Approval and Promulgation of Implementation Plans; Texas; Houston/Galveston Ozone Nonattainment Area Vehicle Miles Traveled Offset Plan

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Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: July 10, 2001 (Volume 66, Number 132)]
[Rules and Regulations]
[Page 35903-35906]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jy01-8]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX 28-1-7382a; FRL-7008-3]

Approval and Promulgation of Implementation Plans; Texas;
Houston/Galveston Ozone Nonattainment Area Vehicle Miles Traveled
Offset Plan

AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.

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SUMMARY: In this direct final action, the EPA is approving the Texas
State Implementation Plan(SIP) for the Houston/Galveston Ozone
Nonattainment Area (HGA) Vehicle Miles Traveled (VMT) Offset Plan as
part of the State's effort to attain the National Ambient Air Quality
Standard (NAAQS) for ozone. The State demonstrated that emissions from
increases in VMT or numbers of vehicle trips within HGA will not rise
above an established ceiling by 2007; thereby not requiring additional
transportation control measure (TCM) offsets to prevent an increase in
VMT above the ceiling. This action replaces the October 21, 1997
proposed disapproval of the HGA VMT Offset SIP revision previously
submitted on August 16, 1994. This action is being taken under sections
110 and 182 of the Federal Clean Air Act, as amended (the Act).

DATES: This direct final rule is effective on September 10, 2001,
without further notice, unless EPA receives adverse comment by August
9, 2001. If significant adverse comment is received, EPA will publish a
timely withdrawal of the direct final rule in the Federal Register
informing the public that the rule will not take effect.

ADDRESSES: Written comments should be mailed to Thomas H. Diggs, Chief,
Air Planning Section (6PD-L), Environmental Protection Agency, Region
6, 1445 Ross Avenue, Suite 1200, Dallas, TX 75202-2377. Copies of the
relevant material for this notice are available for inspection during
normal business hours at the following locations. Persons interested in
examining these documents should make an appointment at least 24 hours
before the visiting day.
Environmental Protection Agency, Region 6, Air Planning Section
(6PD-L), 1445 Ross Avenue, Suite 700, Dallas, TX 75202-2377.
Texas Natural Resource Conservation Commission, 12100 Park 35
Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Brooke M. Ivener, Air Planning
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7362.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

1. Background
2. State Submittals
3. Analysis of 1997 VMT Plan
4. Comments on the Proposed Disapproval Action

Throughout this document ``we,'' ``us,'' and ``our'' means EPA.

1. Background

What Is a VMT SIP?
Section 182(d)(1)(A) of the Act requires states containing ozone
nonattainment areas classified as severe, pursuant to section 181(a) of
the Act, to adopt transportation control strategies and TCMs to offset
increases in emissions resulting from growth in VMT or numbers of
vehicle trips and to obtain reductions in motor vehicle emissions as
necessary (in combination with other emission reduction requirements)
to comply with the Act's Reasonable Further Progress milestones
(section 182(b)(1) and (c)(2)(B)) and attainment demonstration
requirements (section 182(c)(2)(A)). Our interpretation of section
182(d)(1)(A) is discussed in the April 16, 1992, General Preamble to
Title I of the Act (57 FR 13498, the General Preamble). Section
182(d)(1)(A) of the Act requires that states submit the VMT Offset SIP
by November 15, 1992, for any severe and above ozone nonattainment
area. Texas has one severe ozone nonattainment area, the HGA area, with
an attainment deadline of 2007.

2. State Submittals

Previous Submittals
On November 13, 1992, the State submitted a committal SIP to EPA
for VMT Offset for the HGA nonattainment area. The submittal committed
to submitting subsequent SIPs in 1993 and 1994 to parallel development
of the 15 percent Rate of Progress (ROP) SIP revision, and to parallel
the Post 1996 ROP SIP revision and the demonstration of attainment SIP
revision, both due November 1994. On November 12, 1993, and November 6,
1994, the State of Texas submitted revisions to the SIP for the VMT
Offset Plan to fulfill the committal SIP requirement. On October 21,
1997, EPA proposed disapproval of the 1993 and 1994 VMT Offset SIP
submittals (62 FR 54598). These submittals were no longer accurate
since the calculated vehicle emissions relied

[[Page 35904]]

upon programs no longer in effect; specifically, a centralized loaded
mode vehicle inspection and maintenance
(I/M) program and an Employer Trip Reduction (ETR) program. A complete
discussion of the background surrounding program changes is included in
the above referenced proposed disapproval action.
Current Submittal
The State subsequently submitted a SIP revision for VMT Offset on
August 25, 1997. The submittal was determined complete on December 10,
1997. For information regarding our analysis of the State submittal,
please refer to the Technical Support Document for this action. On May
17, 2000, the State submitted to the EPA a new SIP revision for VMT
Offset. This submittal does not contain any substantive changes and
does not affect any approval of the revision submitted on August 25,
1997. The State submitted the revision, which the State adopted on May
9, 2000, because the VMT Offset SIP references the TCM rules in 30 TAC
Sec. 114.270, which were reevaluated and renumbered. The discussion of
the VMT Offset SIP in this rule is therefore still in reference to the
August 25, 1997 submittal, as it is the substantive SIP revision
document on which this proposed approval is based.

3. Analysis of 1997 VMT Plan

How Is the VMT Offset Requirement Satisfied?
The EPA General Preamble (57 FR 13498, 13521-13523, April 16, 1992)
explains how to demonstrate that the VMT requirement is satisfied.
Sufficient measures must be adopted so projected motor vehicle volatile
organic compound (VOC) emissions will stay beneath a ceiling level
established through modeling of mandated transportation-related
controls. When growth in VMT and vehicle trips would otherwise cause a
motor vehicle emissions upturn, this upturn must be prevented by TCMs.
If projected total motor vehicle emissions during the ozone season in
one year are not higher than during the previous ozone season due to
the control measures in the SIP, the VMT Offset requirement is
satisfied. In order to make these projections, two curves of vehicle
emissions are modeled (please refer to Graph 1 in the Technical Support
Document). The upper curve profiles the effects of required reductions
from the following mandatory programs: a low-enhanced performance
standard vehicle I/M program, Reid Vapor Pressure (RVP) controls, and
reformulated gasoline. The lower curve depicts the control strategy
program and includes the effects not only of the mandated controls, but
also of the Motorist Choice I/M program and TCMs.
What Does Texas' Demonstration Show?
The August 25, 1997, VMT SIP submittal includes a projection of the
mobile source emissions profile for HGA through 2007, the date by which
the HGA area is to attain the NAAQS for ozone. It also contains an
upper curve modeled scenario that includes the effects of required
reductions from the following mandatory programs: a Low-Enhanced
Performance Standard I/M program, Phase II RVP controls, reformulated
gasoline, and the Federal Vehicle Control Program (FMVCP) for new
vehicles, including the Tier I FMVCP standard. The lower curve, which
depicts the control strategy program, includes the Motorist Choice I/M
program, Phase II RVP controls, reformulated gasoline, the FMVCP, and
certain TCMs.
What TCMs Are Part of the VMT Offset SIP?
The Transportation Policy Council for the HGA Transportation
Management Area adopted, through resolution on September 29, 1995, TCM
commitments in the 1996-1997 Transportation Implementation Project and
the 2020 Metropolitan Transportation Plan. These TCMs were included in
the 15% ROP Plan and the Post 1996 ROP Plan submitted on July 24, 1996,
and have been included in the VMT Offset SIP as measurable emission
reduction credits.
The TCM commitments for Fiscal Year (FY) 1996 include 14.7 miles of
High Occupancy Vehicle (HOV) Lanes, 3,745 parking spaces in Park-and-
Ride Lots, 41 miles of Arterial Traffic Management Systems, 22.2 miles
of Computer Transportation Management Systems, and 2.9 miles of
signalization.
Although not credited for the VMT Offset SIP demonstrations, as
explained below, the TCMs for FY 1999 include 3.2 miles of Accident
Investigation Sites, 65.8 miles of Arterial Traffic Management Systems,
262.3 miles of Bicycle Facilities, 70.3 miles of Computer
Transportation Management Systems, 3.5 miles of HOV lanes, 1643 Park
and Ride Lot spaces, 49.3 miles of signalization, and 225 Vanpool vans.
The TCMs for FY 2007 include 30.0 miles of Accident Investigation
Sites, 1.5 miles of Arterial Traffic Management Systems, and 59.5 miles
of Computer Transportation Management Systems.
EPA stated in its comment letter dated June 5, 1997, that any TCMs
for which Texas takes credit in the VMT SIP should be specifically
documented on a project-by-project basis. At the time of comment in
1997, the HGA Metropolitan Planning Organization (MPO) commited to TCM
reductions on a project category (e.g., HOV lanes) basis, not on a
project specific basis. Therefore, to resolve the dilemma, no future
credit is taken in the SIP for any TCMs committed for milestone years
after November 15, 1996. Thus, the lower curve includes only TCMs
through FY 1996. A detailed description of the FY 1996 TCM projects and
the associated implementation, and completion schedules is included in
an Appendix to the SIP. The EPA gave conditional interim approval of
these FY 1996 TCMs as part of the 15 percent ROP Plan on November 10,
1998 (62 FR 62943). It is worth mentioning here that later SIPs have
included additional TCMs which are not credited. This, in effect, means
that the VMT Offsets are, in actuality, even greater than accounted for
here.
Results of the Analysis
The modeled curves in Graph 1 satisfy the VMT Offset requirement as
discussed in the General Preamble. Modeling of the lower curve, at no
time, shows the emission estimates meeting or exceeding the lowest
point in the upper curve, reached in 2007. The upper curve reaches its
lowest point in 2007, so no upward turn is demonstrated in this
instance. The low point establishes the ceiling, but no true ceiling is
established in this demonstration because there is no upward turn of
the curve to identify the lowest point. Since the curve does not turn
upward (indicating the control programs are offsetting increases in
emission from growth in VMT) no TCMs would be necessary to offset
emissions from growth in VMT. The State, however, chose to include the
five FY 1996 TCMs anyway, although they are not necessary.
The TCMs selected reduce emissions associated with mobile sources
by relieving congestion, improving traffic flow, and decreasing idle
time. As required by section 182(d)(1)(A) of the Act, they neither
impede adequate access to downtown or other commercial and residential
areas nor increase or relocate emissions and congestion.
The August 25, 1997 submittal includes all elements required by the
Act to fulfill the requirements for a VMT Offset Plan in the HGA severe
ozone nonattainment area. It is worth noting that subsequent to the
submission of the VMT Offset plan, Texas has submitted additional
mobile source control

[[Page 35905]]

measures as part of its attainment plan. These include a more extensive
I/M program and a low emissions diesel requirement. Therefore, if these
additional control measures were factored in to the analysis, the area
would be able to demonstrate compliance by a wider margin.

4. Comments on the Proposed Disapproval Action

Three comments were received in response to the proposed
disapproval (referenced above) of the 1993 and 1994 submittals which
comprised the VMT Offset requirement. Two comments supported the
proposed disapproval because the SIP relied upon the repealed I/M and
ETR Programs. The SIP submittal being acted upon in this action does
not rely on those two programs. A third comment supported approval of
the August 1997 VMT Offset submittal. No other comments were received.

II. Final Action

The EPA has determined that Texas has adequately demonstrated that
emissions from growth in VMT and number of vehicle trips will not rise
above the ceiling. Therefore, we are approving the VMT Offset SIP,
submitted by the State on August 25, 1997 and with minor revisions
submitted on May 17, 2000, under sections 110 and 182 of the Act.
The EPA is publishing this rule without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the ``Proposed Rules'' section of today's Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if adverse comments
are received. This rule will be effective on September 10, 2001 without
further notice unless we receive adverse comment by August 9, 2001. If
EPA receives adverse comments, we will publish a timely withdrawal in
the Federal Register informing the public that the rule will not take
effect. We will address all public comments in a subsequent final rule
based on the proposed rule. We will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time.

III. Administrative Requirements

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. 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 (Public Law 104-4). For the same reason,
this rule also does not significantly or uniquely affect the
communities of tribal governments, as specified by Executive Order
13175 (59 FR 22951, November 9, 2000). This rule will 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),
because it 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 Act. This rule also is
not subject to Executive Order 13045 (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 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 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. The rule does not involve special
consideration of environmental justice related issues as required by
Executive Order 12898 (59 FR 7629, February 16,1994). As required by
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in
issuing this rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. The EPA has
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of the rule in accordance with the
``Attorney General's Supplemental Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings' issued under the executive
order. 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. The 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). This rule will be effective September 10, 2001 unless EPA
receives adverse written comments by August 9, 2001.
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 10, 2001. 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) of the Act.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.

Dated: June 13, 2001.
Jerry Clifford,
Acting Regional Administrator, Region 6.

Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

[[Page 35906]]

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

2. In Sec. 52.2270, paragraph (e), in the table entitled ``EPA
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the
Texas SIP,'' one entry is added to the end of the table to read as
follows:

Sec. 52.2270 Identification of plan.

* * * * *
(e) * * *

EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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Applicable State
Name of SIP provision geographic or submittal/ EPA approval date Comments
nonattainment area effective date
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* * * * * *
*
Vehicle Miles Traveled Offset Houston/Galveston 05/09/2000 July 10, 2001, 66 Originally
Plan. Ozone FR 35906. submitted 11/12/93
nonattainment area. and revised 11/06/
94, 8/25/97, and
05/17/00.
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