[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Rules and Regulations]
[Pages 50208-50212]
From the Federal Register Online via the Government Publishing 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 [email protected].
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\
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\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).''
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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)
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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..............................
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Total Benefits (tpd)................ 1.11-1.71 1.63-4.63
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\*\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\
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\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.
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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 [email protected].
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\
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\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.
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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
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State
Applicable geographic submittal/
Name of SIP provision or nonattainment area effective EPA approval date Comments
date
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* * * * * * *
Voluntary Mobile Emission Dallas/Fort Worth, TX.. 4/25/00 8/26/05, [Insert FR .................
Program. page number where
document begins].
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[FR Doc. 05-17030 Filed 8-25-05; 8:45 am]
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