[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
--------------------------------------------------------------------------------------------------------------------------------------------------------
 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.

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
----------------------------------------------------------------------------------------------------------------
          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
                                                                                  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.
----------------------------------------------------------------------------------------------------------------


[[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
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------

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).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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
----------------------------------------------------------------------------------------------------------------
  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.

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
----------------------------------------------------------------------------------------------------------------
     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).
----------------------------------------------------------------------------------------------------------------


[[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
----------------------------------------------------------------------------------------------------------------
                                    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.
----------------------------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------
                       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  .

[[Page 43991]]

 
------------------------------------------------------------------------
           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.
------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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 NOX control 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 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
------------------------------------------------------------------------
         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.
------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 00-17876 Filed 7-14-00; 8:45 am]
BILLING CODE 6560-50-U