[Federal Register Volume 65, Number 229 (Tuesday, November 28, 2000)]
[Rules and Regulations]
[Pages 70792-70795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30107]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-130-1-7473a; FRL-6907-8]


Approval and Promulgation of Implementation Plans; Texas; Excess 
Emissions During Startup, Shutdown, Malfunction and Maintenance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action on revisions to the 
Texas State Implementation Plan (SIP). These revisions concern 30 TAC, 
Chapter 101, General Air Quality Rules, General Rules, specifically, 
the reporting and recordkeeping requirements for excess emissions 
resulting from Startup, Shutdown, Malfunction, and Maintenance (SSM) 
episodes. The EPA is approving these revisions to regulate excess 
emissions in accordance with the requirements of the Federal Clean Air 
Act (the Act) and EPA's policy on excess emissions.

DATES: This rule is effective on January 29, 2001 without further 
notice, unless EPA receives adverse comment by December 28, 2000. If 
EPA receives such comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 
6 Office listed below. 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 Planning Section (6PD-
L), 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: Mr. Alan Shar, P.E., Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-6691.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What action is EPA taking?
2. Where can I find EPA policies on excess emission during SSM?
3. Is there a difference between EPA's old policy on excess emission 
and the new policy?
4. What does the new policy say?
5. What does the current Texas approved SIP rule say about excess 
emission during SSM?
6. What are advantages of the new Texas rule revision?
7. What is a Reportable Quantity?
8. What does a source do if its excess emission during SSM is less 
than RQ?
9. Who has to report an excess emission during SSM?
10. Do minor sources have to report excess emission during SSM?
11. What areas in Texas will this rule affect?
12. What is a State Implementation Plan?
13. What is the Federal approval process for a SIP?
14. What does Federal approval of a SIP mean to me?

    Throughout this document ``we,'' ``us,'' and ``our'' means EPA.

1. What Action Is EPA Taking?

    On July 31, 2000, George W. Bush, the Governor of Texas submitted 
the Texas 30 TAC Chapter 101, General Air Quality Rules, General Rules, 
as a revision to the existing Texas SIP. Texas specifically submitted 
revisions to sections 101.01 concerning Definitions; 101.06 concerning 
Upset Reporting and Recordkeeping Requirements; 101.07 concerning 
Maintenance, Startup and Shutdown Reporting, Recordkeeping and 
Operational Requirements; and 101.11 concerning Demonstrations.
    In this document, we are approving these revisions to the Texas 
SIP. For more information on the SIP revision and our evaluation, 
please refer to our Technical Support Document (TSD) dated October 
2000.

2. Where Can I Find EPA Policies on Excess Emission During SSM?

    You can find our policies on excess emissions during SSM in the 
following documents: (1) Memoranda from Kathleen Bennett, formerly 
Assistant Administrator for Air, Noise and Radiation dated September 
28, 1982, and February 15, 1983 (the Bennett Memo--old policy), and (2) 
Memorandum from Steven A. Herman, Assistant Administrator for 
Enforcement and Compliance Assurance, dated September 20, 1999 (the 
Herman Memo--new policy). The Herman Memo supplements the Bennett Memo. 
Our TSD dated October 2000, contains both of these documents.

[[Page 70793]]

3. Is There a Difference Between EPA's Old Policy on Excess 
Emission and the New Policy?

    No, there is not a significant difference between EPA's old policy 
and the new policy on excess emission. The new policy on excess 
emission during SSM episodes supplements and reaffirms the old policy. 
As in the old policy, we reiterate that, under the Act, all excess 
emissions during SSM episodes are violations of applicable emission 
limitations. However, we believe it would be inequitable to penalize a 
source for occurrences beyond the company's control. A source has the 
burden of proving that the excess emissions were due to circumstances 
entirely beyond the control of the operator or the owner.
    For a review of the Herman Memo and Bennett Memo, please refer to 
our TSD dated October, 2000.

4. What Does the New Policy Say?

    The new policy discusses our intent to generally treat excess 
emissions of lead and sulfur dioxide differently from those of other 
pollutants. See pages 1 and 2 of the attachment to the Herman Memo. The 
new policy specifies a list of objective criteria that a source with 
excess emissions should meet in order for the source to avoid potential 
enforcement action. See pages 3, and 4 of the attachment to the Herman 
Memo. The new policy also contains suggestions for creating source 
category specific rules concerning excess emission during startup and 
shutdown that will comply with the Act. See pages 5 and 6 of Attachment 
to the Herman Memo.

5. What Does the Current Texas Approved SIP Rule Say About Excess 
Emission During SSM?

    We approved the current SIP rule, for Texas, on excess emissions 
during SSM episodes in the Federal Register (37 FR 10895) dated May 31, 
1972. Since that time, Texas has adopted revisions to its rule on 
excess emissions, but those revisions have never been approved in the 
SIP. Section 101.06 of the approved SIP rule says that, a source must 
report its ``major'' upset condition with excessive emissions to the 
local air pollution control agency or the Executive Director. However, 
the approved SIP rule did not specify what constituted a ``major'' 
upset condition.

6. What Are Advantages of the New Texas Rule Revision?

    The revisions to Chapter 101, General Air Quality Rules, General 
Rules will have the following advantages by: (1) Streamlining paper 
work and resources, (2) assisting enforcement in focusing on major and 
more frequent upsets, (3) making reporting criteria more consistent 
among various media (air and hazardous waste programs), and (4) 
adopting the burden of proof criteria similar to those listed in the 
Herman Memo of September 20, 1999.

7. What Is a Reportable Quantity?

    Reportable Quantity (RQ) is a threshold limit below which a source 
does not have to report its excess emission to the TNRCC. In this rule 
when a source exceeds an emission limitation by so many pounds of an 
individual air contaminant or so many pounds of mixtures of air 
contaminants, the source will have to report its excess emissions to 
the TNRCC. We have adopted and used the RQ concept in the 40 CFR parts 
355 and 370 (63 FR 31267, dated June 8, 1998), Emergency Planning and 
Community Right-To-Know Act (EPCRA), and in the Table 302.4 of 40 CFR 
Chapter 1 (July 1, 1997 Edition), the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA), in the past. 
Therefore, use of RQ as a gauge or baseline default value for reporting 
emissions or discharges is not a new regulatory idea.

8. What Does a Source Do If Its Excess Emission During SSM Is Less 
Than RQ?

    If excess emission during an SSM episode is less than RQ, the 
source does not have to report that particular excess emission to the 
TNRCC. The source that experiences an excess emission less than RQ will 
still have to maintain information about such excess emissions and make 
the information available to the State and EPA during inspections or 
upon request.

9. Who Has To Report an Excess Emission During SSM?

    All sources that experience an excess emission equal to or greater 
than RQ, during an SSM episode, need to report their excess emissions. 
This rule does not exempt a small source from reporting its excess 
emission during an SSM episode, if the excess emission equals or 
exceeds the RQ limit.

10. Do Minor Sources Have To Report Their Excess Emission During 
SSM?

    Yes, minor sources have to report their excess emission during an 
SSM episode. Synthetic minor sources have to report their excess 
emission during SSM episodes, too. Reporting excess emissions has to do 
with the amount of RQ, and has nothing to do with the size (minor, 
synthetic minor, or major) of a facility or the source category/type of 
facility.

11. What Is a State Implementation Plan?

    Section 110 of the Act requires States to develop air pollution 
regulations and control strategies to ensure that State air quality 
meets the NAAQS that EPA has established. Under section 109 of the Act, 
EPA established the NAAQS to protect public health. The NAAQS address 
six criteria pollutants. These criteria pollutants are: Carbon 
monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur 
dioxide.
    Each State must submit these regulations and control strategies to 
us for approval and incorporation into the federally enforceable SIP. 
Each State has a SIP designed to protect air quality. These SIPs can be 
extensive, containing State regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

12. What Is the Federal Approval Process for a SIP?

    When a State wants to incorporate its regulations into the 
federally enforceable SIP, the State must formally adopt the 
regulations and control strategies consistent with State and Federal 
requirements. This process includes a public notice, a public hearing, 
a public comment period, and a formal adoption by a state-authorized 
rule making body.
    Once a State adopts a rule, regulation, or control strategy, the 
State may submit the adopted provisions to us and request that we 
include these provisions in the federally enforceable SIP. We must then 
decide on an appropriate Federal action, provide public notice on this 
action, and seek additional public comment regarding this action. If we 
receive adverse comments, we must address them prior to a final action.
    Under section 110 of the Act, when we approve all State regulations 
and supporting information, those State regulations and supporting 
information become a part of the federally approved SIP. You can find 
records of these SIP actions in the Code of Federal Regulations at 
Title 40, part 52, entitled ``Approval and Promulgation of 
Implementation Plans.'' The actual State regulations that we approved 
are not reproduced in their entirety in the CFR but are ``incorporated 
by reference,'' which means that we have approved a given State 
regulation with a specific effective date.

[[Page 70794]]

13. What Does Federal Approval of a SIP Mean to Me?

    A State may enforce State regulations before and after we 
incorporate those regulations into a federally approved SIP. After we 
incorporate those regulations into a federally approved SIP, both EPA 
and the public may also take enforcement action against violators of 
these regulations.

14. What Areas in Texas Will These Rules Affect?

    These rule revisions will affect the entire State of Texas and is 
not specific to a certain area or part of the State. If you are in 
Texas, you need to refer to these rules to find out if and how these 
rules will affect you.

Final Action

    The EPA is publishing this rule without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the ``Proposed Rules'' section of today's Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if adverse comments 
are received. This rule will be effective on January 29, 2001 without 
further notice unless we receive adverse comment by December 28, 2000. 
If EPA receives adverse comments, we will publish a timely withdrawal 
in the Federal Register informing the public that the rule will not 
take effect. We will address all public comments in a subsequent final 
rule based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. This proposed action merely approves state law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Regional Administrator 
certifies that this proposed rule will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to 
approve pre-existing requirements under state law and does not impose 
any additional enforceable duty beyond that required by state law, it 
does not contain any unfunded mandate or significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Public Law 104-4). For the same reason, this proposed rule 
also does not significantly or uniquely affect the communities of 
tribal governments, as specified by Executive Order 13084 (63 FR 27655, 
May 10, 1998). This proposed 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 (64 FR 43255, August 10, 1999), 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 Clean Air Act. This proposed rule 
also is not subject to Executive Order 13045 (62 FR 19885, April 23, 
1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. The proposed rule does 
not involve special consideration of environmental justice related 
issues as required by Executive Order 12898 (59 FR 7629, February 16, 
1994). As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this proposed rule, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, 
March 15, 1988) by examining the takings implications of the rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order. This proposed rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: November 15, 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 the table in paragraph (c) is amended under 
Chapter 101 by:
    a. Revising the heading immediately above the entry for section 
101.1 to read ``Chapter 101--General Air Quality Rules, Subchapter A--
General Rules.''
    b. Revising the entries for sections 101.1, 101.6, 101.7, and 
101.11.
    The revisions read as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
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                                                     State
         State citation           Title/Subject     adoption           EPA citation date           Explanation
                                                      date
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                                     Chapter 101--General Air Quality Rules
                                           Subchapter A--General Rules
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Section 101.1..................  Definitions....   06/29/2000  11/28/00 65 FR 70794............  Reportable
                                                                                                  Quantity and
                                                                                                  Reportable
                                                                                                  Upset only.
 

[[Page 70795]]

 
*                  *                  *                  *                  *                  *
                                                        *
Section 101.6..................  Upset reporting   06/29/2000  11/28/00 65 FR 70794............  ...............
                                  and
                                  recordkeeping
                                  requirements.
Section 101.7..................  Maintenance,      06/29/2000  11/28/00 65 FR 70794............  ...............
                                  startup and
                                  shutdown
                                  reporting,
                                  recordkeeping
                                  and
                                  operational
                                  requirements.
*                  *                  *                  *                  *                  *
                                                        *
Section 101.11.................  Demonstrations.   06/29/2000  11/28/00 65 FR 70794............  ...............
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 00-30107 Filed 11-27-00; 8:45 am]
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