Approval and Promulgation of Air Quality Implementation Plans; Texas; Dallas-Fort Worth Voluntary Mobile Emission Reduction Program, 50208-50212 [05-17030]

Download as PDF 50208 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations [FR Doc. 05–16933 Filed 8–25–05; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 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: 40 CFR Part 52 [TX 126–1–7690; FRL–7960–4] Approval and Promulgation of Air Quality Implementation Plans; Texas; Dallas-Fort Worth Voluntary Mobile Emission Reduction Program 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: Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: SUMMARY: EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Texas. This revision approves the Dallas-Fort Worth (DFW) Voluntary Mobile Emission Reduction Program (VMEP) which is relied upon to achieve the National Ambient Air Quality Standard (NAAQS) for ozone in the DFW nonattainment area. DATES: This rule is effective on September 26, 2005. ADDRESSES: Copies of the documents relevant to this action are in the official file which is available at the Air Planning Section (6PD–L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202–2733. 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. Copies of any State submittals and EPA’s technical support document are also available for public inspection at the State Air Agency listed below Throughout this document wherever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the EPA. Outline of Topics I. What Action Is EPA Taking and Why? II. What Are the Federal Requirements? III. What Is the Background for This Action? IV. What Did the State Submit? V. What Does the DFW VMEP Include? VI. What Comments Did EPA Receive in Response to the January 18, 2001, Proposed Rule? VII. EPA’s Final Rulemaking Action VIII. Statutory and Executive Order Reviews I. What Action Is EPA Taking and Why? We are approving the DFW VMEP into the Texas SIP. We are taking this action because the State submitted a SIP revision that relies on the VMEP to achieve the NAAQS in the DFW ozone nonattainment area. II. What Are the Federal Requirements? Section 172 of the Act provides the general requirements for nonattainment plans. Section 172(c)(6) and section 110 require SIPs to include enforceable emission limitations, and such other control measures, means or techniques as well as schedules and timetables for compliance, as may be necessary to provide for attainment by the applicable attainment date. Today’s action involves approval of one of a collection of controls adopted by the State to achieve the ozone standard in the DFW nonattainment area as required under section 172. EPA approval of this SIP revision is governed by section 110 of the Act. III. What Is the Background for This Action? In the Federal Register published on January 18, 2001 (66 FR 4756) we proposed to approve a Voluntary Mobile Emissions Reduction Program (VMEP) in nine counties (including the DFW 4county area) as local initiatives. The counties are Collin, Dallas, Denton, and Tarrant along with the surrounding counties of Ellis, Johnson, Kaufman, Parker, and Rockwall. Voluntary mobile source strategies that attempt to complement existing regulatory programs through voluntary, non-regulatory changes in local transportation activities or changes in in-use vehicle and engine composition constitute the VMEP. EPA concludes that the Clean Air Act allows SIP credit for new approaches to reducing mobile source emissions. This flexible approach is consistent with section 110. Up to 3% of the total future year emissions reductions required to attain the appropriate NAAQS may be claimed under the VMEP policy.1 Specifically, the guidance suggests key points be considered for approval of credits. The credits should be quantifiable, surplus, enforceable, permanent, and adequately supported. The State must timely assess and backfill any shortfall pursuant to enforceable commitments in the SIP in the event that the projected emission reductions are not achieved. In addition, VMEPs must be consistent with attainment of the standard and with the Rate of Progress requirements and not interfere with other Clean Air Act requirements. IV. What Did the State Submit? The State submitted program descriptions that projected emission reductions attributable to each specific voluntary program. These program descriptions were included in the DFW 1-hour ozone SIP revision submitted April 25, 2000. V. What Does the DFW VMEP Include? The following Table lists the programs and projected credits. Programs submitted with no credit assigned are also listed. VOLUNTARY MOBILE EMISSION REDUCTION PROGRAMS AND CREDITS CLAIMED VOC benefits (tons per day) Program type Alternative Fuel Program ......................................................................................................................................... Employee Trip Reduction ........................................................................................................................................ Public Education Campaign/Ozone Season Fare Reduction ................................................................................. 1 Memorandum from Richard D. Wilson, Acting Assistant Administrator for Air and Radiation, VerDate Aug<18>2005 16:11 Aug 25, 2005 Jkt 205001 dated October 24, 1997, entitled ‘‘Guidance on Incorporating Voluntary Mobile Source Emission PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 NOX benefits (tons per day) 0.18 0.29 0.08 0.18 0.53 0.15 Reduction Programs in State Implementation Plans (SIPs).’’ E:\FR\FM\26AUR1.SGM 26AUR1 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 50209 VOLUNTARY MOBILE EMISSION REDUCTION PROGRAMS AND CREDITS CLAIMED—Continued Program type VOC benefits (tons per day) NOX benefits (tons per day) Tier II Locomotive Engines ...................................................................................................................................... Vehicle Retirement Program/Vehicle Maintenance * ............................................................................................... Sustainable Development ........................................................................................................................................ Non-Road Ozone Season Reductions .................................................................................................................... Off-Road Heavy Duty Diesel Engine Retrofits ........................................................................................................ 0–0.6 0.56 ........................ ........................ ........................ 0–3.0 0.77 ........................ ........................ ........................ Total Benefits (tpd) ........................................................................................................................................... 1.11–1.71 1.63–4.63 *Emission benefits quantified for the Vehicle Retirement Program only. Emission benefits for Vehicle Maintenance are credited in the Vehicle Inspection and Maintenance Program. The State commits to evaluating each program to validate estimated credits, to evaluating and reporting on the program implementation and results, and to timely remedy any credit shortfall. The State also commits to additional Transportation Control Measures (TCMs) that can be substituted for any shortfall in credit from the estimated credits for VMEP. These include Signal Improvements and Freeway Corridor Management. EPA’s analysis of all the VMEP measures shows that each creditable measure could be quantified. The reductions are surplus by not being substitutes for mandatory, required emission reductions. The SIP with voluntary measures is enforceable because the state has committed to fill any shortfall in credit, thus any enforcement will be against the State. The reductions will continue at least for as long as the time period in which they are used by a SIP demonstration, so they are considered permanent. Each measure is adequately supported by personnel and program resources for implementation. The State’s goal is 5.0 tons per day of NOX benefit from the VMEP program. VI. What Comments Did EPA Receive in Response to the January 18, 2001, Proposed Rule? Comments were submitted by the Natural Resources Defense Council (NRDC). Comment: The NRDC supports the objectives of the voluntary initiatives identified in the proposal. They hope that greater employment of these measures will promote greater public awareness of the area’s severe air pollution problems and that these measures will bring about emissions reductions that will lead to healthy air. Response: We appreciate the positive comments about the voluntary initiatives in the VMEP. Comment: EPA’s VMEP guidance document is not consistent with the Clean Air Act (CAA). VerDate Aug<18>2005 16:11 Aug 25, 2005 Jkt 205001 Response: In the final decision on October 28, 2003, by the United States Court of Appeals, Fifth Circuit, the Court said EPA’s VMEP policy is a reasonable interpretation of the statute. [See BCCA Appeal Group v. EPA, 355 F.3 817 (5th Cir. 2003)]. EPA determined and the Court agreed, ‘‘* * * that Texas had made the required commitments to monitor, assess, report, and remedy any credit shortfall from the VMEP measures in accordance with EPA guidance and that these commitments satisfied the enforceability requirements of the CAA.’’ Id, at 847. Therefore, the VMEP guidance, which is part of the VMEP policy is consistent with the CAA. Comment: EPA’s proposed approval of VMEP Measures for SIP credit is unlawful. The identified voluntary measures, or any voluntary measures do not provide the certainty, enforceability, quantifiability, replicability, permanency, and accountability required for SIP attainment demonstrations. Response: EPA disagrees with the comment, and continues to believe that the voluntary measures proposed by Texas for inclusion in the SIP are approvable under the Act. EPA acknowledges that by themselves the measures would not be approvable, because as noted by the commenter they are not enforceable against the entities producing the emissions reductions and thus do not meet the enforceability requirement of section 110(a)(2)(A). However, EPA did not propose to approve the measures by themselves. EPA proposed to approve them only in conjunction with an enforceable commitment by the state of Texas to monitor implementation of the voluntary measures, determine whether the anticipated reductions from the measures were in fact achieved, and if not to either alter the program such that the requisite reductions will be achieved, adopt substitute measures, or demonstrate that the attainment and maintenance goals of the ozone SIP can PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 still be met without the reductions from these measures. Thus, EPA did not propose to approve voluntary measures as satisfying the enforceability requirements of section 110. Rather, EPA proposed to approve the voluntary programs into the SIP as part of the overall attainment plan, and proposed to approve the state’s enforceable commitment to monitor, assess, and rectify any shortfall as meeting the enforceability requirements of the Act. EPA continues to believe that this approach is a proper means of encouraging implementation of innovative mobile source control measures while providing an enforceable SIP backstop measure. Ideally, the voluntary measures will produce the estimated emissions reductions without need for any state backfill or Federal or citizen enforcement. However, should any shortfall result, Texas will be bound by the enforceable SIP commitment to rectify the problem and supply the necessary emissions reductions. Both EPA and private citizens retain all of their rights under sections 113 and 304 to bring appropriate enforcement pressure to bear against the state should Texas fail to monitor, assess or fill any shortfall in emissions reductions resulting from implementation of the voluntary measures in the SIP. Contrary to the commenter’s allegations, the emissions reductions associated with the voluntary measures in the Dallas SIP are required to be achieved; it is however the state and not the individuals implementing the voluntary measures who must ultimately produce them. Comment: The commenter raises numerous arguments concerning the unenforceability of the voluntary measures, which will be addressed below. However, the commenter makes no mention of the enforceable State commitment other than to refer to it as insufficient. This statement without further explanation does not give EPA any guidance on the alleged inadequacy E:\FR\FM\26AUR1.SGM 26AUR1 50210 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations of the commitment nor how the commenter would have EPA improve upon it. Response: EPA continues to maintain that the commitment is approvable as meeting the enforceability requirements of the Act. In the past, EPA has often approved enforceable state commitments to take future actions under the SIP, and these actions have been enforced by courts against states that have failed to comply with those commitments. See, Trustees for Alaska v. Fink, 17 F.3d 1209 (9th Cir. 1994); Coalition Against Columbus Center v. City of New York, 967 F.2d 764 (2d Cir. 1992); Citizens for a Better Environment v. Deukmejian, 731 F.Supp. 1448, reconsideration granted in part, 746 F.Supp. 976 (N.D. Cal. 1990); American Lung Ass’n of New Jersey v. Keane, 871 F.2d 319 (3d Cir. 1989); NRDC v. New York State Department of Environmental Conservation, 668 F.Supp. 848 (S.D.N.Y. 1987); Council of Commuter Organizations v. Gorsuch, 683 F.2d 648 (2d Cir. 1982) and Friends of the Earth v. EPA, 499 F.2d.-1118 (2d Cir. 1974) . EPA believes that the Texas commitments associated with the voluntary measures portion of the SIP are similarly enforceable and thus approvable. Comment: The commenter alleges that the Act requires all control measures to be enforceable against individual polluters and not just against states. Response: Many mobile source control measures are enforceable only against the state or local transit operator, and not the individual entities actually producing the emissions reductions, e.g., state obligations to establish vehicle inspection and maintenance programs or to purchase buses or expand transit systems. The Clean Air Act does not require Federal enforcement capability against individual vehicle owners or transit users prior to approval of such programs into the SIP.2 Comment: The commenter alleges that the public cannot adequately monitor implementation of the voluntary measures nor determine whether the emissions reductions are achieved. Response: Texas is required by its enforceable commitment to do just that, and will make such assessments available to the public in the normal course of administrative practice. The 2 The Act does require that enhanced I/M programs include state enforcement through denial of vehicle registration without proof of compliance with inspection requirements. However, the enforceable SIP requirement is to develop a program that includes registration denial, and any enforcement would be against the state for failing to deny registration. The Act does not contemplate enforcement actions against individual vehicle owners attempting to register their vehicles. VerDate Aug<18>2005 16:11 Aug 25, 2005 Jkt 205001 VMEP measures adopted by the state covering the Dallas-Fort Worth nonattainment area are available to the public on the agency’s Web site. Citizens may check on the measures enacted by the TCEQ at the following link: http://www.tnrcc.state.tx.us/oprd/ sips/sipdfw.html. Paper copies are also available upon request by contacting Ms. Kelly Keel of the Air Quality Planning and Implementation Division at the TCEQ’s Chief Engineer’s Office. Ms Keel may be reached at 512–239–3607 or kkeel@tceq.state.tx.us. Because VMEP measures are local initiatives, citizens may check on the implemenation of each measure by contacting the region’s transportation planners, the North Central Texas Council of Governments (NCTCOG). VMEP measures are proposed and implemented by local sponsors. Comment: The commenter also claims that the state itself has raised concerns about the emissions reductions that will be achieved from these measures. Response: Such concerns may be valid, but notwithstanding Texas has made a commitment to fill any shortfall in emissions, which both EPA and citizens can enforce under the Act. The State relies on reports from the NCTCOG regarding implementation of each VMEP measure. The TCEQ has received no reports from the NCTCOG regarding problems with implementing the VMEP measures enacted in the SIP. Therefore, the State does not believe there is a gap that needs to be backfilled with other emission reduction measures. Comment: The commenter makes various arguments about the unacceptability of the voluntary measures program stemming from the stationary source permitting program under Title V of the Act. Response: Title V is totally irrelevant to these mobile source programs. The voluntary measures program Texas has included in the Dallas SIP applies only to mobile sources that are not subject to regulation under the Title V stationary source permitting program. Comment: The commenter also argues that EPA can not alter its past interpretations without completing notice-and-comment rulemaking. Response: EPA believes that this action is consistent with its past interpretations that enforceable state commitments to take future action are approvable SIP measures. For example, see EPA actions approving California plans at 62 FR 1150 ( January 8, 1997) and 65 FR 18903 (April 10, 2000), and the Houston Attainment Demonstration at 66 FR 57160 (November 14, 2001). In PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 addition, this action is consistent with the guidance cited in section IV of this document that EPA issued in 1997 indicating its belief that voluntary programs could be approved in conjunction with enforceable state commitments to fill any resultant shortfall. The individual SIP approval actions implementing the VMEP guidance constitute the notice-andcomment rulemaking required to effectuate action under the guidance. Thus, this SIP rulemaking satisfies both CAA and APA rulemaking requirements with respect to final interpretations of the Act consistent with the guidance. Comment: The commenter alleges that EPA may not alter interpretations of the Administrator through SIP rulemaking signed by the Regional Administrator. Response: The Administrator has properly delegated the authority for SIP rulemakings to the Regional Administrators under Delegation 7–10 dated May 6, 1997, and section 301(a)(1) of the Act. Thus, the Regional Administrators are authorized to act for the Administrator with respect to all matters pertaining to SIP approvals, including interpretations of the Act relevant to a given SIP approval. Additionally, as we stated in the previous response, this action is consistent with EPA’s past interpretations that enforceable state commitments to take future action are approvable SIP measures. Compliance with voluntary programs is ensured through the enforceable state commitments to fill any resultant shortfall. Comment: The commenter questions the 3% limit on voluntary measures, arguing that this limit itself implicitly acknowledges that such measures are not approvable. Response: EPA did not impose the 3% limit because it believed the measures to be suspect, but rather, as noted in the VMEP guidance, based this decision on the innovative nature of the measures and the agency’s lack of experience both with implementation and calculating appropriate credit for such measures. Therefore, EPA created the 3% limit as a policy matter, indicating in the guidance that it did not think it would be appropriate to approve a greater percentage while the agency begins to implement the program. EPA further indicated that it would reassess the limit after several years of experience with the program. Since all VMEP measures would be approved only with enfoceable state commitments to fill any resultant shortfall, EPA felt confident that including voluntary programs up to 3% of required emissions reductions in SIPs would not jeopardize attainment E:\FR\FM\26AUR1.SGM 26AUR1 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations and maintenance goals during initial implementation under the policy. Further, EPA did not indicate that 3% of required emissions reductions could be considered de minimis, as the commenter implies. EPA agrees with the commenter that it should not conclude in advance that any given percentage of emissions reduction could be considered per se de minimis for all areas and types of SIPs. Any conclusion about the de minimis nature of required emission reductions should be made in light of the specific circumstances of the areas and CAA requirements at issue. Therefore, all of the commenter’s arguments relating to the availability of a de minimis exemption and the need for notice-and-comment rulemaking to effectuate it are not relevant to EPA’s approval of the voluntary measures in the Dallas SIP. Comment: NRDC claims the record is insufficient to support our credit claims. Response: EPA reviewed the documentation for each measure of the VMEP. We found that for each measure the documentation was acceptable to demonstrate that the criteria for approval were met. For each measure the State was able to show that the measure plus the State commitment was quantifiable, surplus, enforceable, permanent, and adequately supported. In addition this SIP contained a firm commitment to cover any shortfall by supplementing additional TCMs that are in addition to those already credited to the SIP. Comment: In its conclusion the commenter refers in passing to delays that may result from identifying and rectifying emissions shortfalls. Response: EPA acknowledges that reductions will be somewhat delayed where states must first monitor and assess implementation and subsequently implement corrections. For this reason EPA indicated in the VMEP guidance that states should fill any shortfalls in a timely fashion. EPA issued a companion voluntary measures policy for stationary sources.3 In that policy EPA indicated that where voluntary measures were included in attainment or rate of progress SIPs, any shortfalls would have to be filled prior to the relevant attainment or progress milestone date. EPA believes this is an appropriate interpretation of the requirement to fill shortfalls in a timely fashion under the VMEP policy. Similarly, the same process is described 3 Memorandum from John Seitz, Director, Office of Air Quality Planning and Standards, dated January 19, 2001, entitled ‘‘Stationary Source Voluntary Measures Final Policy.’’ VerDate Aug<18>2005 16:11 Aug 25, 2005 Jkt 205001 in the recently issued umbrella policy for use of voluntary measures in SIPs.4 VII. EPA’s Final Rulemaking Action The DFW VMEP meets the criteria for credit in the SIP. The State has shown that the credits are quantifiable, surplus, enforceable, permanent, adequately supported, and consistent with the SIP and the Act. We are granting final approval of the VMEP into the DFW SIP. VIII. 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 4 ‘‘Incorporating Voluntary Measures in a State Implementation Plan,’’ September 2004. PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 50211 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. 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). 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 October 25, 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).) E:\FR\FM\26AUR1.SGM 26AUR1 50212 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: August 12, 2005. Richard E. Greene, Regional Administrator, Region 6. ■ Subpart SS—Texas 2. In § 52.2270, the table in paragraph (e) entitled ‘‘EPA Approved Nonregulatory Provisions and QuasiRegulatory Measures in the Texas SIP’’ is amended by adding one new entry to the end of the table to read as follows: ■ 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: ■ § 52.2270 * Authority: 42 U.S.C. 7401 et seq. Identification of plan. * * (e) * * * * * EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP * Voluntary Mobile Emission Program. * * Dallas/Fort Worth, TX ........................ [FR Doc. 05–17030 Filed 8–25–05; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [R10–OAR–2005–WA–0005; FRL–7959–6] Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes: Wallula, WA, Area Environmental Protection Agency. ACTION: Final rule. AGENCY: 16:11 Aug 25, 2005 Jkt 205001 EPA approval date * 4/25/00 Comments * * 8/26/05, [Insert FR page number where document begins]. * hours at the following locations: EPA, Office of Air, Waste, and Toxics (AWT– 107), 1200 Sixth Avenue, Seattle, Washington 98101. Interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day. A reasonable fee may be charged for copies. FOR FURTHER INFORMATION CONTACT: Donna Deneen, Office of Air, Waste, and Toxics (AWT–107), EPA Region 10, 1200 Sixth Avenue, Seattle, Washington, 98101, (206) 553–6706. SUPPLEMENTARY INFORMATION: Table of Contents The Environmental Protection Agency (EPA or Agency) is taking final action to approve a PM10 State Implementation Plan (SIP) maintenance plan revision for the Wallula, Washington nonattainment area and to redesignate the area from nonattainment to attainment. PM10 air pollution is suspended particulate matter with a nominal diameter less than or equal to a nominal ten micromenters. We are approving the maintenance plan revision and redesignation request because the State has adequately demonstrated that the control measures being implemented in the Wallula area will result in maintenance of the PM10 National Ambient Air Quality Standards and that all other requirements of the Clean Air Act for redesignation to attainment have been met. DATES: Effective September 26, 2005. ADDRESSES: Copies of the State’s request and other supporting information used in developing this action are available for inspection during normal business SUMMARY: VerDate Aug<18>2005 State submittal/effective date Applicable geographic or nonattainment area Name of SIP provision I. What Is the Background of This Rulemaking? II. What Comments Did We Receive on the Proposed Action? III. What Is Our Final Action? IV. Statutory and Executive Order Reviews I. What Is the Background of This Rulemaking? On July 1, 2005, we proposed to approve a State Implementation Plan (SIP) maintenance plan revision and redesignation request, dated March 29, 2005, from the Director of the Washington State Department of Ecology (Ecology) for the Wallula PM– 10 nonattainment area. 70 FR 38073. We proposed our approval based on the State’s demonstration that the control measures being implemented in the Wallula area would result in maintenance of the PM10 National Ambient Air Quality Standards and that all other Clean Air Act requirements for redesignation to attainment have been met. See the proposed action for a full description of how the maintenance PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 plan and redesignation request meet Clean Air Act requirements. II. What Comments Did We Receive on the Proposed Action? EPA provided a 30-day review and comment period on the proposal published in the Federal Register on July 1, 2005 (70 FR 38073). We received no comments on our proposed rulemaking. III. What Is Our Final Action? We are taking final action to approve the Wallula PM10 maintenance plan and redesignate the Wallula nonattainment area to attainment for PM10. IV. 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 E:\FR\FM\26AUR1.SGM 26AUR1

Agencies

[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Rules and Regulations]
[Pages 50208-50212]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-17030]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX 126-1-7690; FRL-7960-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Dallas-Fort Worth Voluntary Mobile Emission Reduction Program

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. This revision approves the Dallas-Fort 
Worth (DFW) Voluntary Mobile Emission Reduction Program (VMEP) which is 
relied upon to achieve the National Ambient Air Quality Standard 
(NAAQS) for ozone in the DFW nonattainment area.

DATES: This rule is effective on September 26, 2005.

ADDRESSES: Copies of the documents relevant to this action are in the 
official file which is available at the Air Planning Section (6PD-L), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202-2733. 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.
    Copies of any State submittals and EPA's technical support document 
are also available for public inspection at the State Air Agency listed 
below during official business hours by appointment: Texas Commission 
on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, 
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: 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 of Topics

I. What Action Is EPA Taking and Why?
II. What Are the Federal Requirements?
III. What Is the Background for This Action?
IV. What Did the State Submit?
V. What Does the DFW VMEP Include?
VI. What Comments Did EPA Receive in Response to the January 18, 
2001, Proposed Rule?
VII. EPA's Final Rulemaking Action
VIII. Statutory and Executive Order Reviews

I. What Action Is EPA Taking and Why?

    We are approving the DFW VMEP into the Texas SIP. We are taking 
this action because the State submitted a SIP revision that relies on 
the VMEP to achieve the NAAQS in the DFW ozone nonattainment area.

II. What Are the Federal Requirements?

    Section 172 of the Act provides the general requirements for 
nonattainment plans. Section 172(c)(6) and section 110 require SIPs to 
include enforceable emission limitations, and such other control 
measures, means or techniques as well as schedules and timetables for 
compliance, as may be necessary to provide for attainment by the 
applicable attainment date. Today's action involves approval of one of 
a collection of controls adopted by the State to achieve the ozone 
standard in the DFW nonattainment area as required under section 172. 
EPA approval of this SIP revision is governed by section 110 of the 
Act.

III. What Is the Background for This Action?

    In the Federal Register published on January 18, 2001 (66 FR 4756) 
we proposed to approve a Voluntary Mobile Emissions Reduction Program 
(VMEP) in nine counties (including the DFW 4-county area) as local 
initiatives. The counties are Collin, Dallas, Denton, and Tarrant along 
with the surrounding counties of Ellis, Johnson, Kaufman, Parker, and 
Rockwall.
    Voluntary mobile source strategies that attempt to complement 
existing regulatory programs through voluntary, non-regulatory changes 
in local transportation activities or changes in in-use vehicle and 
engine composition constitute the VMEP. EPA concludes that the Clean 
Air Act allows SIP credit for new approaches to reducing mobile source 
emissions. This flexible approach is consistent with section 110. Up to 
3% of the total future year emissions reductions required to attain the 
appropriate NAAQS may be claimed under the VMEP policy.\1\
---------------------------------------------------------------------------

    \1\ Memorandum from Richard D. Wilson, Acting Assistant 
Administrator for Air and Radiation, dated October 24, 1997, 
entitled ``Guidance on Incorporating Voluntary Mobile Source 
Emission Reduction Programs in State Implementation Plans (SIPs).''
---------------------------------------------------------------------------

    Specifically, the guidance suggests key points be considered for 
approval of credits. The credits should be quantifiable, surplus, 
enforceable, permanent, and adequately supported. The State must timely 
assess and backfill any shortfall pursuant to enforceable commitments 
in the SIP in the event that the projected emission reductions are not 
achieved. In addition, VMEPs must be consistent with attainment of the 
standard and with the Rate of Progress requirements and not interfere 
with other Clean Air Act requirements.

IV. What Did the State Submit?

    The State submitted program descriptions that projected emission 
reductions attributable to each specific voluntary program. These 
program descriptions were included in the DFW 1-hour ozone SIP revision 
submitted April 25, 2000.

V. What Does the DFW VMEP Include?

    The following Table lists the programs and projected credits. 
Programs submitted with no credit assigned are also listed.

    Voluntary Mobile Emission Reduction Programs and Credits Claimed
------------------------------------------------------------------------
                                           VOC benefits    NOX benefits
              Program type                (tons per day)  (tons per day)
------------------------------------------------------------------------
Alternative Fuel Program................            0.18            0.18
Employee Trip Reduction.................            0.29            0.53
Public Education Campaign/Ozone Season              0.08            0.15
 Fare Reduction.........................

[[Page 50209]]

 
Tier II Locomotive Engines..............           0-0.6           0-3.0
Vehicle Retirement Program/Vehicle                  0.56            0.77
 Maintenance *..........................
Sustainable Development.................  ..............  ..............
Non-Road Ozone Season Reductions........  ..............  ..............
Off-Road Heavy Duty Diesel Engine         ..............  ..............
 Retrofits..............................
                                         -----------------
    Total Benefits (tpd)................       1.11-1.71      1.63-4.63
------------------------------------------------------------------------
\*\Emission benefits quantified for the Vehicle Retirement Program only.
  Emission benefits for Vehicle Maintenance are credited in the Vehicle
  Inspection and Maintenance Program.

    The State commits to evaluating each program to validate estimated 
credits, to evaluating and reporting on the program implementation and 
results, and to timely remedy any credit shortfall. The State also 
commits to additional Transportation Control Measures (TCMs) that can 
be substituted for any shortfall in credit from the estimated credits 
for VMEP. These include Signal Improvements and Freeway Corridor 
Management.
    EPA's analysis of all the VMEP measures shows that each creditable 
measure could be quantified. The reductions are surplus by not being 
substitutes for mandatory, required emission reductions. The SIP with 
voluntary measures is enforceable because the state has committed to 
fill any shortfall in credit, thus any enforcement will be against the 
State. The reductions will continue at least for as long as the time 
period in which they are used by a SIP demonstration, so they are 
considered permanent. Each measure is adequately supported by personnel 
and program resources for implementation. The State's goal is 5.0 tons 
per day of NOX benefit from the VMEP program.

VI. What Comments Did EPA Receive in Response to the January 18, 2001, 
Proposed Rule?

    Comments were submitted by the Natural Resources Defense Council 
(NRDC).
    Comment: The NRDC supports the objectives of the voluntary 
initiatives identified in the proposal. They hope that greater 
employment of these measures will promote greater public awareness of 
the area's severe air pollution problems and that these measures will 
bring about emissions reductions that will lead to healthy air.
    Response: We appreciate the positive comments about the voluntary 
initiatives in the VMEP.
    Comment: EPA's VMEP guidance document is not consistent with the 
Clean Air Act (CAA).
    Response: In the final decision on October 28, 2003, by the United 
States Court of Appeals, Fifth Circuit, the Court said EPA's VMEP 
policy is a reasonable interpretation of the statute. [See BCCA Appeal 
Group v. EPA, 355 F.3 817 (5th Cir. 2003)]. EPA determined and the 
Court agreed, ``* * * that Texas had made the required commitments to 
monitor, assess, report, and remedy any credit shortfall from the VMEP 
measures in accordance with EPA guidance and that these commitments 
satisfied the enforceability requirements of the CAA.'' Id, at 847. 
Therefore, the VMEP guidance, which is part of the VMEP policy is 
consistent with the CAA.
    Comment: EPA's proposed approval of VMEP Measures for SIP credit is 
unlawful. The identified voluntary measures, or any voluntary measures 
do not provide the certainty, enforceability, quantifiability, 
replicability, permanency, and accountability required for SIP 
attainment demonstrations.
    Response: EPA disagrees with the comment, and continues to believe 
that the voluntary measures proposed by Texas for inclusion in the SIP 
are approvable under the Act. EPA acknowledges that by themselves the 
measures would not be approvable, because as noted by the commenter 
they are not enforceable against the entities producing the emissions 
reductions and thus do not meet the enforceability requirement of 
section 110(a)(2)(A). However, EPA did not propose to approve the 
measures by themselves. EPA proposed to approve them only in 
conjunction with an enforceable commitment by the state of Texas to 
monitor implementation of the voluntary measures, determine whether the 
anticipated reductions from the measures were in fact achieved, and if 
not to either alter the program such that the requisite reductions will 
be achieved, adopt substitute measures, or demonstrate that the 
attainment and maintenance goals of the ozone SIP can still be met 
without the reductions from these measures. Thus, EPA did not propose 
to approve voluntary measures as satisfying the enforceability 
requirements of section 110. Rather, EPA proposed to approve the 
voluntary programs into the SIP as part of the overall attainment plan, 
and proposed to approve the state's enforceable commitment to monitor, 
assess, and rectify any shortfall as meeting the enforceability 
requirements of the Act.
    EPA continues to believe that this approach is a proper means of 
encouraging implementation of innovative mobile source control measures 
while providing an enforceable SIP backstop measure. Ideally, the 
voluntary measures will produce the estimated emissions reductions 
without need for any state backfill or Federal or citizen enforcement. 
However, should any shortfall result, Texas will be bound by the 
enforceable SIP commitment to rectify the problem and supply the 
necessary emissions reductions. Both EPA and private citizens retain 
all of their rights under sections 113 and 304 to bring appropriate 
enforcement pressure to bear against the state should Texas fail to 
monitor, assess or fill any shortfall in emissions reductions resulting 
from implementation of the voluntary measures in the SIP. Contrary to 
the commenter's allegations, the emissions reductions associated with 
the voluntary measures in the Dallas SIP are required to be achieved; 
it is however the state and not the individuals implementing the 
voluntary measures who must ultimately produce them.
    Comment: The commenter raises numerous arguments concerning the 
unenforceability of the voluntary measures, which will be addressed 
below. However, the commenter makes no mention of the enforceable State 
commitment other than to refer to it as insufficient. This statement 
without further explanation does not give EPA any guidance on the 
alleged inadequacy

[[Page 50210]]

of the commitment nor how the commenter would have EPA improve upon it.
    Response: EPA continues to maintain that the commitment is 
approvable as meeting the enforceability requirements of the Act. In 
the past, EPA has often approved enforceable state commitments to take 
future actions under the SIP, and these actions have been enforced by 
courts against states that have failed to comply with those 
commitments. See, Trustees for Alaska v. Fink, 17 F.3d 1209 (9th Cir. 
1994); Coalition Against Columbus Center v. City of New York, 967 F.2d 
764 (2d Cir. 1992); Citizens for a Better Environment v. Deukmejian, 
731 F.Supp. 1448, reconsideration granted in part, 746 F.Supp. 976 
(N.D. Cal. 1990); American Lung Ass'n of New Jersey v. Keane, 871 F.2d 
319 (3d Cir. 1989); NRDC v. New York State Department of Environmental 
Conservation, 668 F.Supp. 848 (S.D.N.Y. 1987); Council of Commuter 
Organizations v. Gorsuch, 683 F.2d 648 (2d Cir. 1982) and Friends of 
the Earth v. EPA, 499 F.2d.-1118 (2d Cir. 1974) . EPA believes that the 
Texas commitments associated with the voluntary measures portion of the 
SIP are similarly enforceable and thus approvable.
    Comment: The commenter alleges that the Act requires all control 
measures to be enforceable against individual polluters and not just 
against states.
    Response: Many mobile source control measures are enforceable only 
against the state or local transit operator, and not the individual 
entities actually producing the emissions reductions, e.g., state 
obligations to establish vehicle inspection and maintenance programs or 
to purchase buses or expand transit systems. The Clean Air Act does not 
require Federal enforcement capability against individual vehicle 
owners or transit users prior to approval of such programs into the 
SIP.\2\
---------------------------------------------------------------------------

    \2\ The Act does require that enhanced I/M programs include 
state enforcement through denial of vehicle registration without 
proof of compliance with inspection requirements. However, the 
enforceable SIP requirement is to develop a program that includes 
registration denial, and any enforcement would be against the state 
for failing to deny registration. The Act does not contemplate 
enforcement actions against individual vehicle owners attempting to 
register their vehicles.
---------------------------------------------------------------------------

    Comment: The commenter alleges that the public cannot adequately 
monitor implementation of the voluntary measures nor determine whether 
the emissions reductions are achieved.
    Response: Texas is required by its enforceable commitment to do 
just that, and will make such assessments available to the public in 
the normal course of administrative practice. The VMEP measures adopted 
by the state covering the Dallas-Fort Worth nonattainment area are 
available to the public on the agency's Web site. Citizens may check on 
the measures enacted by the TCEQ at the following link: http://
www.tnrcc.state.tx.us/oprd/sips/sipdfw.html.
    Paper copies are also available upon request by contacting Ms. 
Kelly Keel of the Air Quality Planning and Implementation Division at 
the TCEQ's Chief Engineer's Office. Ms Keel may be reached at 512-239-
3607 or kkeel@tceq.state.tx.us.
    Because VMEP measures are local initiatives, citizens may check on 
the implemenation of each measure by contacting the region's 
transportation planners, the North Central Texas Council of Governments 
(NCTCOG). VMEP measures are proposed and implemented by local sponsors.
    Comment: The commenter also claims that the state itself has raised 
concerns about the emissions reductions that will be achieved from 
these measures.
    Response: Such concerns may be valid, but notwithstanding Texas has 
made a commitment to fill any shortfall in emissions, which both EPA 
and citizens can enforce under the Act. The State relies on reports 
from the NCTCOG regarding implementation of each VMEP measure. The TCEQ 
has received no reports from the NCTCOG regarding problems with 
implementing the VMEP measures enacted in the SIP. Therefore, the State 
does not believe there is a gap that needs to be backfilled with other 
emission reduction measures.
    Comment: The commenter makes various arguments about the 
unacceptability of the voluntary measures program stemming from the 
stationary source permitting program under Title V of the Act.
    Response: Title V is totally irrelevant to these mobile source 
programs. The voluntary measures program Texas has included in the 
Dallas SIP applies only to mobile sources that are not subject to 
regulation under the Title V stationary source permitting program.
    Comment: The commenter also argues that EPA can not alter its past 
interpretations without completing notice-and-comment rulemaking.
    Response: EPA believes that this action is consistent with its past 
interpretations that enforceable state commitments to take future 
action are approvable SIP measures. For example, see EPA actions 
approving California plans at 62 FR 1150 ( January 8, 1997) and 65 FR 
18903 (April 10, 2000), and the Houston Attainment Demonstration at 66 
FR 57160 (November 14, 2001). In addition, this action is consistent 
with the guidance cited in section IV of this document that EPA issued 
in 1997 indicating its belief that voluntary programs could be approved 
in conjunction with enforceable state commitments to fill any resultant 
shortfall. The individual SIP approval actions implementing the VMEP 
guidance constitute the notice-and-comment rulemaking required to 
effectuate action under the guidance. Thus, this SIP rulemaking 
satisfies both CAA and APA rulemaking requirements with respect to 
final interpretations of the Act consistent with the guidance.
    Comment: The commenter alleges that EPA may not alter 
interpretations of the Administrator through SIP rulemaking signed by 
the Regional Administrator.
    Response: The Administrator has properly delegated the authority 
for SIP rulemakings to the Regional Administrators under Delegation 7-
10 dated May 6, 1997, and section 301(a)(1) of the Act. Thus, the 
Regional Administrators are authorized to act for the Administrator 
with respect to all matters pertaining to SIP approvals, including 
interpretations of the Act relevant to a given SIP approval. 
Additionally, as we stated in the previous response, this action is 
consistent with EPA's past interpretations that enforceable state 
commitments to take future action are approvable SIP measures. 
Compliance with voluntary programs is ensured through the enforceable 
state commitments to fill any resultant shortfall.
    Comment: The commenter questions the 3% limit on voluntary 
measures, arguing that this limit itself implicitly acknowledges that 
such measures are not approvable.
    Response: EPA did not impose the 3% limit because it believed the 
measures to be suspect, but rather, as noted in the VMEP guidance, 
based this decision on the innovative nature of the measures and the 
agency's lack of experience both with implementation and calculating 
appropriate credit for such measures. Therefore, EPA created the 3% 
limit as a policy matter, indicating in the guidance that it did not 
think it would be appropriate to approve a greater percentage while the 
agency begins to implement the program. EPA further indicated that it 
would reassess the limit after several years of experience with the 
program. Since all VMEP measures would be approved only with enfoceable 
state commitments to fill any resultant shortfall, EPA felt confident 
that including voluntary programs up to 3% of required emissions 
reductions in SIPs would not jeopardize attainment

[[Page 50211]]

and maintenance goals during initial implementation under the policy. 
Further, EPA did not indicate that 3% of required emissions reductions 
could be considered de minimis, as the commenter implies. EPA agrees 
with the commenter that it should not conclude in advance that any 
given percentage of emissions reduction could be considered per se de 
minimis for all areas and types of SIPs. Any conclusion about the de 
minimis nature of required emission reductions should be made in light 
of the specific circumstances of the areas and CAA requirements at 
issue. Therefore, all of the commenter's arguments relating to the 
availability of a de minimis exemption and the need for notice-and-
comment rulemaking to effectuate it are not relevant to EPA's approval 
of the voluntary measures in the Dallas SIP.
    Comment: NRDC claims the record is insufficient to support our 
credit claims.
    Response: EPA reviewed the documentation for each measure of the 
VMEP. We found that for each measure the documentation was acceptable 
to demonstrate that the criteria for approval were met. For each 
measure the State was able to show that the measure plus the State 
commitment was quantifiable, surplus, enforceable, permanent, and 
adequately supported. In addition this SIP contained a firm commitment 
to cover any shortfall by supplementing additional TCMs that are in 
addition to those already credited to the SIP.
    Comment: In its conclusion the commenter refers in passing to 
delays that may result from identifying and rectifying emissions 
shortfalls.
    Response: EPA acknowledges that reductions will be somewhat delayed 
where states must first monitor and assess implementation and 
subsequently implement corrections. For this reason EPA indicated in 
the VMEP guidance that states should fill any shortfalls in a timely 
fashion. EPA issued a companion voluntary measures policy for 
stationary sources.\3\ In that policy EPA indicated that where 
voluntary measures were included in attainment or rate of progress 
SIPs, any shortfalls would have to be filled prior to the relevant 
attainment or progress milestone date. EPA believes this is an 
appropriate interpretation of the requirement to fill shortfalls in a 
timely fashion under the VMEP policy. Similarly, the same process is 
described in the recently issued umbrella policy for use of voluntary 
measures in SIPs.\4\
---------------------------------------------------------------------------

    \3\ Memorandum from John Seitz, Director, Office of Air Quality 
Planning and Standards, dated January 19, 2001, entitled 
``Stationary Source Voluntary Measures Final Policy.''
    \4\ ``Incorporating Voluntary Measures in a State Implementation 
Plan,'' September 2004.
---------------------------------------------------------------------------

VII. EPA's Final Rulemaking Action

    The DFW VMEP meets the criteria for credit in the SIP. The State 
has shown that the credits are quantifiable, surplus, enforceable, 
permanent, adequately supported, and consistent with the SIP and the 
Act. We are granting final approval of the VMEP into the DFW SIP.

VIII. 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. 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).
    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 October 25, 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).)

[[Page 50212]]

List of Subjects in 40 CFR Part 52

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

    Dated: August 12, 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 in the Texas 
SIP'' is amended by adding one new entry to the end of the table to 
read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                             State
                                  Applicable geographic    submittal/
     Name of SIP provision        or  nonattainment area   effective      EPA approval date         Comments
                                                              date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Voluntary Mobile Emission        Dallas/Fort Worth, TX..      4/25/00  8/26/05, [Insert FR     .................
 Program.                                                               page number where
                                                                        document begins].
----------------------------------------------------------------------------------------------------------------

[FR Doc. 05-17030 Filed 8-25-05; 8:45 am]
BILLING CODE 6560-50-P