[Federal Register Volume 59, Number 11 (Tuesday, January 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1062]

[[Page Unknown]]

[Federal Register: January 18, 1994]


40 CFR Part 52

[TX-14-1-6091; FRL-4825-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Revision to the State Implementation Plan (SIP) Addressing PM-10 
for El Paso

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: This action approves a revision to the Texas State 
Implementation Plan (SIP) for PM-10 in El Paso. PM-10 is defined as 
particulate matter with an aerodynamic diameter less than or equal to a 
nominal 10 micrometers. The EPA is also approving the PM-10 SIP for El 
Paso, Texas, as meeting the requirements of section 179B of the Clean 
Air Act (CAA) regarding implementation plans and revisions for 
international border areas.

EFFECTIVE DATE: This action will become effective on February 17, 1994.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
following locations. The interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.
    U.S. Environmental Protection Agency, Region 6, Air ProgramsBranch 
(6T-A), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
    Mr. Jerry Kurtzweg (6101), U.S. Environmental Protection Agency, 
401 M Street, SW., Washington, DC 20460.
    Texas Natural Resource Conservation Commission, P.O. Box 13087, 
Austin, Texas 78711-3087.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Sather, Planning Section (6T-
AP), Air Programs Branch, U.S. Environmental Protection Agency (EPA) 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 



    El Paso, Texas, was designated nonattainment for PM-10 and 
classified as moderate under sections 107(d)(4)(B) and 188(a) of the 
CAA, upon enactment of the Clean Air Act Amendments (CAAA) of 
1990.1 Please reference 56 Federal Register (FR) 56694 (November 
6, 1991), and 57 FR 13498 and 13537 (April 16, 1992). The air quality 
planning requirements for moderate PM-10 nonattainment areas are set 
out in subparts one and four of part D, title I of the CAA.

    \1\The 1990 CAAA made significant changes to the air quality 
planning requirements for areas that do not meet (or that 
significantly contribute to ambient air quality in a nearby area 
that does not meet) the PM-10 National Ambient Air Quality Standards 
(NAAQS) (see Pub. L. No. 101-549, 104 Stat. 2399). References herein 
are to the CAAA, 42 U.S.C. 7401et seq.

    The EPA has issued a ``General Preamble'' describing the EPA's 
preliminary views on how the EPA intends to review SIPs and SIP 
revisions submitted under title I of the CAA, including those state 
submittals containing moderate PM-10 nonattainment area SIP 
requirements. See generally 57 FR 13498 (April 16, 1992) and 57 FR 
18070 (April 28, 1992).
    Those moderate PM-10 nonattainment areas designated nonattainment 
under section 107(d)(4) of the CAA were to submit SIPs to the EPA by 
November 15, 1991. The CAA outlined certain required items to be 
included in the SIPs. These required items, due November 15, 1991, 
unless otherwise noted, include: (1) A comprehensive, accurate, and 
current inventory of actual emissions from all sources of PM-10 in the 
nonattainment area (section 172(c)(3) of the CAA); (2) a permit program 
to be submitted by June 30, 1992, which meets the requirements of 
section 173 for the construction and operation of new and modified 
major stationary sources of PM-10 (section 189(a)(1)(A)); (3) a 
demonstration (including air quality modeling) that the plan provides 
for attainment of the PM-10 NAAQS as expeditiously as practicable but 
no later than December 31, 1994, or a demonstration that attainment by 
that date is impracticable (section 189(a)(1)(B)); (4) provisions to 
assure that Reasonably Available Control Measures (RACM), including 
Reasonably Available Control Technology (RACT), for control of PM-10 
will be implemented no later than December 10, 1993 (sections 172(c)(1) 
and 189(a)(1)(C)). For sources emitting insignificant (de minimis) 
quantities of PM-10, the EPA's policy is that it would be unreasonable 
and would not constitute RACM to require controls on the source. Please 
reference 57 FR 13540. Also, when evaluating RACM and RACT, 
technological and economical feasibility determinations are to be 
conducted (57 FR 13540-13544); (5) quantitative emission reduction 
milestones which are to be achieved every three years until the area is 
redesignated attainment and which demonstrate reasonable further 
progress (RFP) toward attaining the PM-10 NAAQS (section 189(c)); (6) 
contingency measures due November 15, 1993 (please reference 57 FR 
13543), that are to be implemented if the EPA determines that the area 
has failed to make RFP or to attain the primary standards by the 
applicable date (section 172(c)(9)); and (7) control requirements for 
major stationary sources of PM-10 precursors, unless the EPA determines 
inappropriate. The CAA, in section 189(e), states that control 
requirements applicable to major stationary sources of PM-10 will also 
be applicable to major stationary sources of PM-10 precursors, except 
where the Administrator determines that such sources do not 
significantly contribute to PM-10 levels that exceed the PM-10 ambient 
standards in the area.

Response to Comments

    The EPA received one comment letter from Chevron U.S.A. Products 
Company on its October 8, 1993 (58 FR 52467-52474), FR proposal to 
approve the El Paso moderate nonattainment area PM-10 SIP, including 
the proposal to approve the El Paso PM-10 SIP as meeting the 
requirements of section 179B of the CAA regarding implementation plans 
and revisions for international border areas. The letter expressed 
overall agreement with the EPA's proposal to approve the El Paso PM-10 
nonattainment SIP, but also posed one question regarding the three year 
progress report discussed in the section entitled ``Milestones and 
Reasonable Further Progress'' (58 FR 52472). Chevron expressed overall 
support for the three year PM-10 progress report requirement, beginning 
November 15, 1994, but questioned whether the EPA should require as a 
part of the report an evaluation of any additional controls which may 
be feasible to reduce exposures and/or bring the area into attainment. 
Chevron stated that since the EPA has found that the El Paso area would 
not need any additional PM-10 control measures but for transborder PM-
10, they did not see how any additional controls could be justified as 
feasible for El Paso under the CAA.
    The EPA, in this final rulemaking action, is approving the El Paso 
PM-10 SIP because it shows timely attainment of the PM-10 NAAQS based 
on United States (El Paso County) emissions alone. Nevertheless, 
because the PM-10 NAAQS reflects public health and welfare standards, 
and because PM-10 NAAQS exceedances are still being monitored in the El 
Paso nonattainment area, the EPA is encouraging the State of Texas to 
evaluate the feasibility of further reductions in El Paso County PM-10 
emissions beyond the amounts accounted for by the control measures put 
in place by the PM-10 SIP being approved in this action. Additional 
reductions would further reduce the PM-10 concentrations to which the 
El Paso County population is exposed to by virtue of the additional 
contribution from international transport. Any additional control 
measures found to be feasible by the State of Texas would be subject to 
full public notice and public comment. The State of Texas has 
committed, provided that adequate information becomes available, to 
develop a contingency plan for PM-10 in the El Paso area. The State 
also anticipates the continuation of a cooperative effort to study PM-
10 air quality in the El Paso/Juarez air basin.

Final Action

    Section 110(k) of the CAA sets out provisions governing the EPA's 
review of SIP submittals (see 57 FR 13565-13566). In this final action, 
the EPA is granting approval of the El Paso, Texas, moderate 
nonattainment area PM-10 SIP because it meets all of the applicable 
requirements of the CAA.
    This SIP revision was submitted to the EPA by cover letter from the 
Governor of Texas dated November 5, 1991. OnOctober 8, 1993, the EPA 
announced its proposed approval of the moderate nonattainment area PM-
10 SIP for El Paso (58 FR 52467-52474). In that rulemaking action, the 
EPA described in detail its interpretations of title I and its 
rationale for proposing to approve the El Paso PM-10 SIP, taking into 
consideration the specific factual issues presented.
    The EPA requested public comments on all aspects of the proposal 
(please reference 58 FR 52474), and one comment letter was received 
during the comment period, which ended onNovember 8, 1993. This final 
action on the El Paso PM-10 SIP is unchanged from the October 8, 1993, 
proposed approval action. The discussion herein provides only a broad 
overview of the proposed action that the EPA is now finalizing. The 
public is referred to the October 8, 1993, proposed approval FR action 
for a full discussion of the action that the EPA is now finalizing.
    The EPA finds that the State of Texas' PM-10 SIP for the El Paso 
nonattainment area meets the RACM/RACT requirement. The State of Texas 
included a listing of RACT, federally enforceable in approved permits, 
being used at all major and other stationary sources in the El Paso 
area. In addition, the EPA views the State's prescribed burning, 
fugitive dust, and residential wood combustion control measures in 
Regulation I and the El Paso City Ordinance 9.38, as contingency 
measures that go beyond the core RACM control strategy. The EPA is also 
approving the memorandum of understanding between the City of El Paso 
and the Texas Air Control Board (TACB) (now the Texas Natural Resource 
Conservation Commission), which serves to define the division of 
responsibility for, and the commitments to carry out, the provisions of 
Regulation I and Chapter 9.38 of the City Code (City of El Paso 
episodic curtailment program regarding wood combustion).
    The State of Texas referenced section 179B of the CAA when 
presenting their modeling demonstration for El Paso. The demonstration 
showed that the El Paso PM-10 moderate nonattainment area would be in 
attainment of the PM-10 NAAQS both currently and by December 31, 1994, 
based on dispersion modeling of United States (El Paso County) PM-10 
emissions alone. After review, the EPA found the demonstration to be 
satisfactory. Details of the EPA's evaluation were discussed in 
theOctober 8, 1993, proposed approval action and in the EPA's Technical 
Support Document. Accordingly, the EPA is approving the demonstration 
as showing that the SIP provides for timely attainment of the PM-10 
NAAQS but for emissions emanating from Mexico.
    The EPA is also granting the El Paso PM-10 nonattainment area the 
exclusion from PM-10 precursor control requirements authorized under 
section 189(e) of the CAA. Finally, to satisfy section 189(c) of the 
CAA (regarding quantitative milestones and RFP), the State of Texas 
will report to the EPA every three years, beginning on November 15, 
1994, the following information regarding the El Paso nonattainment 
area: (1) The status and effectiveness of the existing controls, 
including quantification of emission reductions achieved relative to 
those projected in the El Paso PM-10 SIP submittal; (2) significant 
changes in the inventory due to new source growth or other activities 
(to allow for a comparison with the 1990 base year PM-10 emission 
inventory, and the projected 1994 PM-10 emission inventory); and (3) an 
evaluation of any additional controls which may be feasible to reduce 
exposures and/or bring the area into attainment.
    Nothing in this action should be construed as permitting, allowing, 
or establishing a precedent for any future request for revision to any 
SIP. Each request for revision to the SIP shall be considered 
separately in light of specific technical, economical, and 
environmental factors, and in relation to relevant statutory and 
regulatory requirements.
    This action makes final the action proposed at 58 FR 52467 (October 
8, 1993). As noted elsewhere in this action, the EPA received no 
adverse public comment on the proposed action. As a direct result, the 
Regional Administrator has reclassified this action from table one to 
table three under the processing procedures established at 54 FR 2214, 
January 19, 1989, and revised via memorandum from the Assistant 
Administrator for Air and Radiation to the Regional Administrators 
datedOctober 4, 1993.


    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, the EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
    SIP approvals under section 110 and subchapter I, part D, of the 
CAA do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-State relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
CAA forbids the EPA to base its actions concerning SIPs on such grounds 
(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42 
U.S.C. 7410(a)(2)).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 21, 1994. 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)).

Executive Order

    This action has been classified as a table three action by the 
Regional Administrator under the procedures published in the Federal 
Register on January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the 
Office of Management and Budget (OMB) waived tables two and three SIP 
revisions (54 FR 2222) from the requirements of section 3 of Executive 
Order 12291 for a period of two years. The EPA has submitted a request 
for a permanent waiver for table two and three SIP revisions. The OMB 
has agreed to continue the waiver until such time as it rules on the 
EPA's request. This request continues in effect under Executive Order 
12866 which superseded Executive Order 12291 onSeptember 30, 1993.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur dioxide.

    Note: Incorporation by reference of the SIP for the State of 
Texas was approved by the Director of the Federal Register on July 
1, 1982.

    Dated: December 23, 1993.
W. B. Hathaway,
Acting Regional Administrator (6A).

    40 CFR part 52 is amended as follows:


    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart SS--Texas

    2. Section 52.2270 is amended by adding paragraph (c)(79) to read 
as follows:

Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * *
    (79) A revision to the Texas SIP addressing moderate PM-10 
nonattainment area requirements for El Paso was submitted by the 
Governor of Texas by letter dated November 5, 1991. The SIP revision 
included, as per section 179B of the Clean Air Act, a modeling 
demonstration providing for timely attainment of thePM-10 National 
Ambient Air Quality Standards for El Paso but for emissions emanating 
from Mexico.
    (i) Incorporation by reference.
    (A) Revisions to Texas Air Control Board (TACB), Regulation I, 
Section 111.101, ``General Prohibition;'' Section 111.103, ``Exceptions 
to Prohibition of Outdoor Burning;'' Section 111.105, ``General 
Requirements for Allowable Outdoor Burning;'' Section 111.107, 
``Responsibility for Consequences of Outdoor Burning;'' Section 
111.143, ``Materials Handling;'' Section 111.145, ''Construction and 
Demolition,'' Subsections 111.145(1), 111.145(2); Section 111.147, 
``Roads, Streets, and Alleys,'' Subsections 111.147(1)(B), 
111.147(1)(C), 111.147(1)(D); and Section 111.149, ``Parking Lots,'' as 
adopted by the TACB on June 16, 1989.
    (B) TACB Order No. 89-03, as adopted by the TACB on June 16, 1989.
    (C) Revisions to TACB, Regulation I, Section 111.111, 
``Requirements for Specified Sources,'' Subsection 111.111(c); Section 
111.141, ``Geographic Areas of Application and Date of Compliance;'' 
Section 111.145, ``Construction and Demolition,'' Subsections 
111.145(first paragraph), 111.145(3); and Section 111.147, ``Roads, 
Streets, and Alleys,'' Subsections 111.147(first paragraph), 
111.147(1)(first paragraph), 111.147(1)(A), 111.147(1)(E), 
111.147(1)(F), and 111.147(2), as adopted by the TACB on October 25, 
    (D) TACB Order No. 91-15, as adopted by the TACB on October 25, 
    (E) City of El Paso, Texas, ordinance, Title 9 (Health and Safety), 
Chapter 9.38 (Woodburning), Section 9.38.010, ``Definitions;'' Section 
9.38.020, ``No-Burn Periods;'' Section 9.38.030, ``Notice Required;'' 
Section 9.38.040, ``Exemptions;'' Section 9.38.050, ``Rebuttable 
Presumption;'' and Section 9.38.060, ``Violation Penalty,'' as adopted 
by the City Council of the City of El Paso on December 11, 1990.
    (ii) Additional material.
    (A) November 5, 1991, narrative plan addressing the El Paso 
moderate PM-10 nonattainment area, including emission inventory, 
modeling analyses, and control measures.
    (B) A Memorandum of Understanding between the TACB and the City of 
El Paso defining the actions required and the responsibilities of each 
party pursuant to the revisions to the Texas PM-10 SIP for El Paso, 
passed and approved on November 5, 1991.
    (C) TACB certification letter dated July 27, 1989, and signed by 
Allen Eli Bell, Executive Director, TACB.
    (D) TACB certification letter dated October 28, 1991, and signed by 
Steve Spaw, Executive Director, TACB.
    (E) El Paso PM-10 SIP narrative from pages 91-92 that reads as 
follows: ``. . . provided that adequate information becomes available, 
a contingency plan will be developed in conjunction with future El Paso 
PM-10 SIP revisions. It is anticipated that EPA, TACB, the City of El 
Paso, and SEDUE will continue a cooperative effort to study the PM-10 
air quality in the El Paso/Juarez air basin. Based on the availability 
of enhanced emissions and monitoring data, as well as more 
sophisticated modeling techniques (e.g., Urban Airshed Model), future 
studies will attempt to better define the relative contributions of El 
Paso and Juarez to the PM-10 problem in the basin. At that time, a 
contingency plan can more appropriately be developed in a cooperative 
effort with Mexico.''
[FR Doc. 94-1062 Filed 1-14-94; 8:45 am]