fort Worth International Airport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Texas on February 23, 2004. This revision 
concerns the Dallas-Fort Worth ozone nonattainment area. Specifically, 
EPA is approving incorporation of a Memorandum of Agreement (MOA) 
between the Texas Commission on Environmental Quality (TCEQ) and the 
North Central Texas Council of Governments (NCTCOG) into the SIP. This 
MOA commits the NCTCOG to provide the Dallas-Fort Worth International 
Airport (DFWIA) with emissions offsets in the amount of 0.18 tons per 
day (tpd) of nitrogen oxides (NOX) and 0.04 tpd of volatile 
organic compounds (VOCs) in 2007, and to adjust the modeled 2015 on-
road emission estimates to reflect an increase of 1.17 tpd of 
NOX and 0.26 tpd of VOCs, which must be accommodated in 
future transportation conformity determinations. This action is 
necessary in order for the Federal Aviation Administration (FAA) to 
address requirements under the general conformity regulations for the 
proposed DFWIA project. The rationale for the final approval action and 
other information are provided in this document.

DATES: This rule is effective on May 23, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Materials in EDocket (RME) Docket ID No. R06-OAR-2004-TX-0002. All 
documents in the docket are listed in the Regional Materials in EDocket 
(RME) index at https://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 the 
disclosure of which 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 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 75202-2733, telephone (214) 665-7247; fax number 
214-665-7263; e-mail address wade.peggy@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 Did the State Submit and How Did We Evaluate It?
IV. Responses to Comments on the Direct Final Action
V. Final Action
VI. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    On January 14, 2004, TCEQ adopted a Memorandum of Agreement (MOA) 
between TCEQ and NCTCOG's Regional Transportation Council (RTC). At the 
same time, TCEQ adopted a revision to the Texas SIP to incorporate this 
MOA into it, and has since submitted this SIP revision to EPA for 
approval. This MOA commits the RTC to provide the DWFIA with emissions 
offsets in the amount of 0.18 tpd of NOX and 0.04 tpd of 
VOCs in 2007 and to adjust the modeled 2015 on-road mobile source 
emissions estimates by an increase of 1.17 tpd and 0.26 tpd of 
NOX and VOCs, respectively, in future transportation 
conformity demonstrations by the FAA.
    EPA is approving the incorporation of this MOA into the DFW SIP. 
This action by EPA will ensure that the MOA, and the resulting emission 
offsets, are enforceable at both the federal and state levels.

II. What Is the Background for This Action?

    The DFW area is a nonattainment area for the air pollutant ozone, 
and is operating under a SIP to control the emissions of NOX 
and VOCs, which are ozone precursor pollutants. Under the Texas general 
conformity rules (30 TAC 101.30), which implement the general 
conformity requirements of section 176(c) of the Clean Air Act, certain 
types of Federal actions, such as FAA approval of environmental 
documents developed in accordance with the National Environmental 
Policy Act (NEPA), require a determination as to whether the total 
emissions from the action conform with the applicable SIP, unless the 
resultant emissions are expected to be below the de minimis levels 
identified in these regulations (30 TAC 101.30(c)(2); see 40 CFR

[[Page 20817]]

51.853(b)(1)). The de minimis level for the DFW one-hour nonattainment 
area is 50 tons per year. The applicable SIP, in this case, is the Post 
1996 Rate of Progress (ROP) SIP approved by EPA on March 28, 2005 (70 
FR 15592, effective April 27, 2005).
    The DFWIA notified TCEQ and EPA of upcoming aviation projects that 
would trigger the need for a general conformity determination by the 
FAA. These projects include construction of a new terminal (Terminal 
F), addition of a new cargo complex, improvement of airport parking, 
changes to current operating restrictions of existing terminal 
facilities, and other related projects included in the DFW Airport 
Master Plan.
    Based on submitted estimates of direct and indirect NOX 
and VOC emissions resulting from these projects, emissions are expected 
to exceed the de minimis level of 50 tons per year during some of the 
project years. As evaluated in 2007, only NOX estimates 
exceed this level (0.18 NOX tpd or 65.7 NOX tpy), 
but in the peak operation year of 2015 both precursor pollutants are 
expected to exceed the de minimis level (1.16 NOX tpd and 
0.26 tpd VOC). As a result a general conformity determination by the 
FAA is required.

III. What Did the State Submit and How Did We Evaluate It?

    The conformity regulations provide several options to show that an 
action conforms to an applicable implementation plan. One option is to 
establish enforceable measures that offset the expected emissions from 
the project. 30 TAC 101.30(h)(1)(B); see 40 CFR 51.858(a)(2). The DFWIA 
worked with the Regional Transportation Council in 2002 to identify 
emission reduction measures to be used to offset the emissions 
associated with these airport expansion projects. On December 12, 2002, 
the RTC resolved to implement emission reduction measures to provide 
offsets for use by the DFWIA to meet general conformity requirements 
for the year 2007. At a minimum, these measures will offset the 0.18 
tpd of NOX and 0.04 tpd of VOCs that are expected to be 
generated in 2007 by the Terminal F projects. In addition, the RTC 
resolved to provide emission reductions in the amount of 1.17 tpd of 
NOX and 0.26 tpd of VOCs for the year 2015. This will be 
accomplished by incorporating these expected emissions into the 
Metropolitan Transportation Plan for the year 2015, for which the total 
estimated emissions cannot exceed the emissions cap set by the motor 
vehicle emissions budget for that year. Provisions in the general 
conformity regulations allow for such an interaction between the 
general conformity and transportation conformity processes. The general 
conformity regulations specifically state that a federal agency can 
demonstrate general conformity, in part, by showing that ``the action 
or portion thereof, as determined by the MPO, is specifically included 
in a current transportation plan and transportation improvement program 
which have been found to conform to the applicable SIP [under the 
transportation conformity regulations].'' 30 TAC 101.30(h)(1)(E)(ii); 
40 CFR 51.858(a)(v)(ii). See also Question 1 on p. 30 of the General 
Conformity Guidance Questions and Answers, issued by EPA on July 13, 
1994. Details on the emission reduction measures are available in the 
Technical Support Document associated with this action. These emission 
reduction commitments are intended to assist the FAA in making a 
general conformity determination for the planned airport expansion 
projects associated with construction of Terminal F.
    The general conformity rules require these measures to be 
enforceable under both state and Federal law (30 TAC 101.30(h)(1)(B); 
see 40 CFR 51.858(a)(2)). Upon the effective date of our action, these 
measures will be federally enforceable. The MOA between TCEQ and the 
RTC was adopted by the state on January 14, 2004, and was incorporated 
into the State Implementation Plan for the DFW ozone nonattainment area 
on that same day. Thus, these measures are already enforceable by state 
law.
    It is important to note that EPA is not making a general conformity 
determination itself nor are we approving a general conformity 
determination for this FAA action. Under the conformity regulations, 
each Federal agency must make its own conformity determination (30 TAC 
101.30(d); see 40 CFR 51.854). With this approval action, EPA is simply 
approving into the SIP an MOU that will provide a means for the FAA to 
make future general conformity determinations for the DFWIA.

IV. Responses to Comments on the Direct Final Action

    On October 29, 2004, EPA published a direct final rule approving a 
revision to incorporate the MOA into the Texas SIP for the DFW ozone 
nonattainment area. This rule contained the condition that if any 
adverse comments were received by the end of the public comment period 
on November 29, 2004, the direct final rule would be withdrawn and we 
would respond to the comments in a subsequent final action. One 
consolidated set of comments was received from a representative of Blue 
Skies Alliance, Downwinders at Risk, Public Citizen and Sierra Club. 
The following summarizes the comments and EPA's response to these 
comments.
    Comment 1: The action allows Texas to avoid Clean Air Act 
obligations under the 1-hour ozone standard by allowing emission 
reduction measures to offset airport emissions. Any reductions from 
these measures should be included in the area's SIP to meet its 
outstanding 1-hour obligation.
    Response: EPA action on the 1-hour ozone attainment demonstration 
SIP submitted by TCEQ to EPA on April 25, 2000, is outside the scope of 
this Federal Register action. The general conformity regulations 
authorize the use of emission offsets in conformity determinations (30 
TAC 101.30(h)(1)(B); see 40 CFR 51.858(a)(2)). This provision states 
that emission offsets may be implemented through a revision to the SIP 
or a similarly enforceable measure so that sufficient emission 
reductions are achieved that there is no net increase in emissions of 
the criteria pollutant. The incorporation of this MOA into the Texas 
SIP is not specifically related to the attainment demonstration SIP. 
EPA action to incorporate this MOA into the general Texas SIP will 
render the provisions of the MOA federally enforceable as required by 
the general conformity regulations discussed above. Although there is 
currently not an approved 1-hour ozone attainment demonstration SIP for 
the DFW area, EPA has outlined several options that will allow States 
to fulfill unmet 1-hour obligations in the recent rulemaking related to 
promulgation of the 8-hour ozone NAAQS (69 FR 23951).
    Comment 2: Comment questions the ability of 2015 MVEBs to 
accommodate emissions from the airport project and states that the 
proposed action blurs the distinction between the conformity rules that 
allow conformity to be determined by either inclusion of the emissions 
in the SIP or by providing separate offsets.
    Response: EPA disagrees with this comment. The MOA commits the 
North Central Texas Council of Governments to accommodate expected 
emissions from the airport project by adjusting (i.e., increasing) the 
modeled regional mobile emissions estimates for 2015. EPA action to 
incorporate this MOA into the general Texas SIP will render the 
provisions of the MOA federally enforceable as required by the general 
conformity regulations. Therefore, any

[[Page 20818]]

failure by the NCTCOG to adjust the regional emissions estimates in 
2015 could result in a finding by EPA of a failure to implement the SIP 
and could jeopardize future transportation conformity determinations 
required for the area's Metropolitan Transportation Plan and 
Transportation Improvement Program. Further, the conformity rule 
provisions for demonstrating conformity allow a combination of 
approaches to be used. 30 TAC 101.30(h); see 40 CFR 51.858(a). The FAA 
has decided to demonstrate conformity by implementing emissions offsets 
and by ensuring that the 2015 emissions estimates will be included in a 
conforming Transportation Improvement Program as authorized by 30 TAC 
101.30(h)(1)(E)(ii). See 40 CFR 51. 858(a)(5)(ii); Question 39 of 
General Conformity Guidance for Airports Questions and Answers 
(published jointly by EPA and FAA on September 25, 2002). The NCTCOG 
must continue to adjust the regional emissions analysis to accommodate 
this airport project in any transportation conformity determination 
undertaken prior to the MOA expiration date of December 31, 2015.
    Comment 3: The general conformity determination would rely on 
inclusion of 2015 emissions in a future 1-hour SIP.
    Response: EPA disagrees. Any conformity determination made by the 
FAA or other Federal agency is not dependent upon submission or 
approval of a 1-hour ozone attainment demonstration SIP. The conformity 
regulations provide several mechanisms to demonstrate conformity that 
are unrelated to whether an approved SIP is in place, including the 
provision related to emissions offsets (30 TAC 101.30(h)(1)(B); 40 CFR 
51.858(a)(2)).
    Comment 4: EPA should treat the 1999 [sic] attainment demonstration 
SIP as disapproved and find that no projects may proceed until current 
inventories are developed and an attainment demonstration is made.
    Response: EPA believes the commenters are referring to the 
attainment demonstration SIP submitted in 2000, because EPA has taken 
final action on the 1999 attainment demonstration SIP. On June 2, 1999, 
EPA published a final rule finding that the 1999 SIP submitted by TCEQ 
was incomplete (64 FR 29570). To date, EPA has taken no action on the 
2000 attainment demonstration SIP. Action on this SIP is outside the 
scope of this notice. The conformity regulations provide several 
mechanisms to demonstrate conformity that are unrelated to whether an 
approved SIP is in place, including the provision related to emissions 
offsets (30 TAC 101.30(h)(1)(B); 40 CFR 51.858(a)(2)).
    Comment 5: Construction emissions in the SIP should first be 
mitigated to as low a level as possible, and then offset with emission 
reduction measures.
    Response: Although EPA supports and encourages air quality 
mitigation measures and use of Best Management Practices in 
construction operations, mitigation is not required prior to 
determination of emission offsets.
    Comment 6: Offset requirements are underestimated because the 90% 
NOX emission reduction controls on airport Ground Support 
Equipment (GSE) are not part of an approved SIP. Agreed Orders do not 
assure that all future airport activity will be controlled to the 
assumed level.
    Response: Agreed Orders and Memoranda of Agreement (MOAs) 
concerning emission reductions in Ground Support Equipment at DFW area 
airports were signed by the parties involved in 2001 and approved into 
the SIP by EPA on April 22, 2002 (67 FR 19515). Therefore, as measures 
approved into the Texas SIP, the Agreed Orders and MOAs are federally 
enforceable and subject to the enforcement provisions generally 
applicable to SIPs, including potential sanctions that could be 
triggered if EPA finds that TCEQ has failed to implement the SIP.
    Comment 7: Emission estimates are likely erroneous. The commenters 
reference a Texas Transportation Institute (TTI) Airport Emissions 
Inventory study.
    Response: The emissions estimates were based on inventories, 
emission factors and emission models that were available at the time 
the analysis was started. While emission inventories and models are 
updated periodically, EPA believes that the initial estimates provided 
by the DFWIA are reasonable and appropriate. The revised 2007 
NOX inventory, upon which the Agreed Orders and MOAs are 
based, is the result of a more refined survey of the GSE population in 
actual use at the affected airports. This inventory revision went 
through the State's administrative process for adoption and was 
subsequently accepted by EPA. The TTI study referenced by the 
commenters was cited in the DFW 5% Increment-of-Progress SIP, which is 
still under consideration by TCEQ. This study was not available at the 
time the GSE Agreed Orders were developed.
    Please note that EPA is not making a general conformity 
determination itself; we are solely approving a mechanism that the FAA 
may use for a future general conformity determination for the DFWIA. 
Each Federal agency must make an independent conformity determination 
for its action. Prior to making conformity determination the FAA must 
evaluate the emission estimate methodology and inventory. Any 
conformity determination made by the FAA is subject to the public 
notice and involvement provisions of the general conformity 
regulations.
    Comment 8: Current controls on existing sources expire and are not 
enforceable because the MOU containing the DFWIA emission reduction 
commitments expires in 2007.
    Response: The GSE Agreed Orders and MOAs (among which is presumably 
the MOU referenced in the comment) have been signed and incorporated 
into the Texas SIP. Therefore, because EPA has already approved the 
orders and MOAs into the SIP in a separate final action (see 67 FR 
19515), this comment is outside the scope of this action. Nonetheless, 
airport operators and major carriers in the affected areas have already 
made the required conversions of GSE to electric. Although the GSE MOA 
expires in 2007, it is unreasonable to expect that airport operators 
and carriers would then convert this equipment back to diesel.
    Comment 9: The Technical Support Document must address the 
effectiveness of various elements of the SIP that generate the basis of 
the GSE emission factors.
    Response: This request is beyond the scope of this action. EPA is 
not acting on the 2000 attainment demonstration SIP with this notice. 
The GSE emission factors used mirror those used to develop the Agreed 
Orders with DFWIA, the Cities of Dallas and Fort Worth and the GSE 
owners/operators at DFWIA. These Agreed Orders were approved by EPA and 
incorporated into the general Texas SIP on April 22, 2002 (67 FR 
19515).
    Comment 10: General conformity regulations require the use of the 
latest and most accurate emission estimation techniques available per 
40 CFR 93.160(b), but MOA activity is based on 1996 data.
    Response: The emissions inventory was prepared in accordance with 
methods and models approved by EPA and FAA, and used the latest 
available inventory at the time the analysis was begun. Please note 
that this Federal Register action is not a conformity determination and 
the FAA may require additional analyses with updated inventories and 
currently available models prior to any future conformity determination 
it may undertake.

[[Page 20819]]

    Comment 11: The general conformity determination does not reference 
FAA's Emissions and Dispersion Modeling system (EDMS).
    Response: This is not a general conformity determination but simply 
a mechanism by which to make available emission reduction credits or 
offsets for possible use by a Federal agency in making a conformity 
determination. Emission estimates for the Terminal F projects provided 
by DFWIA included use of the FAA's EDMS model, among others (see the 
Technical Support Document associated with the proposal for this 
action.)
    Comment 12: The analysis is proposed using MOBILE5 and should be 
reevaluated using MOBILE6.
    Response: At the time the analysis was developed, MOBILE5 was the 
latest EPA-approved model for estimating on-road mobile source 
emissions. EPA released a later version of the MOBILE model, MOBILE6, 
on January 29, 2002 (67 FR 4254). EPA regulations allow a grace period 
for emission analysis begun prior to the issuance of a new emissions 
model. In accordance with 30 TAC 101.30(i)(2)(A)(ii) and 40 CFR 
58.859(b)(1)(ii), general conformity analyses for which the analysis 
was begun during the grace period or no more than three years before 
the Federal Register notice of availability of the latest emissions 
model may continue to use the previous version of the model specified 
by EPA. The initial emissions estimate prepared by DFWIA was submitted 
in January 2003, well within the three-year window of model 
acceptability. Depending on the timing of any conformity determination 
by FAA based on the submitted emissions estimates, that agency may 
choose to require an updated emissions analysis using MOBILE6. However, 
that decision is outside the scope of this action.
    Comment 13: The FAA/EPA general conformity guidance for airports 
requires incorporation of mitigation measures into the project.
    Response: The FAA is not making a general conformity determination 
at this time, and this comment is outside the scope of this action. Any 
conformity determination made by FAA will be subject to the mitigation 
and public notice and involvement provisions of the general conformity 
regulation.
    Comment 14: The mitigation measures are ill-defined per 40 CFR 
93.160 requirements.
    Response: DFWIA is proposing to use offsets rather than mitigation 
to demonstrate conformity in this case. Although a draft list of 
candidate projects that could be used as offsets was provided by the 
NCTCOG, specific projects to be used as offsets have not been 
identified. We agree with the commenters that these measures must be 
specifically identified, along with a timeline for implementation, and 
included in a conformity determination if the FAA intends to use such 
measures as offsets. This action supports the requirements of 30 TAC 
101.30(h)(1)(B) and 40 CFR 51.858(a)(2) by making use of any such 
measures federally enforceable. For further discussion of mitigation 
and offsets, please see Question 38 in the General Conformity Guidance 
for Airports: Questions and Answers jointly issued by EPA and FAA on 
September 25, 2002.
    Comment 15: ``Signal improvement'' is not a sufficient description 
of the emission reduction measures.
    Response: The list of emission reduction measures proposed by the 
NCTCOG and provided in the Technical Support Document of EPA's proposed 
approval of the MOA is draft and therefore subject to change. With this 
action, EPA is merely approving the mechanism to commit to use such 
measures in general conformity determinations. The appropriateness of 
individual measures is outside the scope of this action and will be 
addressed by the FAA if a conformity determination is conducted for the 
Terminal F project. The term ``signal improvement'' is a recognized 
term used in professional practice and with generally agreed upon 
methodologies to calculate emission reduction benefits from such 
measures.
    Comment 16: Emission offsets are Reasonably Available Control 
Measures and should not be used to permit emissions growth.
    Response: Under 30 TAC 101.30(b)(1) and 40 CFR 58.852, emissions 
reductions can be considered surplus when they are not required for use 
by or credited to other applicable SIP provisions. The applicable SIP 
(i.e., the most recently approved SIP) is the Post 1996 ROP SIP, 
approved by EPA on March 28, 2005 (70 FR 15592, effective April 27, 
2005). The emission offsets memorialized by this MOA are not part of 
the 15% ROP SIP, nor are they reserved for use elsewhere. The 15% ROP 
SIP does not contain an airport emission budget, so conformity may be 
demonstrated by one of the other means available under 30 TAC 101.30(h) 
and 40 CFR 51.858, including offsetting the expected emissions from the 
project so that no net increase in emissions occurs.
    Comment 17: Minutes from TCEQ's modeling meetings disclose 
projections that enormous additional emission reduction measures will 
be needed for DFW to attain the 1-hour or 8-hour ozone standards. These 
offsets are not surplus reductions.
    Response: As a result of recent promulgation of a new ozone 
standard, the 8-hour ozone standard, TCEQ must submit a SIP 
demonstrating that this standard can be attained in the DFW 8-hour 
nonattainment area no later than the statutory attainment date (69 FR 
23951). As a result of the MOA signed between TCEQ and NCTCOG, the 
emission reductions identified to offset the expected increase in 
emissions due to construction and operation of Terminal F at DFWIA 
would not be available for use in demonstrating attainment of the 8-
hour standard. TCEQ may include an airport emissions budget in the 8-
hour attainment demonstration SIP for the DFW area. If so and if 
approved by EPA, this would offer the FAA another means to demonstrate 
conformity of airport projects to the SIP.
    Comment 18: Deferring analysis of a project's conformity by 
assigning project emissions to a future MVEB is improper.
    Response: The conformity regulations intend for federal agencies to 
be accountable for emissions resultant from their actions. In fact, the 
general conformity regulations specifically state that a federal agency 
can demonstrate general conformity, in part, by showing that ``the 
action or portion thereof, as determined by the MPO, is specifically 
included in a current transportation plan and transportation 
improvement program which have been found to conform to the applicable 
SIP [under the transportation conformity regulations].'' 30 TAC 
101.30(h)(1)(E)(ii); 40 CFR 51.858(a)(v)(ii). See also, Question 1 on 
p. 30 of the General Conformity Guidance Questions and Answers, issued 
by EPA on July 13, 1994.
    Comment 19: A finding of conformity does not meet Sec.  93.160 
mitigation requirements and does not constitute a finding that 
emissions in interim years will actually be achieved.
    Response: Mitigation measures were not specifically included in the 
emission estimates for Terminal F provided by DWIA, but may be required 
by FAA prior to any conformity determination on this project. Any such 
requirement is outside the scope of this Federal Register action. The 
general conformity regulations do not require emissions offsets and/or 
mitigation for every year of a project. Specific analysis years are 
defined at 30 TAC 101.30(i)(4) and 40 CFR 51.859(d) and include the 
area's attainment year (currently 2007 for the DFW area under the 1-
hour standard) and the year emissions from the action are expected to 
be at their greatest, and any year in which the

[[Page 20820]]

applicable SIP includes an emission budget.
    Comment 20: The 2015 MVEBs have little relevance to future SIP 
goals, as future conformity determinations will be based on the DFW 5% 
Increment-of-Progress SIP.
    Response: TCEQ has proposed a 5% Increment-of-Progress (IOP) SIP as 
a transition SIP between the 1-hour and 8-hour ozone standards in 
accordance with the 8-hour ozone rules promulgated at 69 FR 23951. 
However, this SIP has not yet been adopted nor submitted to EPA for 
approval. Until EPA approves of the proposed 5% IOP SIP, it is not 
considered the applicable SIP for general conformity demonstrations. As 
a result of the incorporation of the MOA into the general Texas SIP, 
the amount of emission reductions necessary to satisfy the terms of the 
MOA will need to be subtracted from any 2015 MVEB in effect at the 
time, regardless of which SIP they come from.
    Comment 21: The general conformity determination calculates project 
emissions with MOBILE5.
    Response: Please see response to Comment 12 above.
    Comment 22: The project will cause or contribute to future ozone 
violations.
    Response: The purpose of the criteria to demonstrate conformity 
found at 30 TAC 101.30(h) and 40 CFR 51.858 is to ensure that the 
actions of Federal agencies conform to the State's air quality plan. 
One way to demonstrate conformity is by committing to offset or 
mitigate any expected emissions increases that are not otherwise 
exempted from conformity. This action memorializes the commitment of 
the NCTCOG to work with the FAA in determining appropriate emission 
reduction measures that may be used to offset emission increases 
associated with specific projects at the DFWIA. The FAA may require 
other mitigation deemed necessary for a positive conformity 
determination. Offsetting the expected emissions by implementation of 
emission reduction measures elsewhere in the DFW nonattainment area and 
demonstrating conformity in this manner will, by law, result in a 
finding that any increases in emissions associated with the Terminal F 
suite of projects will not cause or contribute to future ozone 
violations. As noted previously, the FAA has the ultimate 
responsibility for making the general conformity determination for the 
Terminal F projects.
    Comment 23: The DFW Rate of Progress SIP is no longer accurate or 
current enough to support a conformity finding.
    Response: Incorporation of the MOA into the general Texas SIP by 
this Federal Register action will enable the FAA to demonstrate 
conformity by a means other than reliance on the ROP SIP and still meet 
the general conformity requirements of section 176 (c) of the Clean Air 
Act.
    Comment 24: The risk from toxic emissions upon downwind communities 
must be identified.
    Response: General conformity regulations apply only to the criteria 
pollutants defined at 40 CFR 51,853(b). For further information on 
mobile source air toxics, please see 66 FR 17229.

V. Final Action

    EPA is approving the revision to the DFW ozone SIP providing 
emission reduction offsets to DFW International Airport for the year 
2007 and a commitment that the NCTCOG will account for expected 
emissions from certain improvement projects planned for DFWIA in 2015 
as part of its transportation conformity determination for the 
Metropolitan Transportation Plan.

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, 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 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 seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

[[Page 20821]]

    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 June 21, 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: April 14, 2005.
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 table in paragraph (e) entitled ``EPA approved 
nonregulatory provisions and quasi-regulatory measures'' 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    State
        Name of SIP provision           Applicable geographic    submittal/              EPA approval date                         Comments
                                        or nonattainment area  effective date
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Memorandum of Agreement between Texas  Dallas-Fort Worth.....        01/14/04  04/22/05 [Insert FR page number
 Council on Environmental Quality and                                           where document begins].
 the North Central Texas Council of
 Governments Providing Emissions
 Offsets to Dallas Fort Worth
 International Airport.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 05-8121 Filed 4-21-05; 8:45 am]
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