[Federal Register Volume 69, Number 48 (Thursday, March 11, 2004)]
[Proposed Rules]
[Pages 11577-11580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5511]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-165-1-7610; FRL-7635-1]


Approval and Promulgation of Implementation Plans; Texas; 
Revisions to Regulations for Control of Air Pollution by Permits for 
New Sources and Modifications Including Incorporation of Marine Vessel 
Emissions in Applicability Determinations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to approve revisions to the Texas State 
Implementation Plan (SIP). This includes revisions that the Texas 
Commission on Environmental Quality (TCEQ) submitted to EPA on 
September 16, 2002, to revise the definitions of ``building, structure, 
facility, or installation'' and ``secondary emissions'' as defined in 
section 116.12 and section 116.160. This also includes revisions to 
section 116.160 and section 116.162 to incorporate updated Federal 
regulation citations. This action is being taken under section 110 of 
the Federal Clean Air Act, as amended (the Act or CAA).

DATES: Comments on the proposed action must be received by April 12, 
2004.

ADDRESSES: Comments may be submitted electronically, by mail, or 
through hand delivery/courier. Follow the detailed instructions as 
provided in the General Information section of the SUPPLEMENTARY 
INFORMATION below.

FOR FURTHER INFORMATION CONTACT: Stephanie Kordzi of the Air Permits 
Section at (214) 665-7520, or [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' means EPA.

Table of Contents

I. What State Rules Are Being Addressed in the Document?
II. What is the legal basis for EPA's proposed approval of these 
State rules?
III. Have the Requirements for a SIP Revision Been Met?
IV. What Action is EPA Taking?
V. General Information
VI. Statutory and Executive Order Reviews

I. What State Rules Are Being Addressed in This Document?

    In today's action we are proposing to approve into the Texas SIP 
revisions to Title 30 of the Texas Administrative Code (30 TAC) 
sections 116.12, Nonattainment Review Definitions; 116.160, Prevention 
of Significant Deterioration Requirements; and 116.162, Evaluation of 
Air Quality Impacts. The TCEQ adopted these revisions on October 10, 
2001, and submitted the revisions to us for approval as a revision to 
the SIP on September 16, 2002.
    30 TAC section 116.12--Nonattainment Review. The previous State 
version of this section, which is the existing SIP-approved version 
(see 65 FR 43994, July 17, 2000), excludes the ``activities of any 
vessel'' from the definition of ``building, structure, facility, or 
installation.'' The revised version that the State adopted on October 
10, 2001, and that the State has submitted for EPA's approval, deletes 
the ``except the activities of any vessel'' clause from 116.12(4). 
Texas has explained that this change will allow the inclusion of marine 
vessel emissions in applicability determinations for nonattainment 
permits.
    30 TAC section 116.160--Prevention of Significant Deterioration 
Requirements. The previous State version of this section, which is the 
existing SIP-approved version (see 67 FR 58697, September 18, 2002), 
incorporates by reference the Federal Prevention of Significant 
Deterioration (PSD) regulations at 40 CFR 52.21, as amended June 3, 
1993. Those regulations excluded the ``activities of any vessel'' from 
the definition of ``building, structure, facility, or installation.'' 
The revised version that the State adopted on October 10, 2001, and 
that the State has submitted for EPA's approval, excludes the CFR 
definition of ``building, structure, facility, or installation,'' 
because the CFR definition includes language vacated by the court in 
Natural Resources Defense Council v. EPA, 725 F.2d 761 (D.C. Cir. 1984) 
(see discussion below under ``Legal Background''). Instead, the revised 
version of section 116.160 defines ``building, structure, facility, or 
installation'' consistent with the definition in revised section 
116.12, discussed above. Texas has explained that this change will 
allow the inclusion of marine vessel emissions in applicability 
determinations for PSD permits. In addition, the revised section 
116.160 replaces the definition of ``secondary emissions'' at 40 CFR 
52.21 with language consistent with the NRDC decision.
    The revised section 116.160 otherwise incorporates the version of 
the Federal PSD air quality regulations promulgated at 40 CFR 52.21 in 
1996, as well as the most recent version of 40 CFR 51.301 (amended 
1999).

[[Page 11578]]

    Finally, revised subsections 116.160(d) and (e) make minor changes 
such as clarifying references to the ``administrator'' and ``executive 
director.''
    30 TAC section 116.162, Evaluation of Air Quality Impacts. EPA 
approved the previous State version of this section into the SIP on 
August 19, 1997. 62 FR 44083. The new version submitted to EPA contains 
only minor typographical and citation changes.

II. What Is the Legal Basis for EPA's Proposed Approval of These State 
Rules?

    Section 110 of the Act requires States to develop air pollution 
regulations and control strategies to ensure that State air quality 
meets the National Ambient Air Quality Standards. Each State must 
submit these regulations and control strategies to us for approval and 
incorporation into the Federally-enforceable SIP. In order for State 
regulations to be incorporated into the Federally-enforceable SIP, 
States must formally adopt these regulations and control strategies 
consistent with State and Federal requirements. Section 116 of the Act 
provides that the States retain the authority to adopt measures no less 
stringent than federal requirements, unless otherwise preempted.
    Once a State adopts a rule, regulation, or control strategy, the 
State may submit it to us for inclusion into the SIP in accordance with 
section 110 of the Act. We must then decide on an appropriate Federal 
action, provide public notice and seek additional comment regarding the 
proposed Federal action on the State submission. If we receive relevant 
adverse comments, we must address them before taking 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.
    Additional details on the legal basis for this proposed rule may be 
found in the Technical Support Document (TSD) for this action.

III. Have the Requirements for Approval of a SIP Revision Been Met?

    Currently, the State of Texas issues and enforces PSD permits 
directly in all areas of the State without final approval by EPA, with 
the exception of Indian lands and situations where the applicability 
determinations would be affected by dockside emissions of vessels. As 
currently approved, Chapter 116 incorporates the PSD/Nonattainment (NA) 
review permitting requirements and definitions from the vacated 1982 
regulations in section 116.12(4) for NA and section 116.160(a) for PSD.
    Final approval of the changes to section 116.12 and section 
116.160(c) will grant full approval of the State's preconstruction 
permitting SIP for all sources, except for those sources located on 
land under the control of Indian governing bodies. These changes to 
section 116.12 are not inconsistent with the requirements of the Clean 
Air Act.

IV. What Action Is EPA Taking?

    We are approving as a revision to the Texas SIP revisions of 30 TAC 
sections 116.12, Nonattainment (NA) Review Definitions; 116.160, 
Prevention of Significant Deterioration Requirements; and 116.162, 
Evaluation of Air Quality Impacts, which Texas submitted on September 
16, 2002.
    We are also proposing to revise 40 CFR 52.2303, Significant 
deterioration of air quality, as follows. First, we are proposing to 
remove paragraph (d), which retained applicable requirements of 40 CFR 
52.21 for new major sources or major modifications to existing 
stationary sources for which applicability determinations of PSD would 
be affected by dockside emissions of vessels. Because the regulations 
that we are approving today enable Texas to make PSD applicability 
determinations for such sources, paragraph (d) is no longer necessary. 
Second, we are proposing to revise and reorganize paragraph (a) to 
reflect the current information concerning Texas' PSD program and to 
make paragraph (a) easier to understand.

V. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. EPA 
has established an official public rulemaking file for this action 
under TX-165-1-7610. The official public rulemaking file consists of 
the documents specifically referenced in this action, any public 
comments received, and other information related to this action. 
Although a part of the official docket, the official public rulemaking 
file does not include Confidential Business Information (CBI) or other 
information the disclosure of which is restricted by statute. The 
official public rulemaking file is available for public viewing at the 
Air Permitting Section, EPA Region 6, 1445 Ross Avenue, Dallas, TX. EPA 
requests that if at all possible you contact the person listed in the 
FOR FURTHER INFORMATION CONTACT section to schedule your inspection. 
The Regional Offices official hours of business are Monday through 
Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.
    2. Copies of the State submittal and EPA's Technical Support 
Document are also available for public inspection during normal 
business hours, by appointment at the State air agency: Texas 
Commission on Environmental Quality, Office of Air Quality, 12124 Park 
35 Circle, Austin, Texas 78753.
    3. Electronic Access. You may access this Federal Register document 
electronically through the Regulations.gov Web site at http://www.regulations.gov where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and are open for comment. For public 
commenters, it is important to note that EPA's policy is that public 
comments, whether submitted electronically or in paper, will be made 
available for public viewing at the EPA Regional Office, as EPA 
receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information the disclosure of which 
is restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

B. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number, TX-165-1-7610, in the 
subject line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments.
    1. Electronically. If you wish to submit comments electronically 
(via e-mail, Regulations.gov, or on disk or CD-ROM), EPA recommends 
that you include your name, mailing address, and an e-mail address or 
other contact information in the body of your comment. Also include 
this contact information on the outside of any disk or CD ROM you 
submit, and in any

[[Page 11579]]

cover letter accompanying the disk or CD ROM. This ensures that you can 
be identified as the submitter of the comment and allows EPA to contact 
you in case EPA cannot read your comment due to technical difficulties 
or needs further information on the substance of your comment. The 
EPA's policy is that EPA will not edit your comments. Any identifying 
or contact information provided in the body of a comment will be 
included as part of the comment that is placed in the public rulemaking 
file. If EPA cannot read your comment due to technical difficulties and 
cannot contact you for clarification, EPA may not be able to consider 
your comment.
    a. E-mail Comments may be submitted by electronic mail (e-mail) to 
Ms. Stephanie Kordzi at [email protected], Subject ``Public 
comment on ID No. TX-165-1-7610.'' In contrast to the Regulations.gov 
Web site, EPA's e-mail system is not an ``anonymous'' system. If you 
send an e-mail comment directly to EPA, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the official public rulemaking file.
    b. Regulations.gov. Comments may be submitted electronically at the 
Regulations.gov Web site, the central online rulemaking portal of the 
United States government. Every effort is made to ensure that the Web 
site includes all rule and proposed rule notices that are currently 
open for public comment. You may access the Regulations.gov Web site at 
http://www.regulations.gov. Select ``Environmental Protection Agency'' 
at the top of the page and click on the ``Go'' button. The list of 
current EPA actions available for comment will be displayed. Select the 
appropriate action and follow the online instructions for submitting 
comments. Unlike EPA's e-mail system, the Regulations.gov Web site is 
an ``anonymous'' system, which means that any personal information, e-
mail address, or other contact information will not be collected unless 
it is provided in the text of the comment. See the Privacy Notice at 
the Regulations.gov Web site for further information. Please be advised 
that EPA cannot contact you for any necessary clarification unless your 
contact information is included in the body of comments submitted 
through the Regulations.gov Web site.
    c. Disk or CD ROM. You may submit comments on a disk or CD ROM that 
you mail to: Mr. David Neleigh, Chief, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202-2733. Please include the text ``Public comment on ID No. 
TX-165-1-7610'' on the disk or CD ROM. These electronic submissions 
will be accepted in WordPerfect, Word, or ASCII file format. You should 
avoid the use of special characters and any form of encryption.
    2. By Mail. Send your comments to: Mr. David Neleigh, Chief, Air 
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733. Please include the text 
``Public comment on ID No. TX-165-1-7610'' in the subject line of the 
first page of your comments.
    3. By Hand Delivery or Courier. Deliver your written comments or 
comments on a disk or CD ROM to: Mr. David Neleigh, Chief, Air Permits 
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, Attention ``Public comment on ID 
No. TX-165-1-7610.'' Such deliveries are only accepted during official 
hours of business, which are Monday through Friday, 8:30 a.m. to 4:00 
p.m., excluding Federal holidays.
    4. By Facsimile. Fax your comments to: (214) 665-7263, Attention 
``Public comment on ID No. TX-165-1-7610.''

C. How Should I Submit CBI to the Agency?

    You may assert a business confidentiality claim covering CBI 
included in comments submitted by mail or hand delivery in either paper 
or electronic format. CBI should not be submitted via e-mail or at the 
Regulations.gov Web site. Clearly mark any part or all of the 
information submitted which is claimed as CBI at the time the comment 
is submitted to EPA. CBI should be submitted separately, if possible, 
to facilitate handling by EPA. Submit one complete version of the 
comment that includes the properly labeled CBI for EPA's official 
administrative record and one copy that does not contain the CBI to be 
included in the public rulemaking file. If you submit CBI on a disk or 
CD ROM, mark the outside of the disk or the CD ROM as CBI and then 
identify electronically within the disk or CD ROM the specific 
information that is CBI. Also submit a non-CBI version if possible. 
Information which is properly labeled as CBI and submitted by mail or 
hand delivery will be disclosed only in accordance with procedures set 
forth in 40 CFR part 2. For comments submitted by EPA's e-mail system 
or through the Regulations.gov Web site, no CBI claim may be asserted. 
Do not submit CBI to the Regulations.gov Web site or via EPA's e-mail 
system. Any claim of CBI will be waived for comments received through 
the Regulations.gov Web site or EPA's e-mail system. For further advice 
on submitting CBI to the Agency, contact the person listed in the For 
Further Information Contact section of this notice.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate ID No. 
in the subject line on the first page of your response. It would also 
be helpful if you provided the name, date, and Federal Register 
citation related to your comments.

VI. Statutory and Executive Order Reviews

    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. For this reason, this proposed action is also not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). This action merely proposes to approve State law 
as meeting Federal requirements and imposes no additional requirements 
beyond those imposed by State law. Accordingly, the 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 (Pub. L. 104-4).

[[Page 11580]]

    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000). This proposed action also does not have Federalism implications 
because it does not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999). This action merely proposes to approve 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, ``Protection of Children from Environmental Health Risks and 
Safety Risks'' (62 FR 19885, April 23, 1997), because it is not 
economically significant.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This 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, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen oxides, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: February 24, 2004.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. 04-5511 Filed 3-10-04; 8:45 am]
BILLING CODE 6560-50-P