
[Federal Register: January 15, 2009 (Volume 74, Number 10)]
[Rules and Regulations]
[Page 2387-2392]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja09-18]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0357; FRL-8761-4]


Approval and Promulgation of Air Quality Implementation Plans;
Texas; Approval of the Section 110(a)(1) Maintenance Plan for the 1997
8-Hour Ozone Standard for El Paso County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving a revision to the
Texas State Implementation Plan (SIP). The revision consists of a
maintenance plan for El Paso County developed to ensure continued
attainment of the 1997 8-hour ozone National Ambient Air Quality
Standard (NAAQS) through the year 2014. The Maintenance Plan meets the
statutory and regulatory requirements, and is consistent with EPA's
guidance. EPA is approving the revision pursuant to section 110 of the
Federal Clean Air Act (CAA).

DATES: This rule is effective on March 16, 2009 without further notice,
unless EPA receives relevant adverse comment by February 17, 2009. If
EPA receives such comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2006-0357, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     EPA Region 6 ``Contact Us'' Web site: http://epa.gov/
region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please
also send a copy by e-mail to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2006-0357. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Planning Section
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733.
    The file will be made available by appointment for public
inspection in the Region 6 FOIA Review Room between the hours of 8:30
a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the
person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or
Mr. Bill Deese at 214-665-7253 to make an appointment. If possible,
please make the appointment at least two working days in advance of
your visit. There will be a 15 cent per page fee for making photocopies
of documents. On the day of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection at the
State Air Agency listed below during official business hours by
appointment:
    Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Jeffrey Riley, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-8542; fax number
214-665-7263; e-mail address riley.jeffrey@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we''
``us'' or ``our'' is used, we mean the EPA.

Outline

I. What Is the Action EPA Is Taking?
II. What Is the Background for This Action?
III. What Is EPA's Analysis of the State's Submittal?
IV. What Preconstruction Permitting Program Applies in the Area?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What Is the Action EPA Is Taking?

    EPA is approving a revision to the Texas SIP. The revision is a
1997 8-hour ozone NAAQS maintenance plan for El Paso County. The State
of Texas, through the Texas Commission on Environmental Quality (TCEQ),
submitted the 1997 8-hour ozone NAAQS maintenance plan for El Paso
County to EPA on January 20, 2006. EPA is approving the maintenance
plan SIP revision for El Paso County as meeting the requirements of CAA
Section 110(a)(1) and EPA's regulations under 40 CFR 51.905(c) and (d)
and being consistent with EPA guidance. The maintenance plan is
designed to help keep the El Paso area in attainment for the 8-hour
ozone NAAQS through the year 2014.

II. What Is the Background for This Action?

    Under the 1990 CAA Amendments, El Paso County continued to be
designated nonattainment for the 1-hour ozone NAAQS by operation of law
and was

[[Page 2388]]

classified as a serious nonattainment area (see 56 FR 56694). El Paso
County has unique considerations for ozone attainment planning due to
airshed contributions from Ciudad Juarez, Mexico. Under Section 179B of
the Act, the EPA approved the 1-hour ozone standard attainment
demonstration SIP for El Paso County on June 10, 2004 (see 69 FR
32450). TCEQ established to the EPA's satisfaction that implementation
of the plan would achieve timely attainment of the 1-hour ozone NAAQS
but for emissions emanating from Ciudad Juarez.
    EPA also found the El Paso area would attain by November 15, 1996,
earlier than the attainment deadline of November 15, 1999. Due to this
finding, and the State's enforceable commitment to perform basin-wide
modeling whenever the necessary Juarez information became available,
the requirement for a post-1996 plan with an additional 9 percent of
reductions from November 1996 through November 1999 was deferred. This
approval of the section 179B attainment demonstration SIP and deferral
of the post-1996 plan was contingent; valid only as long as the area's
modeling data continued to show that the El Paso 1-hour ozone area
would be in attainment of the 1-hour NAAQS, but for emissions from
outside the United States.
    TCEQ submitted all the other requirements for a 1-hour ozone
nonattainment area classified as serious and EPA approved them as
follows:

------------------------------------------------------------------------
                                                      Federal  Register
         Description            Date of approval           Notice
------------------------------------------------------------------------
15% Rate of Progress (ROP)    November 10, 1998...  63 FR 62943.
 Plan.
1990 base year Emissions      November 8, 1994....  59 FR 55589.
 Inventory.
Periodic Inventory..........  Most Recent:
                               December 2, 2004
                               (letter from TCEQ).
Emissions Statements........  August 26, 1994.....  59 FR 44036.
Enhanced I/M................  August 22, 1994,      59 FR 43046.
                               revised.
                              November 14, 2001...  66 FR 57261.
VOC Reasonably Available      March 7, 1995,        60 FR 12438.
 Control Technology (RACT).    revised.
                              October 1996........  61 FR 55897.
                              January 26, 1999....  64 FR 3841.
                              March 15, 1999......  64 FR 12759.
                              December 22, 1999...  64 FR 71666.
                              September 5, 2000...  65 FR 53595.
                              December 20, 2000...  65 FR 79745.
                              July 16, 2001.......  66 FR 36913.
New Source Review (NSR).....  September 27, 1995..  60 FR 49781.
Offset requirement..........  October 30, 1996....  61 FR 55894.
Reid Vapor Pressure.........  March 7, 1995.......  60 FR 12438.
Stage II Vapor Control......  April 15, 1994,       59 FR 17940.
                               revised.
                              March 29, 2005......  70 FR 15769.
Clean Fuel Vehicle Program..  February 7, 2001....  66 FR 9203.
Transportation Control        November 10, 1998...  63 FR 62943.
 Measures.
Enhanced Monitoring.........  October 4, 1994.....  59 FR 50504.
Failure-to-meet ROP and       May 22, 1997........  62 FR 27964.
 attainment contingency
 measures.
NOX Waiver..................  November 28, 1994...  59 FR 60714.
------------------------------------------------------------------------

    On April 30, 2004, EPA designated and classified areas for the 1997
8-hour ozone NAAQS (69 FR 23858), and published the final Phase 1 rule
for implementation of the 1997 ozone NAAQS (69 FR 23951). El Paso
County was designated as unclassifiable/attainment for the 1997 ozone
standard, effective June 15, 2004 (see 69 FR 23858). Consequently, this
attainment area is required to submit a 10-year maintenance plan under
section 110(a)(1) of the CAA and the Phase 1 rule. On May 20, 2005, EPA
issued guidance providing information regarding how a state might
fulfill the maintenance plan obligation established by the Act and the
Phase 1 rule (Memorandum from Lydia N. Wegman to Air Division
Directors, Maintenance Plan Guidance Document for Certain 8-hour Ozone
Areas Under Section 110(a)(1) of Clean Air Act, May 20, 2005). On
January 20, 2006, Texas submitted a 1997 8-hour ozone standard
maintenance plan for El Paso County to EPA. This SIP revision satisfies
the section 110(a)(1) CAA requirements for a plan that provides for
implementation, maintenance, and enforcement of the 1997 8-hour ozone
NAAQS in the El Paso County unclassifiable/attainment area.
    On December 22, 2006, the United States Court of Appeals for the
District of Columbia Circuit issued an opinion that vacated EPA's Phase
1 Implementation Rule for the 1997 8-Hour Ozone Standard. (South Coast
Air Quality Management District. v. EPA, 472 F.3d 882 (DCCir. 2006).
Petitions for rehearing were filed with the Court, and on June 8, 2007,
the Court modified the scope of the vacatur of the Phase 1 rule. See
489 F.3d 1245 (DC Cir. 2007), cert. denied, 128 S.Ct. 1065 (2008). The
Court vacated those portions of the Rule that provide for regulation of
the 1997 8-hour ozone NAAQS nonattainment areas under Subpart 1 in lieu
of Subpart 2 and that allowed areas to revise their SIPs to no longer
require certain programs as they applied for purposes of the 1-hour
NAAQS; new source review, section 185 penalties, and contingency plans
for failure to meet RFP and attainment milestones. Consequently, the
Court's modified ruling does not alter any requirements under the Phase
1 implementation rule for the 1997 8-hour ozone NAAQS for maintenance
plans.
    The Phase 1 Rule also provided that for an area like El Paso, any
outstanding obligations to provide SIP revisions concerning attainment
demonstration and Rate of Progress (ROP) Plan for the 1-hour ozone
NAAQS would no longer be required as long as the area continues to
maintain the 8-hour standard. If the 8-hour standard is violated prior
to the area having an approved 8-hour maintenance plan under section
110(a)(1), the area would be required to submit a SIP revision to
address the deferred post-1996 ROP plan. The area is not violating
either the 1-hour or 8-hour standard, and upon the effective date of
our approval of the 8-hour ozone maintenance plan, there no longer will
be a potential outstanding requirement

[[Page 2389]]

to submit a 1-hour ozone post-1996 ROP Plan for the El Paso 1-hour
ozone nonattainment area.\1\
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    \1\ Monitors in El Paso County currently reflect attainment of
the 1-hour ozone NAAQS (2002-2004 data). The State, however, did not
submit a request for redesignation of the area to attainment for the
1-hour ozone standard and a section 175A maintenance plan. Because
the area was never redesignated to attainment, the area must
continue to meet the 1-hour ozone serious area applicable
requirements (see 40 CFR 51.905(a)(3) and Section IV).
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III. What Is EPA's Analysis of the State's Submittal?

    On January 20, 2006, the State of Texas submitted a SIP revision
containing a maintenance plan for the 1997 ozone NAAQS for El Paso
County. The January revision provides a 1997 ozone NAAQS maintenance
plan, as required by section 110(a)(1) of the CAA and the provisions of
EPA's Phase 1 Implementation Rule (see 40 CFR 51.905(a)(4)). The
purpose of the plan is to ensure continued attainment and maintenance
of the 1997 ozone NAAQS in El Paso County.
    In this action, EPA is approving the State's maintenance plan for
the 1997 ozone NAAQS for the area of El Paso County because EPA finds
that the TCEQ submittal meets the requirements of section 110(a)(1) of
the CAA, EPA's rule, and is consistent with EPA's guidance. As
required, the plan provides for continued attainment and maintenance of
the 1997 ozone NAAQS in the area for 10 years from the effective date
of the area's designation as unclassifiable/attainment for the 1997
ozone NAAQS, and includes components illustrating how the area will
continue in attainment of the 1997 ozone NAAQS and contingency
measures. Each of the section 110(a)(1) plan components is discussed
below.
    (a) Attainment Inventory--The TCEQ developed comprehensive
inventories of VOC and NOX emissions from area, stationary,
and mobile sources using 2002 as the base year to demonstrate
maintenance of the 1997 ozone NAAQS for El Paso County. The year 2002
is an appropriate year for the TCEQ to base attainment level emissions
because States may select any one of the three years on which the 8-
hour attainment designation for the 1997 ozone NAAQS was based (2001,
2002, and 2003). The State's submittal contains the detailed inventory
data and summaries by source category. The 2002 base year inventory is
a good choice. Using the 2002 inventory as a base year reflects one of
the years used for calculating the air quality design values on which
the 8-hour ozone designation decisions were based. It also is one of
the years in the 2002-2004 period used to establish baseline visibility
levels for the regional haze program.
    A practical reason for selecting 2002 as the base year emission
inventory is that Section 110(a)(2)(B) of the CAA and the Consolidated
Emissions Reporting Rule (67 FR 39602, June 10, 2002) require States to
submit emissions inventories for all criteria pollutants and their
precursors every three years, on a schedule that includes the emissions
year 2002. The due date for the 2002 emissions inventory is established
in the rule as June 2004. In accordance with these requirements, the
State of Texas compiles a statewide EI for point sources on an annual
basis. For stationary point sources, for El Paso County, the TCEQ
provided estimates for each commercial or industrial operation that
emits 50 tons or more per year of VOC or NOX in Appendix B
of the maintenance plan. This data is quality assured and entered into
the State of Texas Air Reporting System (STARS). Projections for 2008
and 2014 were developed using the August 2005 Texas Industrial
Production Index (TIPI) derived growth factors, supplemented with
Economic Growth Analysis System version 4.0 (EGAS 4.0). Stationary non-
point source data was grown by using EGAS 4.0, and On-road mobile
emissions of VOC and NOX were estimated using EPA's
MOBILE6.2 motor vehicle emissions factor computer model. Non-road
mobile projections were developed with EPA's NONROAD model, with the
exception of aircraft, airport ground support equipment, and
locomotives. For these categories, the 2002 Periodic Emissions
Inventory was grown to 2008 and 2014 using EGAS 4.0 growth factors, and
the Federal Aviation Administration's Dispersion Modeling System (EDMS)
model was used to develop aircraft emissions projections. EPA finds
that the TCEQ prepared the 2002 base year emissions inventories and
projected data to the years 2008 and 2014, for the area consistent with
EPA's long-established guidance memoranda.
    The following table provides VOC and NOX emissions data
for the 2002 base attainment year inventory, as well as projected VOC
and NOX emission inventory data for the years 2008 and 2014.
Please see the Technical Support Document (TSD) for additional
emissions inventory data including projections by source category.

                 VOC and NOX Emissions Inventory Baseline (2002) and Projections (2008 and 2014)
----------------------------------------------------------------------------------------------------------------
                                                                  2002  tons per  2008  tons per  2014  tons per
                            Emissions                                   day             day             day
----------------------------------------------------------------------------------------------------------------
Total VOC.......................................................           52.44           47.53           44.61
Total NOX.......................................................           60.87           49.01           36.89
----------------------------------------------------------------------------------------------------------------

    As shown in the Table above, total VOC and total NOX
emissions for El Paso County are expected to decrease over the 10-year
period of the maintenance plan. Please see the TSD for more information
on EPA's analysis and review of the State's methodologies, modeling
data and performance, etc. for developing the base and attainment year
inventories. The State has demonstrated that the future year 1997 8-
hour ozone emissions will be less than the 2002 base attainment year's
emissions. The attainment inventories submitted by the TCEQ for this
area are consistent with the criteria as discussed in the EPA
Maintenance Plan Guidance memo dated May 20, 2005 and in other guidance
documents (please see the docket for additional information). EPA finds
that the future emissions levels in 2008 and 2014 are expected to be
less than emissions levels in 2002.
    (b) Maintenance Demonstration--The primary purpose of a maintenance
plan is to demonstrate how an area will continue to remain in
compliance with the 1997 ozone standard for the 10 year period
following the effective date of designation as unclassifiable/
attainment. The end projection year is 10 years from the effective date
of the attainment designation for the 1997 ozone NAAQS, which for El
Paso County was June 15, 2004. Therefore, the plan must demonstrate
attainment through 2014. As discussed in section (a) Attainment
Inventory above, Texas has identified the level of ozone-forming

[[Page 2390]]

emissions in El Paso County that was consistent with attainment of the
NAAQS for ozone in 2002. Texas has projected VOC and NOX
emissions for the years 2008 and 2014 in El Paso County and EPA finds
that the future emissions levels in those years are expected to be
below the emissions levels in 2002. Please see the TSD for more
information on EPA's review and evaluation of the State's
methodologies, modeling, inputs, etc., for developing the 2008 and 2014
projected emissions inventories.
    This demonstration shows compliance and maintenance of the 1997 8-
hour ozone standard by assuring that current and future emissions of
VOC and NOX remain at or below attainment or baseline EI of
2002. The year 2002 was chosen as the baseline year because it is one
of the most recent three years (i.e., 2002, 2003, and 2004) for which
the El Paso area has clean air quality data for the 8-hour ozone
standard. It includes future inventory projected years for 2008 and
2014. The plan identifies an ``out year,'' at least 10 years after the
effective date of classification. EPA finds that the future emissions
levels in 2008 and 2014 are expected not to exceed the emissions levels
in 2002.
    (c) Monitoring Network--The State of Texas has committed in its
maintenance plan to continue operation of an appropriate ozone
monitoring network and to work with EPA in compliance with 40 CFR part
58 with regard to the continued adequacy of such a network, if
additional monitoring is needed, and when monitoring can be
discontinued.
    In El Paso County, there are six monitoring sites, each of which
has monitored attainment with the 1997 ozone standard from 2002 through
2007. The 1997 ozone NAAQS is 0.08 parts per million based on the
three-year average of the fourth-highest daily maximum 8-hour average
ozone concentration measured at each monitor within an area. The 1997
ozone standard is considered to be attained at 84 parts per billion
(ppb). The three most recent 8-hour ozone design values for El Paso
County are 76 ppb for 2005, 78 ppb for 2006, and 79 ppb for 2007.
    (d) Contingency Plan--The section 110(a)(1) maintenance plan
includes contingency provisions to correct promptly any violation of
the 1997 ozone NAAQS that occurs. The contingency indicator is based
upon monitoring data. The triggering mechanism for activation of
contingency measures is a monitoring violation of the 1997 8-hour ozone
standard. In the maintenance plan, if contingency measures are
triggered, TCEQ is committing to implement the measures as
expeditiously as practicable but no longer than 24 months following the
trigger. Because the area can be influenced by transport from outside
the area (e.g., emissions from Mexico), the State will notify the EPA
if the violation was caused by actions outside TCEQ's jurisdiction.
    The following contingency measures are identified for
implementation:
     Vent gas control.
     Control of emissions from degassing or cleaning of
stationary, marine, and transport vehicles.
     Control of emissions from petroleum dry cleaning systems.
     Other measures deemed appropriate at the time because of
advances in control technologies.
    These contingency measures and schedules for implementation satisfy
EPA's long-standing guidance on the requirements of section 110(a)(1)
of Continued Attainment. Based on the above, we find that the
contingency measures provided in the State's El Paso 8-hour Ozone
maintenance plan are sufficient and meet the requirements of section
110(a)(1) of the CAA.
    (e) Verification of Continued Attainment--Texas commits to track
the progress of the maintenance plan by continuing to periodically
update the EI. It will compare the updated EIs against the projected
2008 and 2014 EIs. In addition, Texas commits to verify the 8-hour
ozone status through appropriate ambient air quality monitoring, and to
quality assure air quality monitoring data according to federal
requirements.

IV. What Preconstruction Permitting Program Applies in the Area?

    As discussed previously in Section II, although the monitoring data
shows that the area is meeting both the 1-hour and 8-hour ozone
standards, the State did not submit a request for redesignation of the
area to attainment for the 1-hour ozone standard before EPA revoked
this standard. Because the area was never redesignated to attainment
for the 1-hour standard, the area must continue to meet the applicable
1-hour ozone serious area measures. These mandatory measures include
the serious nonattainment area NSR permitting program.
    40 CFR 51.905(a)(3) 8-Hour NAAQS Attainment/1-Hour NAAQS
Nonattainment of EPA's Phase 1 implementation rule, however, provides
that the State may request that the Nonattainment New Source Review
program no longer apply in an area such as El Paso. If the State
submits to EPA a request to remove the NNSR program from the El Paso
Ozone SIP and replace it with the State's prevention of significant
deterioration (PSD) SIP, a section 110(l) demonstration would need to
be included with the request.
    If Texas chooses to submit such a request, the request must include
all necessary supporting elements, e.g., a section 110(l)
demonstration, any necessary regulatory revisions. Please note that the
Texas PSD SIP requirements would apply in the El Paso ozone area only
upon the effective date of an EPA action approving the removal from the
El Paso ozone SIP of the NNSR SIP program.

V. Final Action

    Pursuant to section 110 of the Act, EPA is approving the 1997 8-
hour ozone maintenance plan for El Paso County. We have evaluated the
State's submittal and have determined that it meets the applicable
requirements of the Clean Air Act and EPA regulations, and is
consistent with EPA policy.
    EPA is publishing this rule without prior proposal because we view
this as a non-controversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if relevant adverse
comments are received. This rule will be effective on March 16, 2009
without further notice unless we receive adverse comment by February
17, 2009. If we receive 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 now. Please note that if we receive adverse
comment on an amendment, paragraph, or section of this rule and if that
provision may be severed from the remainder of the rule, we may adopt
as final those provisions of the rule that are not the subject of an
adverse comment.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason and because this action will not have a significant, adverse
effect on the supply, distribution, or use of energy, this action is
also not subject to Executive Order 13211, ``Actions Concerning
Regulations That

[[Page 2391]]

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 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.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Because this rule
merely approves a state rule implementing a Federal standard, EPA lacks
the discretionary authority to modify today's regulatory decision on
the basis of environmental justice considerations.
    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. section 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.
section 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 March 16, 2009. 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, Incorporation by
reference, Intergovernmental relations, Ozone, Nitrogen dioxides,
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: December 31, 2008.
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 second table in paragraph (e) entitled ``EPA
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the
Texas SIP,'' is amended by adding an entry at 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
----------------------------------------------------------------------------------------------------------------
                                     Applicable           State
     Name of SIP provision          geographic or      submittal/       EPA approval date          Comments
                                 nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
El Paso County 1997 8-Hour       El Paso, TX.......         1/11/06  1/15/09 [Insert FR page
 Ozone Maintenance Plan.                                              number where document
                                                                      begins].
----------------------------------------------------------------------------------------------------------------


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3. Section 52.2275 is amended by adding a new paragraph (g) to read as
follows:


Sec.  52.2275  Control strategy and regulations: Ozone.

* * * * *
    (g) Approval. The Texas Commission on Environmental Quality (TCEQ)
submitted a 1997 8-hour ozone NAAQS maintenance plan for the area of El
Paso County on January 20, 2006. The area is designated unclassifiable/
attainment for the 1997 8-hour ozone standard. EPA determined this
request for El Paso County was complete on June 13, 2006. The
maintenance plan meets the requirements of section 110(a)(1) of the
Clean Air Act and is consistent with

[[Page 2392]]

EPA's maintenance plan guidance document dated May 20, 2005. The EPA
therefore approved the 1997 8-hour ozone NAAQS maintenance plan for the
area of El Paso County on January 15, 2009.

 [FR Doc. E9-708 Filed 1-14-09; 8:45 am]

BILLING CODE 6560-50-P
