Air quality implementation plans; approval and promulgation; various States: Texas,
[Federal Register: July 17, 2000 (Volume 65, Number 137)]
[Rules and Regulations]
[Page 43986-43994]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy00-3]
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.
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 spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or ``our'' means EPA.
Table of Contents
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What action are we taking? II. What is the background for this action? III. What did Texas submit?
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What are the Federal requirements for permitting major sources and major modifications in nonattainment areas? V. Summary of Texas' 182(f) NOXwaivers VI. Why can we approve this request? VII. Final action VIII. Administrative requirements
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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
Recodified section of 30 TAC chapter Submittal dates of recodified 116
section
Title or description
Former section of 30 TAC chapter 116
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.
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.
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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.
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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
Date adopted by state
Date submitted to EPA
Description of SIP submittal
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 NOXas 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 NOXas an ozone precursor in the Dallas-Fort Worth ozone nonattainment area.
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What Are the Federal Requirements for Permitting Major Sources and Major Modifications in Nonattainment Areas?
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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
Requirement of Act
Where specified in the Act
Citation in state regulations
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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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.
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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
Pollutant: classification
Major source threshold in tons per year (TPY)
Where specified in the Act
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).
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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).
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).
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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
Pollutant: Classification Significance level in TPY
Where specified in the Act or regulations
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).
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.
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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
Ozone nonattainment classification
Offset ratio
Clean Air Act citation for offset ratio
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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The offset ratios in Table 6 above are required by Texas in section 116.12--Definition of ``major modification,'' Table I.
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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
Summary of Act's Section of chapter 116 which Summary of requirement Section of Act
requirement
addresses Act's requirement of chapter 116
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.
aApplies to a proposed increase of VOC or NOXfrom any discrete operation, unit, or other pollutant emitting activity at the source.
Table 8.--Description of Texas' Contemporaneous Periods
Contemporaneous period Contemporaneous period Pollutant
begins
ends
If source has potential to emit (PTE) less than 250 TPY
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 .
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If source has PTE equal to or greater than 250 TPY
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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Summary of Texas' 182(f) NOXWaivers
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What Does Section 182(f) of the Act Require?
Section 182(f) sets forth the presumption that NOXis 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 NOXcontrol to air quality, ozone attainment, or ozone air quality.
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Did We Approve NOXWaivers in Texas?
We approved petitions submitted by Texas under section 182(f) to waive NOXprovisions 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 NOXcontrol requirements of section 182(f) of the Act. See 59 FR 60709.
\1\ Includes the following Texas counties: Collin, Dallas, Denton, and Tarrant Counties in Texas
\2\ Includes El Paso County in Texas
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 NOXcontrol requirements of section 182(f) of the Act. These temporary exemptions expired December 31, 1996. See 60 FR 19515.
\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.
On May 23, 1997, we approved a petition from Texas dated March 8, 1996, to extend the NOXwaiver 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 NOXexemption 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 NOXsources will help the area to attain the air quality standard for ozone. See 64 FR 19283.
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What Is the Current Status of Texas NOXWaivers?
On December 31, 1997, the NOXwaiver 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 NOXexemption 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 NOXin 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 NOXNSR 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 NOXas 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 NOXthat we had approved on November 28, 1994, for the DFW nonattainment area. On April 20, 1999, we approved this petition and reinstated NOXas an ozone precursor in the DFW nonattainment area.
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What Rule Changes Did Texas Submit to Accommodate the Section 182(f) NOXWaivers?
Texas submitted the following SIP revisions indicated in Table 9 below to incorporate the section 182(f) NOXwaivers and subsequent reinstatement for NOXas an ozone precursor:
Table 9.--Summary of Texas SIP Submittals Which Incorporate the Section 182(f) NOXWaivers
Date of SIP submittal
Description
November 1, 1995...................... Texas submitted revisions to Section 116.150 to implement the NOXwaivers 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 NOXas 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 NOXas an ozone precursor in the HGA and BPA areas following the expiration of the temporary waivers for those areas on December 31, 1997.
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March 16, 1999........................ Texas submitted revisions to Sections 116.12 (definition of ``major modification'' and Table I) and 116.150(b), to again require NOXto be treated as an ozone precursor in the DFW area.
\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.
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What Are Texas' Provisions for Addressing NOXWaivers in DFW and ELP?
Texas addresses the NOXwaivers for DFW and ELP in section 116.150(b) submitted November 1, 1995. section 116.150(b) is consistent with the NOXwaiver 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 NOXwaiver 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.
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What Are Texas' Provisions for Addressing NOXWaivers in HGA and BPA?
Texas addresses the NOXwaivers for HGA and BPA in section 116.150(c) submitted November 1, 1995. This section temporarily removed the requirements relating to NOXemissions (as an ozone precursor) in these areas.
Section 116.150(c) exempted NOXfrom otherwise applicable nonattainment area permitting requirements \6\ (except for NOXoffsets). 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.
\6\ Section 116.150(c) exempts NOXfrom 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.
Section 116.150(c) further required a source to document any proposed increase of NOXequal 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 NOXin HGA and BPA, effective January 1, 1998. The submittal further provides that sources with NOXoffsets in the HGA and BPA areas held in abeyance should have obtained the required NOXoffsets no later than January 1, 2000.
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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.
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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).
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Administrative Requirements
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Executive Order 12866
The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled ``Regulatory Planning and Review.''
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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.
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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
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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.
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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.
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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).
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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.
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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.
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Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filedin 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]
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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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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.
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(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 [07/17/00and page number] Ref 52.2299(c)(102) Note: Nonattainment review definitions repealed from 101.1 and added to 116.12.
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Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
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Section 116.03........... Consideration for
08/16/93 [07/17/00and 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.
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Subchapter A--Definitions
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Section 116.12........... Nonattainment Review 02/24/99 [07/17/00and page number] Includes Table I, Definitions.
Major Source/Major Modification Emission Thresholds.
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Subchapter B--New Source Review Permits Nonattainment Review
Section 116.150.......... New Major Source or 02/24/99 [07/17/00and page number] Major Modification in Ozone Nonattainment Area. Section 116.151.......... New Major Source or 03/18/98 [07/17/00and page number] Major Modification in Nonattainment Area Other than Ozone.
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Subchapter B--New Source Review Permits Emission Reductions: Offsets
Section 116.170.......... Applicability for
08/16/93 [07/17/00and page number] Note: 116.170(2) Not Reduction Credits.
in SIP.
[FR Doc. 00-17876Filed7-14-00; 8:45 am]
BILLING CODE 6560-50-U
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