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Proposed Rule

Approval and Promulgation of Air Quality Implementation Plans; Texas; Texas Low-Emission Diesel Fuel Program

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Proposed rule.


EPA is proposing to approve revisions to the State Implementation Plan (SIP) for the state of Texas. This revision makes changes to the Texas Low-Emission Diesel (TXLED) Fuel program. On April 6, 2005 EPA Start Printed Page 46449approved the compliance date change that was part of this submittal. None of the revisions being proposed for approval change the ultimate requirements regarding the reductions to be achieved. As a result and in accordance with section 110(l) of the Act, 42 U.S.C. section 7410(l), these revisions will not interfere with attainment, reasonable further progress or any other applicable requirement of the Clean Air Act.


Comments must be received on or before September 9, 2005.


Submit your comments, identified by Regional Material in EDocket (RME) ID No. R06-OAR-2005-TX-0020, by one of the following methods:

  • Federal eRulemaking Portal: Follow the online instructions for submitting comments.
  • Agency Web site:​rmepub/​ Regional Material in EDocket (RME), EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Once in the system, select “quick search,” then key in the appropriate RME Docket identification number. Follow the on-line instructions for submitting comments.
  • U.S. EPA Region 6 “Contact Us” Web site:​region6/​r6coment.htm. Please click on “6PD” (Multimedia) and select “Air” before submitting comments.
  • E-mail: Mr Thomas Diggs at Please also cc the person listed in the FOR FURTHER INFORMATION CONTACT section below.
  • Fax: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), at fax number 214-665-7263.
  • Mail: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
  • Hand or Courier Delivery: Mr. Thomas Diggs, 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 Regional Material in EDocket (RME) ID No. R06-OAR-2005-TX-0020. EPA's policy is that all comments received will be included in the public file without change, and may be made available online at​rmepub/​, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Do not submit information through Regional Material in EDocket (RME),, or e-mail if you believe that it is CBI or otherwise protected from disclosure. The EPA RME Web site and the Federal are “anonymous access” systems, 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 RME or, your e-mail address will be automatically captured and included as part of the comment that is placed in the public file 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 electronic docket are listed in the Regional Material in EDocket (RME) index at​rmepub/​. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in RME or 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.

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 Quailty, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

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Ms. 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

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Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA. This document concerns control of Air Pollution of NOX and VOCs from mobile sources in 110 counties of east Texas where the rule applies.

What Action Are We Taking Today?

We approved the original TXLED rule on November 14, 2001, (66 FR 57196) as part of the Houston-Galveston Attainment Demonstration SIP. On December 15, 2004, the Texas Commission on Environmental Quality (TCEQ) Commissioners proposed to revise the TXLED rule. The revisions were adopted on March 9, 2005, and submitted to EPA on March 23, 2005.

On February 16, 2005, the Executive Director of the TCEQ submitted a letter to EPA requesting parallel processing of the compliance date portion of the SIP revision for TXLED. EPA proposed action prior to completion of the State rulemaking process and, after completion of the State process, approved the compliance date portion of the SIP revision for TXLED on April 6, 2005 (70 FR 17321).

The Executive Director of the TCEQ submitted a letter to EPA on July 5, 2005, requesting that we not act on certain portions of the rule revision as it was submitted on March 23, 2005. These exceptions are noted below in the discussion of the rule. We are proposing to approve those aspects of the rule on which the TCEQ has not requested that EPA postpone action.

What Did the State Submit?

The State submitted revisions to TXLED rules found in 30 TAC 114.6 and 114.312, 114.314-114.316, 114.318, and 114.319. These include revisions to definitions; low emission diesel standards; registration of producers and importers; approved test methods; monitoring, recordkeeping, and Start Printed Page 46450reporting requirements; alternative emission reduction plans; and affected counties and compliance dates.

Why Are These Revisions Approvable?

We thoroughly analyzed the rule revisions to ensure that they did not compromise the integrity of the approved SIP. Many changes were nonsubstantive editorial or format changes. Some substantive changes are considered minor. Major substantive changes that needed a more thorough analysis are discussed below. A detailed analysis can be found in the Technical Support Document that accompanies this action.

Section 114.312. Low Emission Diesel Standards

In 114.312(b) the sulfur standard is removed. The sulfur standard is no longer needed in this rule because the federal ultra-low sulfur diesel standards are now promulgated and will reduce sulfur in on-highway diesel in 2006 and in nonroad equipment starting in 2007. Removal of sulfur by itself does not influence NOX emissions when the fuel is combusted unless advanced technology equipment is used. This equipment is not required to be manufactured until federal compliance dates beginning in 2006 and 2007. While the delay in achieving sulfur reductions does not impact NOX emissions and therefore does not impact ozone plans in Texas, it does impact SO2 and PM emissions. However, there are no PM or SO2 nonattainment areas in the area covered by the rule so the delay in the sulfur requirement will not interfere with attainment of these standards. Because the affected areas are in attainment of these standards before the compliance date of these standards, these revisions will not interfere with any applicable requirements concerning nonattainment nor will they have an adverse impact on reasonable further progress. Therefore, the repeal of the sulfur standard will not interfere with attainment, reasonable further progress or any other applicable requirement of the Act.

Renumbered 114.312(f) removes EPA from approval of alternative formulations. This revision is not approvable unless the executive director discretion is removed from the replicable test procedures in 114.315. The State requested that EPA not act upon the executive director discretion portions of 114.315 because the State plans to remove these references in future rulemakings.

Section 114.314. Registration of Diesel Producers and Importers

The previously approved SIP required registration with the State by all suppliers of diesel fuel in the affected area as of December 1, 2004, to gather data on suppliers and potential suppliers. In the revisions approved on April 6, 2005, the deadline to register was changed to May 1, 2005.

Section 114.315. Approved Test Methods

We are taking no action on subsection § 114.315(b) nor Alternative V at § 114.315(c)(4)(C)(ii)(V) at the request of the State. These citations give the executive director discretion for changing test methods. The State requested in the letter dated July 5, 2005, that we not act on these portions of the submittal.

Subsection (c) contains the methods and procedures for getting an alternative fuel formulation tested and approved. The adopted amendments to § 114.315(c) clarify and update existing references and provide additional flexibility in the testing of alternative formulations. Adopted revisions to § 114.315(c)(1)(C) and also to § 114.315(c)(4) replace or add language to reference the active version of the appropriate test methods or procedures rather than the date-specific versions. These revisions will ensure the use of the most accurate and up-to-date testing methods or procedures by ASTM or EPA.

The adopted revision to § 114.315(c)(1)(C) clarifies the diesel grades and sulfur content of the reference fuel for the testing of alternative formulations. Because the sulfur requirements were removed from § 114.312, revisions to § 114.315(c)(3)(A) set the sulfur limit of the reference fuel at a maximum value of 15 parts per million (ppm). This limit matches the federal sulfur requirements starting in 2006.

The revision to § 114.315(c)(4)(C) provides additional flexibility in the testing of new diesel formulations under § 114.312(f). These revisions amend the test sequences to now include sequences for testing with cold and hot start exhaust emission testing cycles. The revisions also contain sequences for testing only with hot start exhaust emission test cycles, including a new sequence for testing formulations that require an extended duration conditioning cycle. Alternative I at § 114.315(c)(4)(C)(ii)(I) is retained from the approved rule. Clarification that 20 or 21 hot-start tests must be run with each fuel is now included for the first three alternatives. These revisions allow increased flexibility in test procedures while assuring adequate data is available for a determination of emission reductions from the proposed alternatives and, therefore, are approvable.

Alternative IV at § 114.315(c)(4)(C)(ii)(IV) does not clearly specify that at least 20 tests must be run as in the first three alternatives. If only a few tests were run on each fuel, it would not be similar enough to the first three alternatives for us to say it is effectively the same as the others. At least 20 tests must be run on each fuel for Alternative IV. In addition, the conditioning cycle must include four tests on the candidate fuel but not count them toward the data used to evaluate the emission impacts of the candidate fuel. This sets a new baseline from which to make the determination. The State is currently providing guidance on the testing requirements, clarifying that 20 tests must be run for Alternative IV and 4 additional tests are necessary as a conditioning cycle.

The major revision to § 114.315(c)(5) is a new formula that specifies the measurement tolerances per pollutant type that will be acceptable when calculating whether the emissions generated by a candidate fuel are comparable to the emissions generated by the reference fuel. This formula is essentially the same as the one in the California diesel fuel rules.

The revision to § 114.315(c)(6) adds consultation with the EPA into the process to approve an alternative fuel formulation. This provides EPA input into the process to ensure the adequacy of the alternative fuel formulations and is approvable.

By letter dated July 5, 2005, the State has asked that EPA not consider Alternative V at § 114.315(c)(4)(C)(ii)(V). This provision gives the executive director discretion to approve other test sequences considered to be equivalent. We are taking no action on this provision in this action.

The revision adopted in § 114.315(d) adds requirements for what must be included in the application for approval of alternative diesel fuel formulations using additives. Adopted new paragraph (1) outlines that the application provided to the executive director must include the identity, chemical composition, and concentration of each additive used in the formulation, and the test method by which the presence and concentration of the additive may be determined. Adopted new paragraph (2) outlines what will be included in the executive director's approval notification of an alternative diesel fuel Start Printed Page 46451formulation. The adopted paragraph requires an approval notification to identify the total aromatic hydrocarbon content, cetane number, and other parameters as appropriate and as determined in accordance with the test methods identified in § 114.315(a). For alternative diesel fuel formulations using additives, the approval notice must specify, at a minimum, the identity, the minimum concentration, and the treatment rate of the additives used, along with the minimum specifications for the base fuel to be used in the approved formulation as determined by the test method identified in § 114.315(d)(1).

As a final point in the discussion of this subsection, we would like to clarify what could be included as “demonstrated to the satisfaction of * * * EPA” in § 114.315(d). Any fuel or fuel additive that has been verified by EPA through our Voluntary Diesel Retrofit Program/Environmental Technology Verification program could be considered demonstrated to the satisfaction of EPA. Also, a fuel prepared using EPA's Unified Model (the Model) could be included. The Model was created to evaluate the emission reduction benefits of TXLED in highway vehicles. In a memo from Bob Larson, EPA's Office of Transportation and Air Quality to Carl Edlund, Director of the Multimedia Permitting and Planning Divison, Region 6 of the EPA, dated September 27, 2001, we stated that the Unified Model should not be used to evaluate any other diesel fuel control program. Allowing the use of the Unified Model by refiners to evaluate diesel that can achieve the same NOX reductions as TXLED smooths the path to compliance. Alternative emission reduction plans would not be required in this case.

Along with this clarification, we make the following caveats regarding the use of the Unified Model for this purpose:

(1) It is for use only in the Texas Low-Emission Diesel program because it was developed specifically for evaluating TXLED. No other state may adopt this Model as a compliance tool or to evaluate the benefits of their own state-run diesel fuel program.

(2) The Unified Model allows the production of fuels using Cetane improvers. It does not allow for the use of any other additive.

(3) The Unified model was created primarily for highway vehicles. For highway vehicles the benefits decrease over time starting in 2004. In running the Model to determine a formulation, the evaluation year used in the Model will make a difference in the benefit. The Unified Model can be used for nonroad without decreasing benefits over time because nonroad engines do not have exhaust gas recirculation (EGR).

Section 114.316. Monitoring, Recordkeeping, and Reporting Requirements

New subsection (d) removes the sulfur testing requirement. The proposed gallonage requirement was revised at adoption from 50,000 gallons of LED produced to 250,000 gallons. In the approved SIP, no gallonage requirement was included, so this change is more stringent. Sampling for sulfur was removed as a State requirement.

New subsection (e) contains additive sampling language that is more stringent than what was previously approved.

Several administrative revisions were made. One is to provide records to the executive director within 15 days instead of five days of a written request. The other is a change to the 15 day requirement for companies to send in quarterly reports after the end of a quarter. This was changed at adoption to 45 days based on comments received during the State public comment period. These changes were made to be consistent with EPA requirements for these activities.

In § 114.316(g)(7) two new certification statements were added to account for diesel that may need further processing before becoming TXLED, and alternative fuel formulations of TXLED. These replace one certification that was deleted.

The sulfur requirement was removed from § 114.316(h)(2). This change is approvable for reasons discussed earlier.

New language in § 114.316(k) adds specific recordkeeping and reporting requirements for producers or importers that have Alternate Emission Reduction Plans, thus enhancing enforcement of the program. This language strengthens the SIP which previously required that plans “contain adequate enforcement provisions.” This includes information that producers must put into quarterly reports, e.g., volume of diesel fuel produced subject to the provisions of the alternative emission reduction plan, the volume of diesel fuel not produced but sold or supplied by the producer that is subject to provisions of the alternative emission reduction plan, the volume of additive utilized by the producer to produce diesel fuel subject to the provisions of the alternative emission reduction plan. This is approvable because it enhances enforcement of the program.

Section 114.318. Alternative Emission Reduction Plans

The meaning of this section remains essentially unchanged after reformatting and minor substantive changes. Language now in (d) was revised to allow plan implementation with executive director approval. In the SIP-approved version, it was implied but not explicitly stated that implementation of plans was allowed upon EPA and executive director approval. This has now been clarified. The July 5, 2005 letter from the State indicates that the language in 30 Tex. Admin. Code § 114.318(d) is meant to reference the approval mentioned in § 114.318(a) and therefore is interpreted to include EPA approval as well. Ultimately, if the plans that the State submits to EPA for approval as a SIP revision when implemented do not add up to equivalent or comparable reductions in NOX, the State will be responsible for replacing the lost reductions with other reductions not yet claimed. It is also presumed that the State will take appropriate enforcement action on any producer or importer that does not comply by supplying equivalent or comparable NOX reductions through a fuel strategy.

Section 114.319. Affected Counties and Compliance Dates

As stated previously, on February 16, 2005 the Executive Director of the TCEQ submitted a letter to EPA requesting parallel processing of the compliance date portion of the SIP revision for TXLED. We proposed approval on February 24, 2005, and gave final approval on April 6, 2005 (70 FR 17321).

In § 114.319(b)(1) five more counties were included in the Dallas-Fort Worth area bringing the total to nine for that area. These counties were part of the DFW Extended Compliance area under the 1-hour ozone standard, and are now part of the DFW 8-hour nonattainment area.

Proposed Action

We are proposing approval of the revisions to the TXLED rule as submitted March 23, 2005, with the following exceptions: (1) The compliance date changes that were already approved on April 6, 2005; (2) revisions to Approved Test Methods in §§ 114.315(b) and 114.315(c)(4)(C)(ii)(V) that the State specifically requested we not process at this time as specified above. None of the revisions being proposed for approval change the ultimate requirements regarding the reductions to be achieved. As a result Start Printed Page 46452and in accordance with section 110(l) of the Act, 42 U.S.C. section 7410(l), these revisions will not interfere with attainment, reasonable further progress or any other applicable requirement of the Clean Air Act.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposes to approve 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 proposed 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 proposes to approve 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 proposed 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 proposed 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.).

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List of Subjects in 40 CFR Part 52

  • Environmental protection
  • Air pollution control
  • Carbon Monoxide
  • Hydrocarbons
  • Incorporation by reference
  • Intergovernmental relations
  • Lead
  • Nitrogen oxides
  • Ozone
  • Particulate matter
  • Reporting and recordkeeping requirements
  • Sulfur oxides
  • Volatile organic compounds
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Authority: 42 U.S.C. 7401 et seq.

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Dated: August 2, 2005.

Richard E. Greene,

Regional Administrator, Region 6.

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[FR Doc. 05-15830 Filed 8-9-05; 8:45 am]