[Federal Register Volume 69, Number 140 (Thursday, July 22, 2004)]
[Rules and Regulations]
[Pages 43752-43755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16202]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-165-1-7610; FRL-7788-2]


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: Final rule.

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SUMMARY: EPA is taking final action 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.'' This also 
includes revisions 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: This rule is effective on September 20, 2004.

ADDRESSES: Copies of the documents relevant to this action are in the 
official file which is available at the Air Planning Section (6PD-L), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, 
Texas 75202-2733. The file will be made available by appointment for 
public inspection in the Region 6 FOIA Review Room between the hours of 
8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the 
person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or 
Mr. Bill Deese at (214) 665-7253 to make an appointment. If possible, 
please make the appointment at least two working days in advance of 
your visit. There will be a 15 cent per page fee for making photocopies 
of documents. On the day of the visit, please check in at the EPA 
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    Copies of any State submittals and EPA's technical support document 
are also available for public inspection at the State Air Agency listed 
below during official business hours by appointment: Texas Commission 
on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, 
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Stephanie Kordzi, Air Permits Section 
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7520; fax 
number (214) 665-6762; e-mail address [email protected].

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

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 Approval of a SIP Revision Been Met?
IV. Final Action
V. Statutory and Executive Order Reviews

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

    In today's action we are approving 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

[[Page 43753]]

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 section 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).
    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. We 
did not receive any comments during the public comment period on the 
proposed rule.
    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 final 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. Final Action

    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 section 
116.162, Evaluation of Air Quality Impacts, which Texas submitted on 
September 16, 2002.
    We are revising 40 CFR 52.2303, Significant deterioration of air 
quality, as follows. First, we are removing 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 revising 
and reorganizing paragraph (a) to reflect the current information 
concerning Texas' PSD program and to make paragraph (a) easier to 
understand.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 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 approves State law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator certifies that this 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 approves 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).
    This 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

[[Page 43754]]

Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000). This 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 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 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 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.).
    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. 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 cannot 
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).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 20, 2004. 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, Intergovernmental relations, Lead, Nitrogen oxides, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides, Volatile organic compounds.

    Dated: July 7, 2004.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.


0
Chapter I, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7402 et seq.

Subpart SS--Texas

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2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended as follows:
0
a. Under chapter 116, subchapter A, by revising the existing entry for 
section 116.12;
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b. Under chapter 116, subchapter B, division 6, by revising the 
existing entries for sections 116.160 and 116.162.
    The revised entries read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
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                                                        State  approval/
         State citation              Title/subject       submittal date    EPA approval date      Explanation
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                                                  * * * * * * *
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          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
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                                            Subchapter A--Definitions
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                                                  * * * * * * *
---------------------------------
Section 116.12..................  Nonattainment                 10/10/01  [7/22/04 Insert      .................
                                   Review Definitions.                     Federal Register
                                                                           page number].
---------------------------------
 
                                                  * * * * * * *
---------------------------------
                                     Subchapter B--New Source Review Permits
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[[Page 43755]]

 
                                                  * * * * * * *
---------------------------------
                           Division 6--Prevention of Significant Deterioration Review
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Section 116.160.................  Prevention of                 10/10/01  [7/22/04 Insert      .................
                                   Significant                             Federal Register
                                   Deterioration                           page number].
                                   Review
                                   Requirements.
---------------------------------
                                                  * * * * * * *
---------------------------------
Section 116.162.................  Evaluation of Air             10/10/01  [7/22/04 Insert      .................
                                   Quality Impacts.                        Federal Register
                                                                           page number].
---------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.2303 is amended as follows:
0
a. Paragraph (d) is removed.
0
b. Paragraph (a) is revised to read as follows:


Sec.  52.2303  Significant deterioration of air quality.

    (a) The plan submitted by Texas is approved as meeting the 
requirements of part C, Clean Air Act for preventing significant 
deterioration of air quality. The plan consists of the following:
    (1) Prevention of significant deterioration plan requirements as 
follows:
    (i) December 11, 1985 (as adopted by the Texas Air Control Board 
(TACB) on July 26, 1985).
    (ii) October 26, 1987 (as revised by TACB on July 17, 1987).
    (iii) September 29, 1988 (as revised by TACB on July 15, 1988).
    (iv) February 18, 1991 (as revised by TACB on December 14, 1990).
    (v) May 13, 1992 (as revised by TACB on May 8, 1992).
    (vi) August 31, 1993 (as recodified, revised and adopted by TACB on 
August 16, 1993).
    (vii) July 12, 1995 (as revised by the Texas Natural Resource 
Conservation Commission (TNRCC) on March 1, 1995) containing revisions 
to chapter 116--Control of Air Pollution for New Construction or 
Modification, sections 116.10, 116.141 and 116.160-116.163.
    (viii) July 22, 1998 (as revised by TNRCC on June 17, 1998) 
containing revisions to chapter 116--Control of Air Pollution for New 
Construction or Modification, sections 116.160 and 116.161.
    (ix) September 16, 2002 (as revised by TNRCC on October 10, 2001) 
containing revisions to chapter 116--Control of Air Pollution for New 
Construction or Modification, sections 116.160 and 116.162.
    (2) The Prevention of Significant Deterioration (PSD) Supplement 
document, submitted October 26, 1987 (as adopted by TACB on July 17, 
1987).
    (3) Revision to General Rules, Rule 101.20(3), submitted December 
11, 1985 (as adopted by TACB on July 26, 1985).
* * * * *

[FR Doc. 04-16202 Filed 7-21-04; 8:45 am]
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