Approval and Promulgation of Implementation Plans for Texas: Transportation Control Measures Rule

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

[Federal Register: December 5, 2002 (Volume 67, Number 234)]
[Rules and Regulations]
[Page 72379-72383]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de02-11]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-127-1-7555; FRL-7416-5]

Approval and Promulgation of Implementation Plans for Texas:
Transportation Control Measures Rule

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: In this final action, the EPA is approving a revision to the
Texas State Implementation Plan (SIP) that contains the transportation
control measures (TCM) rule. The requirements in the State TCM rule
address the roles and responsibilities of the Metropolitan Planning
Organizations (MPO), implementing transportation agencies, and provide
a method for substitution of specific TCMs without a SIP revision in
the nonattainment and maintenance areas. The TCM rule is intended to
promote effective implementation of TCMs, provide consequences for non-
implementation, establish a streamline TCM substitution process and
approval, and increase interaction between the Texas Commission on
Environmental Quality (TCEQ) \1\ and the MPOs in the air quality
transportation planning process at the local levels. The EPA is
approving this SIP revision under section 110(k) and 182 of the Clean
Air Act (CAA). The rationale for the final approval action and other
information are provided in this document.
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\1\ Recently, this organization changed its name from Texas
Natural Resource Conservation Commission (TNRCC).

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EFFECTIVE DATE: This final rule is effective on January 6, 2003.

ADDRESSES: Copies of the relevant material for this action 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 Commission on Environmental Quality, 12100 Park 35 Circle,
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Joe Kordzi, Air Planning Section (6PD-
L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone
(214) 665-7186.

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

Table of Contents

I. What Is The Background for This Action?
II. What Did The State Submit and How Did We Evaluate It?
III. Responses To Comments On The Direct Final Action.
IV. What Is Our Final Action?
V. What administrative requirements apply for this action?

I. What Is the Background for This Action?

Section 182(d)(1)(A) of the CAA requires States containing ozone
nonattainment areas which are classified as ``severe'' pursuant to
section 181(a) of the CAA to adopt TCM and transportation control
strategies to offset any growth in emissions from growth in Vehicle
Miles Traveled (VMT) or number of vehicle trips and to attain
reductions in motor vehicle emissions (in combination with other
emission reduction requirements) as necessary to comply with the CAA's
Reasonable Further Progress (RFP) milestones and attainment
requirements. The requirements for establishing a VMT Offset program
are discussed in the General Preamble to Title I of the CAA (57 FR
13498), April 16, 1992, and in section 182(d)(1)(A).
In addition, the states may adopt TCMs as control strategies in
order to meet the requirements of sections 182(b) and 182(c) of the CAA
for RFP and attainment SIPs in the ozone nonattainment areas. The EPA
can only accept the emission credits resulting from such TCMs if the
State can provide adequate evidence that it will have authority to
enforce the TCMs which are identified as a part of the control strategy
in the RFP and attainment demonstration SIPs for meeting the ozone
standard.\2\ The State of Texas has adopted certain TCMs for meeting
the RFP and attainment demonstration requirements under sections 182(b)
and (c) of the CAA.
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\2\ See section 110(a)(2)(A) of the CAA.
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Our action today addresses the State's authority, processes,
procedures, and responsibilities of each agency regarding
implementation and substitution of the TCMs in any SIP in the
designated nonattainment or maintenance areas.

[[Page 72380]]

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

The Governor of Texas submitted the TCM SIP revision on May 17,
2000. The TCEQ adopted the Texas TCM rule on May 9, 2000, after
appropriate public notice and hearing. The TCM rule consists of two
parts. 30 Texas Administrative Code (TAC) Chapter 114 Section 114.5
includes ``Transportation Planning Definitions.'' 30 TAC Chapter 114
Section 114.270 contains ``Transportation Control Measures,'' which
addresses the roles and responsibilities of the MPOs and implementing
transportation agencies in nonattainment and maintenance areas and
provides a method for the substitution of TCMs. The TCEQ developed the
TCM rule in cooperation with the MPOs, the Texas Department of
Transportation, and in consultation with the Federal Highway
Administration, Federal Transit Administration, and the EPA. The State
TCM rule identifies the responsibility of each agency and sets forth
the procedures and processes for selection of the TCMs, inclusion in
the SIP, periodic reporting and record-keeping, corrective measures,
emissions reductions and TCM effectiveness, and consequences of non-
implementation. In addition, the rule specifically establishes
processes and procedures for substitution of any TCM in the SIP that
cannot be implemented for any reason by the implementation date in the
SIP. The TCM rule guarantees that substituted TCMs will be both
equivalent \3\ in terms of emissions, and enforceable.\4\ The
procedures for substitution of the TCMs require public notice and
comment period and consultation, but do not require a formal SIP
revision and approval by the EPA.
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\3\ 30 TAC section 114.270(f)(1)(A).
\4\ 30 TAC section 114.270(f)(1)(D).
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We have reviewed the State TCM processes and procedures, and we
have evaluated the provisions of the rule based on the criteria
provided in the CAA for development of SIPs in the nonattainment and
maintenance areas. We note that neither the CAA nor the EPA rules
require the State to develop, and submit as a SIP revision, a TCM rule.
Our evaluation is specifically based on sections 110, 176, 182, and
consistency of this rule with the CAA. Based on this review, we have
determined that the TCEQ's TCM rule provides adequate authority and
procedures for implementation and substitution of TCMs in the
designated nonattainment and maintenance areas including how
equivalency is determined, public participation and EPA concurrence.
Therefore, we are approving this SIP revision.

III. Responses to Comments on the Direct Final Action

On July 16, 2001, the EPA published a direct final rule approving
this revision to the Texas SIP containing the TCM rule. This rule
contained the condition that if any adverse comments were received by
the end of the public comment period on August 15, 2001, the direct
final rule would be withdrawn, and we would respond to the comments in
a subsequent final action. One set of comments was received from the
Committees for Land, Air, Water, and Species (CLAWS). The following
summarizes the comments and EPA's response to these comments:
Comment 1: This comment states that the criteria for when a TCM
substitution is appropriate must be specified. Substitution ``for any
reason'' is not appropriate. MPOs can simply evade non-implementation
issues through abuse of the substitution process.
Response: 30 TAC section 114.270(f)(1)(A) requires that a
substitute TCM provide for equivalent or greater emissions reductions
than the TCM to be replaced. EPA feels that this prevents MPOs from
either substituting a TCM with one that does not provide an equivalent
level of emissions reductions, or simply withdrawing or failing to
implement a TCM.
Furthermore, 30 TAC section 114.270(c) requires that all TCMs be
developed, coordinated, funded, approved, implemented, tracked,
evaluated, and monitored in accordance with 30 TAC section 114.260
(relating to Transportation Conformity); Title 40 Code of Federal
Regulations, part 93 (Conformity to State or Federal Implementation
Plans of Transportation Plans); the Federal Clean Air Act; and the EPA
TCM SIP approval criteria listed in the EPA guidance document
``Transportation Control Measures: State Implementation Plan Guidance,
EPA 450/2-89-020, September 1990.'' EPA believes that this ensures that
the TCM substitution process will be adequately monitored, tracked, and
if necessary properly enforced.
Comment 2: This comment states that the public should have a
representative in the working group that evaluates alternative TCMs.
Response: A public hearing is required by 30 TAC section
114.270(f)(5) prior to a substitution being made. The public will have
a minimum of 30 days prior to the hearing to submit comments. Comments
can also be submitted during the public hearing itself. EPA believes
that this affords the public ample opportunity to be engaged in the TCM
substitution process.
Comment 3: This comment states that EPA's concurrence period of 14
days is too short and unreasonable. The period should be at least 60
days. EPA must make an independent finding of TCM equivalency and
publish it in the Federal Register.
Response: As required by 30 TAC sections 114.270(f)(3), and
114.270(f)(4), in order to identify and evaluate possible substitute
TCMs, the MPO must form a committee or working group which will consult
with EPA Region 6. The MPO, the TCEQ, and the EPA Region 6 must concur
with the appropriateness and equivalency of the substitute TCM.
Consequently, EPA will be fully engaged in the TCM substitution process
prior to the final 14 day concurrence period cited in the comment, and
will have ample opportunity to conduct its analysis.
Regarding the second part of the question, EPA does not agree that
it must conduct future rulemaking on TCM substitution. In approving the
rule today as part of the Texas SIP, EPA finds that under the rule, all
TCM substitutions will produce equivalent emission reductions and meet
all TCM approval requirements or will be in violation of the approved
SIP. The principal reasons for the TCM substitution process are to (1)
allow MPOs flexibility in meeting emissions requirements, and (2) to
encourage the inclusion of TCMs in the SIP. EPA will be engaged in this
process to ensure TCM equivalency of any substitution. If EPA were to
publish each TCM finding in the Federal Register, along with the
presumed public comment period typical of such announcements, much of
the intended benefits of a streamlined TCM substitution process would
be lost. EPA believes that the State's requirements for a 30-day
comment period and public hearing already provide ample opportunity for
public involvement in the substitution process.
Comment 4: This comment states substitute TCM equivalency must be
evaluated in units of emissions reductions, VMT reductions, and trip
start reductions.
Response: As stated in the response to Comment 1, 30 TAC section
114.270(f)(1) (A) requires that a substitute TCM must provide for
equivalent or greater emissions reductions than the TCM to be replaced.
In addition 30 TAC section 114.270(f)(2) requires that the analysis of
substitute TCMs must be consistent with the methodology used for
evaluating TCMs

[[Page 72381]]

in the SIP, including the use of the latest emissions modeling
techniques. EPA believes that these requirements will ensure that TCM
equivalency will be adequately evaluated.
Comment 5: This comment states that any TCM substitution analysis
and evaluation must include a comparative environmental and social
justice impact process. An environmental justice representative should
be a member of the working group.
Response: EPA fully supports Executive Order 12898, concerning
environmental justice. In addition, the Federal Transit Administration
and the Federal Highway Administration each have environmental justice
policies, to which State Departments of Transportation that receive
federal funds must adhere.
The Agency defines environmental justice to mean the fair treatment
of people of all races, cultures, and incomes with respect to the
development, implementation, and enforcement of environmental laws and
policies, and their meaningful involvement in the decision making
processes of the government.
EPA encourages the MPO, in the formation of the committee or
working group that will evaluate possible substitute TCMs, (as required
by 30 TAC sections 114.270(f)(3)) to include representatives from the
portions of the community or communities affected by the TCM
substitution and those concerned about environmental justice issues.
EPA believes that since the public will have, as provided for by 30 TAC
section 114.270(f)(5), a minimum of 30 days prior to the hearing to
submit comments, and an opportunity to submit comments during the
public hearing itself, ample opportunity for meaningful public
involvement in the TCM substitution process will be provided.
Comment 6: This comment states the language concerning
``implementation date'' must be clarified. The initiation and full
implementation of substitute TCMs should be undertaken in the same time
frame as the original TCM. If this is not possible, the completion of
the substitute TCM's full implementation should occur at the same time
as the original TCM. If this is not possible, full implementation
should occur as expeditiously as practicable. Any temporal loss of
emissions reductions must be backfilled through ERC bank purchases or
other offsetting emissions reductions to meet SIP timetables for
emissions reductions.
Response: As required by 30 TAC sections 114.270(f)(1)(B) and
114.270(f)(1)(C), a substitute TCM must provide for implementation in
the time frame established for the TCM in the SIP. If the
implementation date has already passed, measures that require funding
must be included in the first year of the next transportation
improvement program and metropolitan transportation plan adopted by the
MPO. Full implementation must occur not later than two years from the
scheduled implementation date of the original TCM. EPA believes that
these requirements will ensure that substitute TCMs are implemented as
expeditiously as possible, therefore participation in an Emission
Reduction Credit (ERC) bank is unnecessary.
Comment 7: This comment states that the enforceability of the
substituted and substituting TCM is not evident from the rule. States
cannot unilaterally amend their SIPs and rescind a TCM.
Response: Regarding the enforceability issue, 30 TAC section
114.270(f)(1)(D) requires that a substitute TCM must provide for
evidence of adequate personnel, funding, and authority under state or
local law to implement, monitor, and enforce the measures in order for
the TCEQ to approve the substitute TCM. EPA believes that this will
ensure that the substituted and substituting TCM will be adequately
enforced. Additionally, both the EPA and citizens can take appropriate
action for any violation of the approved SIP, which includes violations
of the TCM substitution process under sections 113(a)(1), 113(a)(2),
and 304 of the CAA. Regarding the second part of the comment, the
purpose of the TCM substitution process is to allow substitutions,
through an approval process that has been approved into the SIP,
without having a separate federal SIP rulemaking. Also, the TCM
substitution process is not unilateral, in that the TCEQ, EPA, the MPO,
and the public are all involved, and the process has been approved into
the SIP as providing for both equivalency in terms of emissions and
enforceability of the substituted TCMs.
Comment 8: This comment states that EPA has not provided sufficient
analysis of the legal authority to approve such a rule. The CAA
requires all SIP measures to be enforceable at all times. The Federal
Register notice lacks essential analysis of the proposed action.
A related comment states that the proposed action has national
ramifications. While the benefits of flexibility in TCM implementation
are significant, this must comport with the requirements of the CAA. As
proposed, the rule fails to address enforceability and the issues noted
above.
Response: EPA believes that a replicable procedure for enforceable
TCM substitution is consistent with existing EPA SIP policy. As stated
in the Direct Final Rule (66 FR 36921, July 16, 2001) neither the CAA
nor the EPA rules require the State to develop, and submit as a SIP
revision, a TCM rule. This evaluation is specifically based on the
consistency of this rule with sections 110, 176, and 182 of the CAA.
Based on this review, we have determined that the TCEQ's TCM rule
provides adequate authority and procedures for implementation and
substitution of TCMs in the designated nonattainment and maintenance
areas including how equivalency is determined, public participation and
EPA concurrence. The issue of enforceability is addressed in the
response to Comment 7.

IV. What Is Our Final Action?

We are approving the Texas TCM rule which addresses the roles and
responsibilities of the MPOs, implementing transportation agencies, and
provides a method for substitution of the TCMs without a SIP revision
in the nonattainment and maintenance areas. We have evaluated this SIP
revision and have determined that the State's rules in TAC 30 Chapter
114 sections 114.5 and 114.270 provide adequate processes and
procedures consistent with the CAA for implementing, tracking, and
substitution of the TCMs, with equivalent control measures, which are
used as a control strategy in the SIPs for attainment and maintenance
of the NAAQS. The TCEQ conducted appropriate public participation
during development and adoption of this rule at the local level.

V. What Administrative Requirements Apply for This Action?

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

[[Page 72382]]

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
(59 FR 22951, 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 CAA.
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 CAA. 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 CAA. 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 3, 2003. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

Dated: November 21, 2002.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.

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

PART 52--[AMENDED]

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

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

Subpart SS--Texas

2. The table in Sec. 52.2270(c) entitled ``EPA Approved
Regulations in the Texas SIP'' is amended:
a. Under Chapter 114, Subchapter A, by adding new section 114.5,
Transportation Planning Definition, immediately following section
114.3;
b. Under Chapter 114, Subchapter G, by adding new section 114.270,
Transportation Control Measures, immediately after Section 114.260.

3. The table in Sec. 52.2270(e) entitled ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas
SIP'' is amended by adding to the end of the table an entry for
``Transportation Control Measures SIP Revision.''
The additions read as follows:

Sec. 52.2270 Identification of plan.

* * * * *
(c) * * *

EPA Approved Regulations in the Texas SIP
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State approval/ EPA approval
State citation Title/subject submittal data date Explanation
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* * * * * * *
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Chapter 114 (Reg 4)--Control of Air Pollution from Motor Vehicles
Subchapter A--Definitions
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Section 114.5................ Transportation 05/03/2000 12/5/02 and FR
Planning Definition. page cite.
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* * * * * * *
Subchapter G--Transportation Planning
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[[Page 72383]]

* * * * * * *
Section 114.270.............. Transportation 05/03/2000 12/5/02 and FR
Control Measures. page cite.

* * * * * * *
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(e) * * *

EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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Applicable
geographic or State submittal/ EPA approval
Name of SIP provision nonattainment effective date date Comments
area
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* * * * * * *
Transportation Control All 05/09/2000 12/5/02 and FR Chapter 1. Introduction,
Measures SIP Revision. Nonattainment page cite.. Chapter 2. General, and
and Maintenance Chapter 3. Criteria and
Areas. Procedures.
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[FR Doc. 02-30764 Filed 12-4-02; 8:45 am]
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