[Federal Register Volume 65, Number 137 (Monday, July 17, 2000)]
[Rules and Regulations]
[Pages 43986-43994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17876]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-100-7390a; FRL-6735-3]
Approval and Promulgation of Implementation Plans; Texas;
Permitting of New and Modified Sources in Nonattainment Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is approving revisions to the Texas State
Implementation Plan (SIP) for the permitting of new major sources and
major modifications in areas which do not meet the national ambient air
quality standards (NAAQS) promulgated by EPA (nonattainment areas). The
EPA is approving these revisions to satisfy the provisions of the Clean
Air Act (Act) which relate to the permitting of new and modified
sources which are located in nonattainment areas. Today's action
approves the recodification of and revisions to the nonattainment
permitting regulations. Today's action also approves revisions relating
to when nonattainment area permitting requirements apply to emissions
of nitrogen oxides (NOX) as a precursor to ozone in an ozone
nonattainment area.
EFFECTIVE DATE: This rule is effective on August 16, 2000.
ADDRESSES: Copies of documents relevant to this action are available
for public inspection during normal business hours at the following
locations. Anyone wanting to examine these documents should make an
appointment with the appropriate office at least two working days in
advance.
Environmental Protection Agency, Region 6, Air Permits Section
(6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Texas Natural Resource Conservation Commission, Office of Air
Quality, 12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Stanley M. Spruiell of EPA Region 6
Air Permits Section at (214) 665-7212 at the address above, or at
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' means EPA.
Table of Contents
I. What action are we taking?
II. What is the background for this action?
III. What did Texas submit?
[[Page 43987]]
IV. What are the Federal requirements for permitting major sources
and major modifications in nonattainment areas?
V. Summary of Texas' 182(f) NOX waivers
VI. Why can we approve this request?
VII. Final action
VIII. Administrative requirements
I. What Action Are We Taking?
We are finalizing our approval of the recodification of and
revisions to Title 30, Texas Administrative Code (TAC) Chapter 116,
``Control of Air Pollution by Permits for New Construction or
Modification,'' as indicated in Table 1 below:
Table 1.--Regulations That EPA Is Approving
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Recodified section of 30 TAC chapter Submittal dates of recodified
116 section Title or description Former section of 30 TAC chapter 116
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Section 116.12........................ August 31, 1993..................... Nonattainment Review Section 101.1.
July 18, 1996....................... Definitions.
April 13, 1998......................
March 16, 1999......................
Section 116.150....................... August 31, 1993..................... New Major Source or Major Section 116.3(a)(7) and (8).
November 1, 1995.................... Modification in Ozone
April 13, 1998...................... Nonattainment Areas.
March 16, 1999......................
Section 116.151....................... August 31, 1993..................... New Major Source or Major Section 116.3(a)(10).
April 13, 1998...................... Modification in Nonattainment
Area Other than Ozone.
Section 116.170....................... August 31, 1993..................... Applicability for Reduction Section 116.3(c).
Credits.
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This proposal includes portions of revisions submitted by the
Governor of Texas to EPA on the following dates:
August 31, 1993.
November 1, 1995.
July 18, 1996.
April 13, 1998.
March 16, 1999.
We are taking this rulemaking action under sections 110, 301 and part D
of the Act. We are acting only on those parts of these submittals which
relate to permitting sources in nonattainment areas.
II. What Is the Background for This Action?
On January 18, 2000, we published a notice of proposed rulemaking
(NPR) proposing full approval of the recodification of and revisions to
Texas' regulations for the permitting of new major sources and major
modifications in nonattainment areas. The Governor submitted revisions
to these nonattainment area permitting requirements as described above.
As explained in the NPR, we have determined that Texas'
recodification of and revisions to its nonattainment permitting
requirements continue to meet the requirements of part D of the Act and
40 CFR 51.165 (Permit Requirements). The NPR provided opportunity for
the public to comment on the proposed action. The public comment period
for our action ended February 17, 2000. We received no comments on the
NPR. As a result, we are finalizing our proposed approval without
changes. For more details on these submittals, please refer to the
proposed rulemaking.
III. What Did Texas Submit?
Table 2 below summarizes each individual SIP submittal that we are
approving in today's action.
Table 2.--Summary of Each Individual SIP Submittal
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Date adopted by state Date submitted to EPA Description of SIP submittal
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August 16, 1993......................... August 31, 1993...................... Recodification and revisions to
SIP relating to permitting
under part D of the Act. This
includes submittal of the
following recodified Sections
of Chapter 116:
--Section 116.12,
--Section 116.150, and
--116.151, and
--Section 116.170(1) and (3).
October 26, 1995........................ November 1, 1995..................... Revisions to Section 116.150 to
address nonattainment
permitting requirements for
NOX (as an ozone precursor) in
the Dallas-Fort Worth, El
Paso, Houston-Galveston, and
Beaumont-Port Arthur ozone
nonattainment areas consistent
with waivers approved by EPA
pursuant to section 182(f) of
the Act.
May 15, 1996............................ July 18, 1996........................ Revisions to Table I of Section
116.12 to conform to NOX
waivers approved by EPA
pursuant to section 182(f) of
the Act.
March 18, 1998.......................... April 13, 1998....................... Revisions to Sections 116.12,
Table I of Section 116.12, and
116.150, and 116.151. Texas
revised the SIP to reinstate
NOX as an ozone precursor in
the Houston-Galveston and
Beaumont-Port Arthur ozone
nonattainment areas.
February 24, 1999....................... March 16, 1999....................... Revisions to Chapter 116, which
reinstate the requirement to
review NOX as an ozone
precursor in the Dallas-Fort
Worth ozone nonattainment
area.
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[[Page 43988]]
IV. What Are the Federal Requirements for Permitting Major Sources
and Major Modifications in Nonattainment Areas?
A. What Are the Statutory Requirements for Permitting Major Sources and
Major Modifications in Nonattainment Areas?
The statutory requirements governing permitting in nonattainment
areas are in part D of the Act. Specifically, the Act requires that a
major source or major modification meet the criteria in Table 3 below.
Table 3.--Summary of Requirement for Permitting Major Sources and Major Modifications in Nonattainment Areas
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Requirement of Act Where specified in the Act Citation in state regulations
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Base emissions offsets on the Section 173(a)(1)(A)................ Section 116.150(a)(4),
same emissions baseline used Section 116.151(3).
in the demonstration of
reasonable further progress..
Apply Lowest Achievable Section 173(a)(2)................... Section 116.150(a)(1),
Emission Rate (LAER). Section 116.151(1).
Demonstrate that all other Section 173(a)(3)................... Section 116.150(a)(2),
major stationary sources under Section 116.151(2).
the same ownership or
operation in the State are
complying with the Act.
State cannot issue a permit if Section 173(a)(4)................... The EPA has made no such determination
the EPA Administrator finds for Texas. If EPA makes this
that the State is not determination in the future, EPA will
adequately enforcing the address this matter with Texas at that
provisions of the applicable time.
implementation plan for the
nonattainment area in which
the source proposes to
construct or modify.
Analyze alternative Section 173(a)(5)................... Section 116.150(a)(4).
sites, sizes, production Section 116.151(4).
processes, and environmental
control techniques for
proposed sources.
Demonstrate that the
benefits of the proposed
source significantly outweigh
the environmental and social
costs associated with its
location, construction, or
modification.
Prohibits use of growth Section 173(b)...................... Not Applicable.
allowance included in a SIP
prior to the Act Amendments of
1990 in an area which receives
notice that such plan is
substantially inadequate.
A sources may obtain offsets in Section 173(c)(1)................... Section 116.150(a)(3).
another nonattainment area Section 116.151(3).
under the following conditions.
The area in which the
offsetting reductions
originate has an equal or
higher nonattainment
classification, and.
The emissions from the
nonattainment area where the
offsetting reductions
originate will contribute to a
NAAQS violation in the area in
which the source would
construct.
A new or modified major Section 173(c)(1)................... Section 116.150(a)(3).
stationary source must offset Section 116.151(3).
a proposed emissions increase Section 116.12(14)--Definition of
with real reductions in actual ``Offset ratio''.
emissions.
Must not use emission Section 173(c)(2)................... Section 116.170(1).
reductions otherwise required
by the Act.
A State may allow any existing Section 173(e)...................... Section 116.170(3).
or modified source that tests
rocket engines or motors to
use alternative or innovative
means to offset emissions
increases from firing and
related cleaning.
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B. Who Is Affected by This Action?
The requirements described in Table 3 above apply to each owner
and/or operator who constructs or modifies a stationary source in a
nonattainment area in Texas if the stationary source is major for the
air pollutant for which the area is nonattainment. A stationary source
is major if it emits, or has the potential to emit, the nonattaining
pollutant, or precursor thereto, in amounts greater than the major
source threshold for the nonattaining pollutant.
C. What Are the Major Source Thresholds for Nonattainment Pollutants?
The major source threshold varies, depending on the pollutant and
the classification of the nonattainment area. Any owner or operator who
proposes to construct a major stationary source must obtain a permit
which complies with the regulations that we are approving herein. Table
4 below lists the major source threshold for each pollutant.
Table 4.--Major Source Thresholds
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Pollutant: classification Major source threshold in tons per year (TPY) Where specified in the Act
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Ozone:
Marginal.................. 100 of volatile organic compounds (VOC) or NOX....................................... Section 302(j).
Moderate.................. 100 of VOC or NOX.................................................................... Section 302(j).
Serious................... 50 of VOC or NOX..................................................................... Section 182(c).
Severe.................... 25 of VOC or NOX..................................................................... Section 182(d).
[[Page 43989]]
Carbon monoxide (CO):
Moderate.................. 100.................................................................................. Section 302(j).
Serious................... 50................................................................................... Section 187(c)(1).
Particulate matter less than
10 micrometers (PM-10):
Moderate.................. 100.................................................................................. Section 302(j).
Serious................... 70................................................................................... Section 189(b)(3).
Sulfur dioxide (SO2).......... 100.................................................................................. Section 302(j).
NOX........................... 100.................................................................................. Section 302(j).
Lead.......................... 100.................................................................................. Section 302(j).
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Table 4 above refers to classifications for areas designated
nonattainment for ozone, CO, and PM-10. These nonattainment
classifications are defined in the Act as follows:
Section 181(a) defines five area classifications for
ozone. These five classifications are marginal, moderate, serious,
severe, and extreme. Texas has no extreme ozone nonattainment areas and
does not address such areas in its regulations.
Section 186(a) defines two area classifications for CO.
These two classifications are moderate and serious.
Section 188 defines two area classifications for PM-10.
These two classifications are moderate and serious.
A detailed description of the individual area classifications for
ozone, CO, and PM-10 nonattainment areas is contained in EPA's General
Preamble for the Implementation of Title I of the 1990 Amendments, 57
FR 13498 (April 16, 1992).
D. What Is a Major Modification?
A major modification is any physical change, or change in the
method of operating, a major stationary source which significantly
increases net emissions of the air pollutant, or precursor, for which
the area is nonattainment and for which the source is a major source
before the modification.
Any owner or operator who proposes a major modification must obtain
a permit that complies with the regulations that we are approving
herein. Table 5 below lists the significance level for each pollutant
which is used in determining whether a net emissions increase is a
major modification.
Table 5.--Significance Levels for Major Modifications
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Pollutant: Classification Significance level in TPY Where specified in the Act or regulations
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Ozone:
Marginal................. 40 of VOC or NOX............... 40 CFR 51.165(a)(x).
Moderate................. 40 of VOC or NOX............... 40 CFR 51.165(a)(x).
Serious.................. 25 of VOC or NOX............... Section 182(c)(6) of the Act.
Severe................... 25 of VOC or NOX............... Section 182(c)(6) of the Act.
CO:
Moderate................. 100............................ 40 CFR 51.165(a)(x).
Serious.................. 50............................. a.
PM-10:
Moderate................. 15............................. a.
Serious.................. 15............................. a.
SO2.......................... 40............................. 40 CFR 51.165(a)(x).
NOX.......................... 40............................. 40 CFR 51.165(a)(x).
Lead......................... 0.6............................ 40 CFR 51.165(a)(x).
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a--No significance level is specified in the Act nor in the regulations. The significance levels specified in
Table 5 are the significance levels that we approved for Texas on September 27, 1995 (60 FR 49781).
The major source thresholds and significance thresholds in Tables 4
and 5 above are required by Texas in section 116.12--Definition of
``major modification,'' Table I.
E. What Are the Offset Requirements in Ozone Nonattainment Areas?
Section 182 of the Act also specifies the offset ratios that are
required for marginal, moderate, serious, severe and extreme ozone
nonattainment areas. Table 6 below lists the applicable offset ratio
for each type of ozone nonattainment area.
Table 6.--Offset Ratios for Each Type of Ozone Nonattainment Area
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Ozone nonattainment
classification Offset ratio Clean Air Act citation for offset ratio
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Marginal..................... 1.10 to 1...................... Section 182(a)(4).
Moderate..................... 1.15 to 1...................... Section 182(b)(5).
Serious...................... 1.20 to 1...................... Section 182(c)(10).
Severe....................... 1.30 to 1...................... Section 182(d)(2).
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[[Page 43990]]
The offset ratios in Table 6 above are required by Texas in section
116.12--Definition of ``major modification,'' Table I.
F. Does the Act Have Other Provisions That Apply in Serious and Severe
Ozone Nonattainment Areas?
Sections 182(c)(6), (7), and (8) of the Act contain provisions
which apply to modifications at major sources located in serious and
severe ozone nonattainment areas.
Tables 7 and 8 below summarize the requirements of sections
182(c)(6), (7), and (8) and describe how Texas addresses these
requirements in Chapter 116. The reader should refer to the NPR which
contains detailed discussions of the Act's requirements and our
analysis of how Chapter 116 meets these requirements of the Act.
Table 7.--Requirements of the Act for Ozone Nonattainment Areas
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Summary of Act's Section of chapter 116 which Summary of requirement
Section of Act requirement addresses Act's requirement of chapter 116
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Section 182(c)(6)--De minimis Netting Trigger. The Section 116.150............... Netting Trigger.
rule. source determines the Proposed project
``increase in net triggers
emissions'' from the contemporaneous
proposed modification. netting unless the
The net emissions from proposed project
the proposed meets at least one of
modification (the the following
``project net'') is the conditions:
sum of all proposed --The proposed
creditable emissions increase is less than
increases and decreases five TPY without
proposed at the source consideration of
between: (A) the date other decreases at
of application for the the source, or
modification and (B) --The ``project net''
the date the is zero or less.
modification begins Texas definition of
emitting. An increase ``project net'' in
or decrease is Section 116.12 is
creditable if it meets consistent with that
the criteria described term as described in
in 40 CFR the second column of
51.165(a)(1)(vi). this Table.
Section 182(c)(6)--De minimis Contemporaneous Period. Section 116.12. Definition of Contemporaneous
rule. If the project net is ``contemporaneous period''. Period. As described
an emissions increase, in Table 8 below.
then the source
aggregates the project
net emissions increase
with all other ``net
increases in emissions
from the source'' over
a period of five
consecutive calendar
years which includes
the year in which the
source increase occurs
(the ``contemporaneous
net''). If the
contemporaneous net
increase is greater
than 25 TPY, then the
proposed modification
is subject to
nonattainment new
source review (NNSR).
Section 182(c)(7)--Special Project is not a Section 116.150(a)(3)(A)...... NNSR is not required
rule for modifications of modification subject to if the project
sources emitting less than NNSR if source elects increases are offset
100 tons per year. to internally offset with internal offsets
the same pollutant at of the same pollutant
an offset ratio of at at a ratio of at
least 1.3 to 1 the least 1.3 to 1.
proposed increase of
VOC or NOXa.
Best available control Section 116.150(a)(1)......... If source elects not
technology (BACT) is to use internal
substituted for LAER, offsets, it can
if a source elects not substitute BACT for
to use internal offsets. LAER.
Section 182(c)(8)--Special The requirements of LAER Section 116.150(a)(3)(B)...... Source can substitute
rule for modifications of otherwise required by BACT for LAER, if the
sources emitting 100 tons per section 173(a)(2) of project increases are
year or more. the Act do not apply, offset with internal
if the source elects to offsets of the same
internally offset the pollutant at a ratio
same pollutant at 1.3 of at least 1.3 to 1.
to 1 such proposed
increase of VOC or NOXa.
A source which elects to Section 116.150(a)(3)(B)...... Internal offsets used
avoid LAER by as described above
satisfying the can also be applied
provisions of section to satisfy the offset
182(c)(8) may use the requirement.
1.3 to 1 internal
offset ratio in lieu of
the general offset
ratio.
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a Applies to a proposed increase of VOC or NOX from any discrete operation, unit, or other pollutant emitting
activity at the source.
Table 8.--Description of Texas' Contemporaneous Periods
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Contemporaneous period Contemporaneous period
Pollutant begins ends
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If source has potential to emit (PTE) less than 250 TPY
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VOC................. Five years before Date that new or
commencement of modified source begins
construction. operation.
NOX................. Latter of............... Date that new or
--November 15, 1992, or modified source begins
. operation.
--Five years before
commencement of
construction .
[[Page 43991]]
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If source has PTE equal to or greater than 250 TPY
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VOC................. The earlier of.......... Date that new or
--Five years before modified source begins
commencement of operation.
construction, or .
--November 15, 1992 ...
NOX................. November 15, 1992....... Date that new or
modified source begins
operation.
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V. Summary of Texas' 182(f) NOX Waivers
A. What Does Section 182(f) of the Act Require?
Section 182(f) sets forth the presumption that NOX is an
ozone precursor unless the Administrator makes a finding of
nonapplicability or grants a waiver pursuant to criteria contained
therein. Specifically, section 182(f) provides that requirements
applicable for major stationary sources of VOC shall apply to major
stationary sources of NOX, unless otherwise determined by
the Administrator, based upon certain determinations related to the
benefits or contribution of NOX control to air quality,
ozone attainment, or ozone air quality.
B. Did We Approve NOX Waivers in Texas?
We approved petitions submitted by Texas under section 182(f) to
waive NOX provisions in Texas, as follows:
On November 28, 1994, we conditionally approved two
petitions from Texas, each dated June 17, 1994. This action exempted
Dallas-Fort Worth (DFW) \1\ and El Paso (ELP) \2\ ozone nonattainment
areas from NOX control requirements of section 182(f) of the
Act. See 59 FR 60709.
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\1\ Includes the following Texas counties: Collin, Dallas,
Denton, and Tarrant Counties in Texas
\2\ Includes El Paso County in Texas
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On April 19, 1995, we approved a petition from Texas dated
August 17, 1994. This action temporarily exempted the Houston-Galveston
(HGA) \3\ and Beaumont-Port Arthur (BPA) \4\ ozone nonattainment areas
from the NOX control requirements of section 182(f) of the
Act. These temporary exemptions expired December 31, 1996. See 60 FR
19515.
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\3\ Includes the following Texas counties: Brazoria, Chambers,
Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller.
\4\ Includes the following Texas counties: Hardin, Jefferson,
and Orange Counties.
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On May 23, 1997, we approved a petition from Texas dated
March 8, 1996, to extend the NOX waiver in HGA and BPA until
December 31, 1997. See 62 FR 28344.
On April 20, 1999, we approved a petition from Texas dated
November 13, 1998, to rescind the conditional NOX exemption
for the DFW ozone nonattainment area. Texas petitioned for rescission
of the exemption after EPA reclassified DFW from a moderate ozone
nonattainment area to a serious ozone nonattainment area. The modeling
for this serious ozone nonattainment area SIP shows that control of
NOX sources will help the area to attain the air quality
standard for ozone. See 64 FR 19283.
C. What Is the Current Status of Texas NOX Waivers?
On December 31, 1997, the NOX waiver in HGA and BPA
expired. On February 12, 1998, we published a document in the Federal
Register concerning Texas' decision not to petition for further
extension of the NOX exemption in the HGA and BPA areas. See
63 FR 7071. Since the extension of the temporary exemption expired on
December 31, 1997, the State must implement the numerous requirements
relating to NOX in the HGA and BPA areas. Accordingly, any
new source review (NSR) permits that Texas had not deemed to be
administratively complete prior to January 1, 1998, must comply with
the NOX NSR requirements, consistent with the policy set
forth in the EPA's NSR Supplemental Guidance memorandum dated September
3, 1992, from John Seitz, Director, EPA's Office of Air Quality
Planning and Standards.
On February 18, 1998, we published our finding that the DFW
nonattainment area has not attained the 1-hour ozone NAAQS by the
applicable attainment date in the Act for moderate ozone nonattainment
areas, November 15, 1996. As a result of this finding, the DFW ozone
nonattainment area was reclassified by operation of law as a serious
ozone nonattainment area, effective March 20, 1998. Texas was required
to submit a new SIP, no later that March 20, 1999, addressing
attainment of that standard by November 15, 1999. Texas submitted a
revised plan on March 16, 1999, in satisfaction of this requirement.
In its revised plan, Texas again recognizes NOX as an
ozone precursor in the DFW nonattainment area. Texas also forwarded a
petition to us on November 13, 1998, requesting that we withdraw the
waiver for NOX that we had approved on November 28, 1994,
for the DFW nonattainment area. On April 20, 1999, we approved this
petition and reinstated NOX as an ozone precursor in the DFW
nonattainment area.
D. What Rule Changes Did Texas Submit to Accommodate the Section 182(f)
NOX Waivers?
Texas submitted the following SIP revisions indicated in Table 9
below to incorporate the section 182(f) NOX waivers and
subsequent reinstatement for NOX as an ozone precursor:
Table 9.--Summary of Texas SIP Submittals Which Incorporate the Section
182(f) NOX Waivers
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Date of SIP submittal Description
------------------------------------------------------------------------
November 1, 1995...................... Texas submitted revisions to
Section 116.150 to implement
the NOX waivers approved for
the DAL, ELP, HGA, and BPA
ozone nonattainment areas.
July 18, 1996......................... Texas submitted revisions to
Table I in Section 116.12 \5\
to remove NOX as an ozone
precursor, consistent with
EPA's approval of the NOX
waivers.
April 13, 1998........................ Texas submitted revisions to
Sections 116.12 (Table I) and
116.150(c), to reinstate NOX as
an ozone precursor in the HGA
and BPA areas following the
expiration of the temporary
waivers for those areas on
December 31, 1997.
[[Page 43992]]
March 16, 1999........................ Texas submitted revisions to
Sections 116.12 (definition of
``major modification'' and
Table I) and 116.150(b), to
again require NOX to be treated
as an ozone precursor in the
DFW area.
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\5\ Table I of section 116.12 specifies the various classifications of
nonattainment along with the associated emission levels which
designate a major modification for those areas. A detailed discussion
of the changes to Table I is included in section of the preamble
describing the submitted definition of ``major modification.''
The above described revisions to section 116.150 are discussed in
the following paragraphs.
E. What Are Texas' Provisions for Addressing NOX Waivers in
DFW and ELP?
Texas addresses the NOX waivers for DFW and ELP in
section 116.150(b) submitted November 1, 1995. section 116.150(b) is
consistent with the NOX waiver approved by EPA on November
28, 1994. Following the redesignation of DFW to a serious ozone
nonattainment area, Texas revised section 116.150(b) to revoke
applicability of the NOX waiver in DFW. As revised, section
116.150(b) now identifies ELP as the only area in Texas where a section
182(f) waiver continues to apply. Texas submitted these revisions to
section 116.150(b) on March 16, 1999.
F. What Are Texas' Provisions for Addressing NOX Waivers in
HGA and BPA?
Texas addresses the NOX waivers for HGA and BPA in
section 116.150(c) submitted November 1, 1995. This section temporarily
removed the requirements relating to NOX emissions (as an
ozone precursor) in these areas.
Section 116.150(c) exempted NOX from otherwise
applicable nonattainment area permitting requirements \6\ (except for
NOX offsets). The requirements for obtaining NOX
offsets continue to apply, and will be included in the source's permit.
However, the requirement to obtain such offsets was held in abeyance
until January 1, 1998.
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\6\ Section 116.150(c) exempts NOX from the
application of lowest achievable emission rate, statewide compliance
by all sources under common control with the applicant, and
alternate site analysis, which are otherwise required by section
116.150(a)(1), (2), and (4), respectively.
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Section 116.150(c) further required a source to document any
proposed increase of NOX equal to or greater than 40 TPY and
submit documentation of netting calculations associated with the
proposed increase, and the source must otherwise comply with the
requirements of sections 116.150(a).
Texas submitted further revisions to section 116.150(c) on April
13, 1998. This submittal reinstates the NSR requirements for
NOX in HGA and BPA, effective January 1, 1998. The submittal
further provides that sources with NOX offsets in the HGA
and BPA areas held in abeyance should have obtained the required
NOX offsets no later than January 1, 2000.
VI. Why Can We Approve the Requested SIP Revisions?
Consistent with the above discussion and with the NPR we find that
the NNSR regulations submitted by Texas meet the requirements of the
Act. We therefore approve these regulations as revisions to the Texas
SIP.
VII. Final Action
We are approving the revisions to 30 TAC Chapter 116 which relate
to the permitting of major sources and major modifications in
nonattainment areas. Specifically, for the reasons stated herein, we
are approving sections 116.12, 116.150, 116.151, 116.170, and
116.170(1) and (3).
VIII. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) revokes and replaces Executive Order 12612, ``Federalism,''
and Executive Order 12875, ``Enhancing the Intergovernmental
Partnership.'' Executive Order 13132 requires EPA to develop an
accountable process to ensure ``meaningful and timely input by State
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the Agency consults with State and local officials early in the
process of developing the proposed regulation.
This final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132,
because it merely approves a State rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of
[[Page 43993]]
the Order has the potential to influence the regulation. This final
rule is not subject to Executive Order 13045 because it approves a
State program.
D. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the OMB, in a separately identified section
of the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally
requires an agency to conduct a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions. This final rule will not have a significant
impact on a substantial number of small entities because SIP approvals
under section 110 and subchapter I, part D of the Act do not create any
new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Act
forbids EPA to base its actions concerning SIPs on such grounds. See
Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated annual costs to State,
local, or tribal governments in the aggregate; or to private sector, of
$100 million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated does
not include a Federal mandate that may result in estimated annual costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector. This Federal action
approves pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule can
not take effect until 60 days after it is published in the Federal
Register. This action is not a ``major'' rule as defined by 5 U.S.C.
804(2). This rule will be effective August 16, 2000.
H. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 15, 2000. 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,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen oxides, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: July 5, 2000.
Jerry Clifford,
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. In Sec. 52.2270(c) the first table is amended by deleting the
entry for Section 101.1 Table I (Definitions--Major Source/Major
Modification Emission Thresholds), revising the entries for Section
101.1 (Definitions) and for Section 116.03 (Consideration for Granting
a Permit to Construct and Operate), and by adding new entries in
numeric order to read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
[[Page 43994]]
EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject approval EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------
Chapter 101--General Rules
----------------------------------------------------------------------------------------------------------------
Section 101.1............ Definitions......... 08/16/93 [07/17/00 and page number] Ref 52.2299(c)(102)
Note: Nonattainment
review definitions
repealed from 101.1
and added to
116.12.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
* * * * *
----------------------------------------------------------------------------------------------------------------
Section 116.03........... Consideration for 08/16/93 [07/17/00 and page number] Ref 52.2299(c)(102)
Granting a Permit Note:(a)(7), (8),
to Construct and (9), (10), (11),
Operate. and (12); (c); (d);
and (e) NOT in SIP.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
Section 116.12........... Nonattainment Review 02/24/99 [07/17/00 and page number] Includes Table I,
Definitions. Major Source/Major
Modification
Emission
Thresholds.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
Subchapter B--New Source Review Permits
Nonattainment Review
----------------------------------------------------------------------------------------------------------------
Section 116.150.......... New Major Source or 02/24/99 [07/17/00 and page number]
Major Modification
in Ozone
Nonattainment Area.
Section 116.151.......... New Major Source or 03/18/98 [07/17/00 and page number]
Major Modification
in Nonattainment
Area Other than
Ozone.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
Subchapter B--New Source Review Permits Emission Reductions: Offsets
----------------------------------------------------------------------------------------------------------------
Section 116.170.......... Applicability for 08/16/93 [07/17/00 and page number] Note: 116.170(2) Not
Reduction Credits. in SIP.
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[FR Doc. 00-17876 Filed 7-14-00; 8:45 am]
BILLING CODE 6560-50-U