[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Rules and Regulations]
[Pages 50205-50208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16933]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R06-OAR-2005-TX-0022; FRL-7959-5]
Limited Approval and Promulgation of Implementation Plans; Texas;
Excess Emissions During Startup, Shutdown and Malfunction Activities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action finalizes limited approval of revisions to the
Texas State Implementation Plan (SIP) concerning excess emissions which
we proposed, through the parallel processing mechanism, on May 9, 2005.
Specifically, we are finalizing limited approval of revisions to 30 TAC
Chapter 101, General Air Quality Rules concerning excess emissions
during startup, shutdown, and malfunction (SSM) activities. The action
will have the effect of extending the expiration date of certain
provisions from June 30, 2005 to no later than June 30, 2006. Texas has
made this change to allow for additional time before these provisions
expire from the SIP to submit a revised excess emissions rule for our
approval into the SIP.
DATES: This rule is effective on September 26, 2005.
ADDRESSES: Copies of the 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 Planning Section
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Texas Commission on Environmental Quality (TCEQ), Office of Air
Quality, 12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar of the Air Planning
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733 at (214) 665-6691, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background Information
1. What actions are we taking in this document?
2. What documents did we use in the evaluation of this rule?
3. Who submitted comments to us?
4. What is our response to the submitted written comments?
5. What areas in Texas will these rule revisions affect?
II. Final Action
III. Statutory and Executive Order Reviews
In this document ``we,'' ``us,'' and ``our'' refer to EPA.
I. Background Information
1. What Actions Are We Taking in This Document?
On May 9, 2005 (70 FR 24348) we proposed limited approval of
revisions to the Texas SIP pertaining to excess emissions during SSM
activities. See 30 TAC, General Air Quality Rule 101, subchapter F,
sections 101.221, 101.222, and 101.223. The currently approved Texas
SIP provides that these three provisions of the State rules, that
address excess emissions resulting from SSM related activities, will
expire by their own terms on June 30, 2005. In granting a limited
approval of those provisions of the State rule EPA interpreted those
provisions to mean the subsections would expire from the approved SIP
on that date (June 30, 2005).
Our May 9, 2005 (70 FR 24348) proposal addressed changes to each of
these three provisions which would extend the expiration date to as
late as June 30, 2006. Specifically, the State revised each of the
three subsections to provide:
``This section expires on January 15, 2006, unless the
commission submits a revised version of this section to the
Environmental Protection Agency (EPA) for review and approval into
the Texas state implementation plan. If the commission submits a
revised version of this section, this section expires on June 30,
2006.''
See 30 TAC, General Air Quality Rule 101, Subchapter F, subsections
101.221(g), 101.222(h), and 101.223(e).
Today, we are taking final action on the May 9, 2005 (70 FR 24348)
proposal. Because we proposed to approve these revisions prior to the
time the State completed its state rulemaking process, we compared the
final version of the adopted State submission with the submission on
which the proposed rulemaking was based. The comparison reveals no
changes in the State's final submission. The change we are approving
today will, in effect, extend the expiration date of the affected
sections from June 30, 2005 to January 15, 2006, unless the State
submits a replacement rule to EPA, which would have the effect of
extending the expiration date in the SIP to June 30, 2006.
The EPA believes it is important to reiterate our interpretation of
the phrase in the State's rule, ``submits a revised version of this
section.'' If we receive a SIP submission of a state-adopted revised
version of the specified sections prior to January 15, 2006, we will
review the submission for completeness in accordance with our
completeness regulations. See 40 CFR Part 51, Appendix V. If the State
fails to submit an adopted rule by January 15, 2006, or submits a SIP
that we determine is incomplete, the existing regulations will expire
from the SIP effective January 15, 2006. If we find the submission
complete, then the rule will expire from the SIP on June 30, 2006, or
at an earlier date if so provided by a replacement rule that we approve
into the Texas SIP prior to June 30, 2006.
The EPA intends to work with the State during the State's
rulemaking process to identify any issues that would prevent our full
approval of the replacement rule. Although we cannot prejudge our
ultimate decision on a future SIP submission prior to our review of
such revisions and our consideration of any public comments in response
to our proposed action on such submission, we will attempt to identify
any issues that would prevent our full approval of the replacement rule
during the State's rulemaking process and any preliminary discussions
we may have with the State.
We are granting limited, rather than full, approval of this SIP
submittal. We are granting limited approval of this rule because we
granted limited approval of the regulations which are modified by this
revision. Although this action will extend the expiration date of
sections 101.221, 101.222, and 101.223, the basis for our limited
approval of the State's excess emissions rules remains unchanged as
explained in our March 30, 2005 (70 FR 16129) rulemaking action.
2. What Documents Did We Use in the Evaluation of This Rule?
The EPA's interpretation of the Act on excess emissions occurring
during SSM is set forth in the following documents: a memorandum dated
September 28, 1982, from Kathleen M. Bennett, Assistant Administrator
for Air, Noise, and Radiation, entitled ``Policy on Excess Emissions
During Startup, Shutdown, Maintenance, and Malfunctions;'' EPA's
clarification to the above policy memorandum dated February 15, 1983,
from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and
Radiation; EPA's policy
[[Page 50206]]
memorandum reaffirming and supplementing the above policy, dated
September 20, 1999, from Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance and Robert Perciasepe, Assistant
Administrator for Air and Radiation, entitled ``State Implementation
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup,
and Shutdown'' (September 1999 Policy); EPA's final rule for Utah's
sulfur dioxide control strategy (Kennecott Copper), 42 FR 21472 (April
27, 1977), and EPA's final rule for Idaho's sulfur dioxide control
strategy, 42 FR 58171 (November 8, 1977); and the latest clarification
of EPA's policy issued on December 5, 2001. See the policy or
clarification of policy at: http://www.epa.gov/ttn/oarpg/t1pgm.html.
To find the latest Federally approved Texas SIP concerning excess
emissions see 70 FR 16129 (March 30, 2005).
3. Who Submitted Comments to Us?
We received written comments on our May 9, 2005 (70 FR 24348)
proposed limited approval of the Texas SIP revision. The comments were
submitted by the Environmental Integrity Project, Galveston-Houston
Association for Smog Prevention, Sierra Club Lone Star Chapter, Blue
Skies Alliance, Downwinders at Risk, Community In-Power and Development
Association, Public Citizen's Texas Office, and Texas Public Interest
Research Group (the Commenters) during the public comment period.
4. What Is Our Response to the Submitted Written Comments?
Our responses to the written comments concerning the proposed May
9, 2005 (70 FR 24348), Texas SIP revision are as follows:
Comment #1: The Commenters agree that we should grant a limited
approval of the extended expiration date in subsections 101.221(g) and
101.223(e), but claim that for the following reasons (see Comments
2, 3, and 4) we should disapprove the extension of the
expiration date in subsection 101.222(h).
Response to Comment #1: We appreciate the Commenters' support of
limited approval of subsections 101.221(g) and 101.223(e). See our
responses to Comments 2, 3, and 4 of this document concerning
subsection 101.222(h).
Comment #2: The Commenters state that an affirmative defense cannot
apply to emissions exceedances of the Federally promulgated
performance-based or technology driven standards such as New Source
Performance Standards (NSPS), and National Emissions Standards for
Hazardous Air Pollutants (NESHAP). While EPA's interpretation of Texas'
rules is clear from EPA's statements in the final limited approval (70
FR at 16132), EPA should not approve a revision to the Texas rules
unless Texas clarifies on the face of the rule that any affirmative
defense does not apply to Federally promulgated performance-based or
technology driven standards or other Federal requirements.
Response to Comment #2: We agree that in order to receive a full
approval of the rule, Texas needs to revise the rule to make clear that
the affirmative defense is not available for violations of Federally
promulgated performance-based or technology driven standards such as
NSPS and NESHAP. In this action, we are only considering a brief
extension of the existing rule for which we issued a limited approval
on March 30, 2005. Because the extension of the expiration date is
brief, we do not believe the underlying flaws in the rule mandate a
disapproval of the extension and that it is appropriate to grant a
limited approval of the revised expiration date. However, we note that
EPA will not approve any further extensions of the expiration date in
the absence of the State correcting the defects in the current rule.
See section 1 of our May 9, 2005 (70 FR 24349).
Comment #3: The Commenters state that subsection 101.222(c) exempts
excess emissions during scheduled maintenance, startup, and shutdown
from permitting requirements, if certain criteria are met, and conclude
that such exemptions could jeopardize SIP's ability to attain and
maintain compliance with the SIP. In addition, the commenters note that
EPA's SSM guidance makes clear that scheduled maintenance, startup and
shutdown activities should be accounted for in the plan and design, and
an affirmative defense should not be available. The Commenters state
that because subsections 101.222(c) and (e) violate the Act and EPA's
guidance, EPA cannot approve an extension of the expiration date for
these provisions.
Response to Comment #3: We agree with many of the points raised by
the Commenters regarding the underlying flaws with subsections
101.222(c) and (e), and those flaws were the basis for our limited,
rather than full approval of the State's excess emissions rules. See
section 3 of our March 30, 2005 (70 FR 16130-16131).
However, we do not think the brief extension of the expiration date
at issue here will have a significant effect and that it is appropriate
to grant a limited approval of the revised expiration provision. As
noted above, however, we will not grant any further extensions of the
expiration date in the absence of a submitted SIP revision correcting
the defects in the rule. See section 1 of our May 9, 2005 (70 FR
24349).
Comment #4: The Commenters state that because subsections
101.222(b) and (d) limit the ability of citizen and EPA enforcement,
EPA cannot approve the extension of the expiration date for these
provisions under section 101.222(h).
Response to Comment #4: In part, we based our rationale for a
limited, rather than a full, approval of Texas SSM rule on concerns
similar to those expressed by the Commenters. See our explanation at 70
FR 16130. As provided above, however, we do not believe these flaws
with the rule for which we granted a limited approval mandate that we
disapprove the brief extension of the expiration date.
This concludes our responses to the written comments we received
during public comment period concerning May 9, 2005 (70 FR 24348),
Texas proposed SIP revision.
5. What Areas in Texas Will These Rule Revisions Affect?
These rule revisions affect all sources of air emissions operating
within the State of Texas that are subject to emission reduction
requirements under the State's SIP approved regulations.
II. Final Action
Today, we are finalizing limited approval of the deletion of
existing SIP subsections 101.221(g), 101.222(h), and 101.223(e) and the
addition of revised subsections 101.221(g), 101.222(h), and 101.223(e)
into the Texas SIP. We published the proposal for this limited approval
on May 9, 2005 (70 FR 24348).
III. 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
[[Page 50207]]
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. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. 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 cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. section 804(2).
Under section 307(b)(1) of the 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Excess emissions,
Intergovernmental relations, Reporting and recordkeeping requirements,
Volatile organic compounds.
Dated: August 10, 2005.
Lawrence Starfield,
Acting Regional Administrator, Region 6.
0
40 CFR part 52 is amended:
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
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2. The table in Sec. 52.2270(c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended by revising the entries for sections
101.221, 101.222, and 101.223 to read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
EPA Approved Regulations in the Texas SIP
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State,
approval/,
State citation Title/subject submittal, EPA approval date Explanation
date
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Chapter 101--General Air Quality Rules
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* * * * * * *
Subchapter F--Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities
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* * * * * * *
Section 101.221.................. Operational 06/03/05 08/26/05, [Insert With Expiration
Requirements. FR citation from Date.
published date].
Section 101.222.................. Demonstrations...... 06/03/05 08/26/05, [Insert With Expiration
FR citation from Date.
published date].
Section 101.223.................. Actions to Reduce 06/03/05 08/26/05, [Insert With Expiration
Excessive Emissions. FR citation from Date.
published date].
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[FR Doc. 05-16933 Filed 8-25-05; 8:45 am]
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