[Federal Register Volume 78, Number 24 (Tuesday, February 5, 2013)]
[Proposed Rules]
[Pages 8076-8083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02499]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0600; FRL-9776-4]


Approval and Promulgation of Implementation Plans; Texas; 
Revisions to New Source Review (NSR) State Implementation Plan (SIP); 
Emergency Orders

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing disapproval of revisions to the SIP for the 
State of Texas that relate to Emergency Orders. This includes portions 
of SIP revisions that relate to Emergency Orders that were submitted by 
Texas on August 31, 1993; December 10, 1998; February 1, 2006; and July 
17, 2006. EPA is proposing disapproval of these revisions because these 
regulations do not meet the requirement of the Clean Air Act (the 
``Act'' or ``CAA''), EPA regulations, and applicable policy and 
guidance. EPA is proposing this action under section 110 and parts C 
and D of Title I of the Act. EPA is returning the non-air portions of 
the aforementioned SIP submittals to the State because these provisions 
cannot be included in the SIP.

DATES: Comments must be received on or before March 7, 2013.

ADDRESSES: Submit your comments identified by Docket ID No. EPA-R06-
OAR-2006-0600 by one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    (2) Email: Ms. Ashley Mohr at [email protected].
    (3) Fax: Ms. Ashley Mohr, Air Permits Section (6PD-R), at fax 
number 214-665-6762.
    (4) Mail: Ms. Ashley Mohr, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
    (5) Hand or Courier Delivery: Ms. Ashley Mohr, Air Permits Section 
(6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733. Such deliveries are accepted only between the 
hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. 
Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2006-0600. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any

[[Page 8077]]

personal information provided, unless the comment includes information 
claimed to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Do not submit 
information that you consider to be CBI or otherwise protected through 
http://www.regulations.gov or email. The http://www.regulations.gov web 
site is an ``anonymous access'' system, which means that EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an email comment directly to EPA 
without going through http://www.regulations.gov your email address 
will be automatically captured and included as part of the comment that 
is placed in the public docket and made available on the internet. If 
you submit an electronic comment, EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Permits 
Section (6PD-R), 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 Freedom of 
Information Act 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.
    The State submittals, which are part of the EPA docket, are also 
available for public inspection at the State Air Agency during official 
business hours by appointment: Texas Commission on Environmental 
Quality (TCEQ), Office of Air Quality, 12124 Park 35 Circle, Austin, 
Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Ashley Mohr, Air Permits Section 
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733; telephone (214) 665-7289; fax 
number (214) 665-6762; email address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever any 
reference to ``we,'' ``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Background
II. What is EPA's evaluation of the Texas Emergency Orders Program?
    A. Does the Emergency Orders Program meet the requirements for 
projects that are subject to New Source Review (NSR)?
    1. Summary of the Federal Program for Major NSR
    2. What is EPA's evaluation?
III. Proposed Action
IV. Statutory and Executive Order Reviews

I. Background

    On August 31, 1993, TCEQ submitted its regulations for Emergency 
Orders. Revisions to these regulations were submitted on December 10, 
1998; February 1, 2006; and July 17, 2006. The pending SIP revisions 
are summarized in Tables 1 and 2 below. Additional information is 
included in the Technical Support Document (TSD) for this action, which 
is in the docket.

                       Table 1--Summary of Pending SIP Submittals Addressed in This Action
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                                                                          Date
                                                Date         Date      effective   Sections related to emergency
       Description of SIP submittal          submitted    adopted by    as State               orders
                                               to EPA       State         rule
----------------------------------------------------------------------------------------------------------------
Original Recodification of Chapter 116....    8/31/1993    8/16/1993    9/13/1993  Chapter 116: Submittal of
                                                                                    sections 116.410 through
                                                                                    116.418.
Emergency and Temporary Orders............   12/10/1998   11/18/1998   12/10/1998  Chapter 35: Submittal of
                                                                                    sections 35.1-35.3, 35.11-
                                                                                    35.13, 35.21-35-30, and
                                                                                    35.801-35.809
                                                                                   Chapter 116: Revisions to
                                                                                    section 116.410; Repeal of
                                                                                    sections 116.411-116.418,
                                                                                    which were replaced by
                                                                                    sections 35.802-35.809
Federal New Source Review Permits Rules...     2/1/2006    1/11/2006     2/1/2006  Chapter 116: Recodification
                                                                                    of Sec.   116.410 to Sec.
                                                                                    116.1200.
Revision to Provisions for Emergency          7/17/2006    6/28/2006    7/19/2006  Chapter 35: Revisions to
 Orders.                                                                            sections 35.801, 35.802,
                                                                                    35.804, 35.805, 35,807, and
                                                                                    35.808.
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[[Page 8078]]


                     Table 2--Summary of the Individual Revisions to Each Section Evaluated
----------------------------------------------------------------------------------------------------------------
                                                Date                   Effective
              Section--title                 submitted    Adopted by    as State              Comments
                                               to EPA       State         rule
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   30 TAC Chapter 35--Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permits
                                                   Conditions
================================================================================================================
                              Subchapter A--Purpose, Applicability, and Definitions
----------------------------------------------------------------------------------------------------------------
Section 35.1--Purpose.....................   12/10/1998   11/18/1998   12/10/1998  Initial adoption.
Section 35.2--Applicability...............   12/10/1998   11/18/1998   12/10/1998  Initial adoption.
Section 35.3--Definitions.................   12/10/1998   11/18/1998   12/10/1998  Initial adoption.
----------------------------------------------------------------------------------------------------------------
                                Subchapter B--Authority of the Executive Director
================================================================================================================
Section 35.11--Purpose and Applicability........................................................................
Section 35.12--Authority of the Executive Director..............................................................
Section 35.13--Eligibility of the Executive Director............................................................
----------------------------------------------------------------------------------------------------------------
                                        Subchapter C--General Provisions
================================================================================================================
Section 35.21--Action by the Commission or Executive Director...................................................
Section 35.22--Term and Renewal of Orders.......................................................................
Sec.   35.23--Effect of Orders..................................................................................
Section 35.24--Application for Emergency or Temporary Orders....................................................
Section 35.25--Notice and Opportunity for Hearing...............................................................
Section 35.26--Contents of Emergency or Temporary Orders........................................................
Section 35.27--Hearing Required.................................................................................
Section 35.28--Hearing Requests.................................................................................
Sec.   35.29--Procedures for a Hearing..........................................................................
Section 35.30--Application Fees.................................................................................
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                                          Subchapter K--Air Orders \1\
================================================================================================================
Section 35.801--Emergency Orders Because of Catastrophe.........................................................
 
Sec.  Sec.   35.802--Application for an Emergency Order.........................................................
 
 
 
 
 
 
Section 35.803--Public Notification.............................................................................
 
 
Section 35.804--Issuance of an Emergency Order..................................................................
 
Section 35.805--Contents of an Emergency Order..................................................................
 
 
 
 
 
 
Section 35.806--Requirement to Apply for a Permit or Modification...............................................
 
 
Section 35.807--Affirmation of an Emergency Order...............................................................

[[Page 8079]]

 
 
 
 
 
 
 
 
Section 35.808--Modification of an Emergency Order..............................................................
 
 
 
Section 35.809--Setting Aside an Emergency Order................................................................
 
 
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          30 TAC Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Section 116.1200--Applicability...........    8/31/1993    8/16/1993    9/13/1993  Initial adoption as section
                                                                                    116.410.
                                             12/10/1998   11/18/1998   12/10/1998  Revised introductory
                                                                                    paragraph.
                                               2/1/2006    1/11/2006     2/1/2006  Redesignated to section
                                                                                    116.1200.
----------------------------------------------------------------------------------------------------------------

    In general, the regulations governing Emergency Orders are found in 
30 TAC Chapter 35--Emergency and Temporary Orders and Permits; 
Temporary Suspension or Amendment of Permit Conditions. These 
regulations provide the process by which the Texas Commission on 
Environmental Quality (TCEQ) may issue a Temporary Order, Emergency 
Order, Mandatory Order, Permissive Order, and Prohibitory Order and 
include provisions that apply to both air orders and non-air orders. As 
part of this action, we are reviewing only those portions that are 
applicable to the issuance of air Emergency Orders. Under the CAA, SIPs 
can only include provisions addressing criteria pollutants and their 
precursors, so the portions of the Texas submittals related to non-air 
orders cannot be included in the SIP. Therefore, EPA is returning the 
non-air portions of the aforementioned submittals to the State.
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    \1\ On August 18, 1993, sections 116.411 through 116.418 were 
adopted under Chapter 116, Subchapter E--Emergency Orders. On 
November 18, 1998, these regulations were replaced with sections 
35.802 through 35.809 and placed in Chapter 35, Subchapter K.
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    Under the provisions in 30 TAC Chapter 35, the TCEQ may issue an 
Emergency Order under its air quality program which authorizes 
immediate action for the addition, replacement, or repair of 
facilities, control equipment, or the repair or replacement of roads, 
bridges, and other infrastructure whenever a catastrophe necessitates 
such construction and emissions otherwise precluded under the Texas 
Clean Air Act. See 30 TAC 35.801. Additional information on these 
regulations, and the specific provisions included in the regulations, 
is provided in TSD for this action.
    Today, EPA proposes to disapprove the regulations identified in 
Table 2 above, except for provisions that do not relate to the air 
quality requirements of the Act. EPA is returning the following non-air 
portions of the submitted rules to the State: 30 TAC 35.13; 35.24(b) 
and (e)(6)-(7); and 35.25(e)(1)-(8) and (11)-(15). While we are 
proposing disapproval of the Emergency Orders Program, EPA does 
recognize the merits of such a state-only Program that allows for 
application review and order issuance to authorize proposed actions 
following catastrophes that often necessitate immediate action by 
owners and operators to minimize additional downstream impacts 
resulting from the catastrophe. Texas's Emergency Orders Program does 
allow for coordination between the source and the TCEQ to facilitate 
expedited review while maintaining a review process, as described in 
the June 17, 2006 SIP submittal. Other State and local agencies operate 
programs similar to the Emergency Orders program. In these cases, the 
regulations containing the provisions related to those programs are 
located within the states' air quality permitting regulations, not in 
the SIP. EPA may exercise its enforcement discretion on a case-by-case 
basis to evaluate the owner or operator's proposed action in response 
to a catastrophe and utilizes enforcement discretion to allow for 
appropriate immediate actions to minimize impacts and restore the 
sources to full operation.

II. What is EPA's evaluation of the Texas Emergency Orders Program?

A. Does the Emergency Orders Program meet the requirements for projects 
that are subject to New Source Review (NSR)?

    The Emergency Orders Program could be used to authorize 
construction via the issuance of an Order prior to a source submitting 
an application for a NSR preconstruction permit. The issued Emergency 
Order is an interim authorization for the emissions of air contaminants 
that are associated with the construction or modification of any source 
or facility in response to a catastrophe, as defined in 30 TAC 35.801. 
Under the Emergency Orders Program, an owner or operator can apply for 
an Emergency Order that would ``authorize immediate action for the 
addition, replacement, or repair of facilities or control equipment, or 
the repair or replacement of roads, bridges, or other infrastructure, 
and authorizing associated emissions of air contaminants.'' See 30 TAC 
35.801.

[[Page 8080]]

1. Summary of the Federal Program for Major NSR
    The requirements for Major NSR are in Title I, Parts C and D of the 
CAA and in 40 CFR 51.165 and 51.166 and apply to the construction and 
modification of major stationary sources. The Major NSR requirements 
apply to projects that would be new major stationary sources and 
projects that would be major modifications under the requirements for 
Prevention of Significant Deterioration (PSD) under 40 CFR 51.166 and 
the requirements for Nonattainment Area New Source Review (NNSR) under 
40 CFR 51.165.
    The requirements for Major NSR apply to the construction or 
modification of stationary sources which emit, or have the potential to 
emit a regulated NSR pollutant at greater than 100 tons per year for 
most stationary sources. See CAA Sec.  302(j).\2\ Major NSR is required 
under two programs as described below:
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    \2\ In certain nonattainment areas, the CAA specifies lower 
thresholds based upon the degree of nonattainment. See CAA at 
Sec. Sec.  182(c), (d), and (d); 187(c)(1); and 189(b)(3). See 40 
CFR 51.165(a)(1)(iv). Also, in a PSD area, under the CAA Sec.  
169(1), a major stationary source is either 100 tons per year or 
more if the source belongs to a category identified in the 
definition, otherwise it is major if it emits or has the potential 
to emit 250 tons per year or more. See 40 CFR 51.166(b)(1).
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    Prevention of Significant Deterioration (PSD). The requirements for 
PSD are under the CAA Title I, Part C and under 40 CFR 51.166. PSD 
applies to the construction and modification of major stationary 
sources for the emissions of any pollutant for which the region (or 
portion thereof) is designated attainment or unclassifiable. See CAA at 
Sec.  161 and 40 CFR 51.166(a)(7)(i). Requirements of the PSD 
Permitting Program include the following:
     The PSD permit must be issued prior to commencement of 
construction and set forth emission limitations which conform to the 
CAA. CAA Sec.  165(a)(1) and 40 CFR 51.166(a)(7).
     The proposed permit has been subject to review in 
accordance with CAA requirements and the regulations promulgated under 
CAA, and the permit has been subject to public hearing and opportunity 
for interested persons to submit comments. CAA Sec.  165(a)(2) and 40 
CFR 51.166(a)(7) & (q).
     The emissions from the construction or operation of the 
source will not cause, or contribute to, air pollution in excess of the 
following: (1) Maximum allowable increase or maximum allowable 
concentration for any pollutant in any area in which PSD applies; (2) 
National Ambient Air Quality Standard; and (3) Any other applicable 
emission standard or standard of performance under the Act. CAA Sec.  
165(a)(3) and 40 CFR 51.166(c).
     The source is subject to best available control technology 
and the permitted emissions represent that technology. CAA Sec.  
165(a)(4) and 51.166(j).
     The requirements for protection of Class I areas have been 
met by the source. CAA Sec.  165(a)(5) and 40 CFR 51.166(p).
     There has been an analysis of the air quality impacts 
projected to occur as the result of growth associated with the source. 
CAA Sec.  165(a)(6) and 40 CFR 51.166(o).
     Monitoring has been conducted, as necessary, to determine 
the effect which emissions from any such facility may have, or is 
having, on air quality in any area which may be affected by emissions 
from such source. CAA Sec.  165(a)(7) and 40 CFR 51.166(m).
     Specific requirements applicable to source proposed to be 
located in Class III areas have been met by the source. CAA Sec.  
165(a)(8).
    Nonattainment New Source Review (NNSR). The requirements for NNSR 
are under the CAA Title I, Part D and under 40 CFR 51.165. NNSR applies 
to the construction and modification of major stationary sources for 
the emissions of any pollutant for which the region (or portion 
thereof) is designated nonattainment. See CAA at Sec.  172(c)(5) and 40 
CFR 51.165(a)(2)(i). Requirements of the NNSR Program include the 
following:
     Emission increases must be offset by reductions that are 
greater than the increase. CAA Sec.  173(a)(1).
     The proposed source is required to comply with lowest 
achievable emission rate. CAA Sec.  173(a)(2).
     The owner or operator must demonstrate that all major 
stationary sources owned by such person (or entity) are in compliance, 
or on a schedule for compliance, with all applicable emission 
limitations and standards under the Act. CAA Sec.  173(a)(3).
     EPA has not determined that the State is not adequately 
implementing the SIP for the nonattainment area in which the proposed 
source is to be constructed or modified. CAA Sec.  173(a)(4).
     An analysis of alternative sites, sizes, production 
processes, and environmental control techniques for such proposed 
source demonstrates that benefits of the proposed source significantly 
outweigh the environmental and social costs imposed as a result of its 
location, construction, or modification. CAA Sec.  173(a)(5).
    The PSD and NNSR Programs each require a new major stationary 
source or major modification to obtain a preconstruction permit prior 
to commencing construction. For PSD see CAA at Sec.  165(a)(1) and 40 
CFR 51.166(a)(7)(iii). For NNSR see CAA Sec.  172(c)(5) and 40 CFR 
51.165(a)(2)(i)-(iii). Accordingly, a new or modified major stationary 
source or major modification may not be constructed without a permit 
that meets the requirements of the applicable Major NSR Program.
2. What is EPA's evaluation?
    As discussed in detail in the TSD for this action, in the July 17, 
2006 SIP submittal TCEQ characterizes its Emergency Orders Program as a 
program which ``contemplate(s) and call(s) for a comprehensive 
technical review.'' However, notwithstanding the fact that TCEQ states 
that the ``comprehensive review'' for an Emergency Order is at least as 
comprehensive as the TCEQ's review of permit applications, the 
Emergency Orders Program does not meet all the requirements applicable 
to NSR. Specifically, the issuance of Emergency Orders to projects that 
are subject to Major NSR fail to meet the requirements of the Clean Air 
Act and the implementing regulations as follows:
     The Emergency Orders Program does not satisfy the public 
participation required for NSR at the time the Emergency Order is 
issued. Public participation requirements that are applicable to 
projects that are subject to Major NSR are not met prior to the 
issuance of the Emergency Order, which would authorize the construction 
of such projects. Instead, the applicable public participation for 
Major NSR projects will take place after the issuance of the Emergency 
Order when the applicant submits their application for a Major NSR 
permit. The source has 60 days following the issuance of the Emergency 
Order to submit the permit application. See 30 TAC 35.806. Meanwhile, 
the applicant is authorized by the Emergency Order to begin 
construction of the Major NSR project prior to permit application 
submission and permit issuance. Consequently, the public is not 
afforded an opportunity to review and comment on the proposed project 
(as required under the CAA and implementing regulations) until after 
construction has begun; thus the public has not been provided 
meaningful opportunity to participate prior to commencement of 
construction of the Major NSR project. See 40 CFR 51.161

[[Page 8081]]

and 51.166(q). It is important to note, that while we are evaluating 
the Emergency Orders Program against the Major NSR requirements, the 
Minor NSR Program also requires public participation as part of the 
construction permitting process.\3\
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    \3\ The Minor NSR requirements for public participation are 
found at 40 CFR 51.161, and require prior to construction or 
modification the availability for public inspection of information 
regarding the construction (including the State's analysis of the 
effect on air quality), a 30-day period for submittal of public 
comment, and a notice by prominent advertisement in the area 
affected. EPA recognizes a state's ability to tailor the scope of 
its Minor NSR program as necessary to achieve and maintain the 
NAAQS. See 77 FR 74140.
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     The Emergency Orders Program does not meet the requirement 
that a NSR permit be issued prior to the commencement of construction 
of a Major Source. The CAA contemplates a Major NSR permit that is 
issued as a final authorization that certifies that the Major NSR 
permit meets all the requirements of PSD and NNSR. See CAA at section 
165(a) and 173(a) and 40 CFR 51.165(a)(2)(i) through (ii), and 
51.166(a)(7)(i) through (v). In contrast, the Emergency Order is an 
interim authorization for immediate action, including construction, 
following a catastrophe and is not a final issued Major NSR permit. 
Notwithstanding the fact that the TCEQ conducts a review of Emergency 
Order applications, which TCEQ characterized as being equivalent to the 
technical review of a permit, as discussed above, the technical review 
does not include all required preconstruction review elements and the 
issued order is an interim authorization and not a final issued Major 
NSR permit. The Emergency Orders Program does require that a source 
submit an application for any necessary air permits, including Major 
NSR permits, within 60 days following the issuance of an Emergency 
Order. See 30 TAC 35.806. These permits are required to be applied for 
and issued in accordance with the applicable New Source Review 
requirements. However, the New Source Review permitting would occur 
following the commencement of construction at the source. Therefore, 
the Emergency Orders Program does not meet the CAA requirement that the 
Major NSR permit be issued prior to a source commencing construction. 
For PSD see CAA at Sec.  165(a)(1) and 40 CFR 51.166(a)(7)(iii). For 
NNSR see CAA Sec.  172(c)(5) and 40 CFR 51.165(a)(2)(i)-(iii).
    Based on our review of the Emergency Orders Program, which includes 
authorizations of NSR actions, and comparison with the applicable 
requirements for Major NSR, we are proposing to disapprove the Program 
on the basis that it does not meet all applicable requirements. While 
we are proposing disapproval of the Emergency Orders Program, EPA would 
like to recognize the merits of having a state-only Program that allows 
for application review and order issuance to authorize proposed actions 
following catastrophes that often necessitate immediate action by 
owners and operators to minimize additional downstream impacts 
resulting from the catastrophe. Texas's Emergency Orders Program does 
allow for coordination between the source and the TCEQ to facilitate 
expedited review while maintaining a review process, as described in 
the June 17, 2006 SIP submittal.
    Other State and local agencies operate programs similar to the 
Emergency Orders Program to allow for the authorization of owners and 
operators to take immediate actions, including construction, following 
catastrophes that include natural disasters, such as hurricanes, 
floods, and earthquakes, and plant fires or explosions. In these cases, 
the regulations containing the provisions related to the program 
operated by the State or local agency are located within the states' 
air quality permitting regulations, not in the SIP, and EPA may 
exercise enforcement discretion on a case-by-case basis to evaluate the 
owner or operators' proposed actions in response to catastrophe. For 
example, in 2005, the EPA Region 6 office utilized enforcement 
discretion to allow facilities impacted by Hurricane Rita to take 
appropriate immediate actions to bring the sources back up to full 
operation and minimize additional impacts resulting from the 
catastrophe. In this case, EPA issued Administrative Compliance Orders 
after conducting case-by-case review of the proposed actions at a 
particular facility.4 5 More recently, EPA has exercised 
enforcement discretion in response to the impacts caused by Hurricane 
Sandy in both Regions 1 and 2. Following this natural disaster, EPA 
issued a No Action Assurance to allow loading and unloading of fuel at 
bulk gasoline and marine loading terminals and associated truck loading 
racks in New York and New Jersey without the required vapor recovery/
combustion if the facility was not equipped with this control equipment 
or the equipment had been damaged by Sandy.\6\ EPA exercised its 
enforcement discretion by issuing a No Action Assurance to address 
severe fuel shortages resulting from Hurricane Sandy's impacts. In each 
of the examples here, and in fact in any disaster situation, EPA has 
acted very quickly to gather facts and take appropriate action, so that 
critical systems are not impeded from operating as a result of the 
catastrophe.
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    \4\ Administrative Compliance Order dated September 28, 2005 
issued by the EPA Region 6 Compliance Assurance and Enforcement 
Division to Georgia Pacific for the Port Hudson facility.
    \5\ Administrative Compliance Order dated November 17, 2005 
issued by the EPA Region 6 Compliance Assurance and Enforcement 
Division to the Municipality of Chambers County.
    \6\ No Action Assurance dated November 2, 2012 issued by the EPA 
Assistant Administrator to the states of New York and New Jersey. 
Available at: http://www.epa.gov/enforcement/air/documents/policies/mobile/naa-vaporrecovery.pdf.
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    While we are proposing disapproval of the Emergency Orders Program 
on the basis that the Program does not meet the necessary federal 
requirements for approval into the Texas SIP, this proposed action will 
not impact how the TCEQ has been operating the Program in response to 
catastrophes since the Program's original adoption into the State's 
regulations in August 1993. EPA will continue to exercise enforcement 
discretion on a case-by-case basis for actions proposed by sources in 
Texas in response to catastrophes, while the TCEQ continues to rely 
upon the technical review process provided by the Emergency Orders 
Program to ensure that the proposed actions are consistent with the 
applicable State requirements and will not interfere with the 
attainment or maintenance of national ambient air quality standards or 
violate applicable portions of the control strategy.

III. Proposed Action

    Under section 110(k)(3) of the Act, and for the reasons stated 
above, EPA proposes to disapprove the following revisions to the Texas 
SIP.
     New 30 TAC 35.1--Purpose--submitted December 10, 1998.
     New 30 TAC 35.2--Applicability--submitted December 10, 
1998.
     New 30 TAC 35.3--Definitions--submitted December 10, 1998.
     New 30 TAC 35.11--Purpose and Applicability--submitted 
December 10, 1998.
     New 30 TAC 35.12--Authority of the Executive Director--
submitted December 10, 1998.
     New 30 TAC 35.21--Action by the Commission or Executive 
Director--submitted December 10, 1998.
     New 30 TAC 35.22--Term and Renewal of Orders--submitted 
December 10, 1998.
     New 30 TAC 35.23--Effect of Orders--submitted December 10, 
1998.
     New 30 TAC 35.24--Application for Emergency or Temporary 
Orders--

[[Page 8082]]

submitted December 10, 1998. No action is proposed on subsection (b) 
and paragraphs (e)(6)-(7) which are outside the scope of the SIP.
     New 30 TAC 35.25--Notice and Opportunity for Hearing--
submitted December 10, 1998. No action is proposed on paragraphs 
(e)(1)-(8) and (11)-(15) which are outside the scope of the SIP.
     New 30 TAC 35.26--Contents of Emergency or Temporary 
Order--submitted December 10, 1998.
     New 30 TAC 35.27--Hearing Required--submitted December 10, 
1998.
     New 30 TAC 35.28--Hearing Requests--submitted December 10, 
1998.
     New 30 TAC 35.29--Procedures for a Hearing--submitted 
December 10, 1998.
     New 30 TAC 35.30--Application Fees--submitted December 10, 
1998.
     New 30 TAC 35.801--Emergency Orders Because of a 
Catastrophe--submitted December 10, 1998; revision submitted July 17, 
2006.
     New 30 TAC 35.802--Applications for an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.411); revision submitted 
December 10, 1998 (as redesignated to 30 TAC 35.802); revision 
submitted July 17, 2006.
     New 30 TAC 35.803--Public Notification--submitted August 
31, 1993 (as 30 TAC 116.412); and revision submitted December 10, 1998 
(as redesignated to 30 TAC 35.803).
     New 30 TAC 35.804--Issuance of an Emergency Order--
submitted December 10, 1998; revision submitted July 17, 2006.
     New 30 TAC 35.805--Contents of an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.415); revision submitted 
December 10, 1998 (as redesignated to 30 TAC 35.805); revision 
submitted July 17, 2006.
     New 30 TAC 35.806--Requirement to Apply for a Permit or 
Modification--submitted August 31, 1993 (as 30 TAC 116.416); revision 
submitted December 10, 1998 (as redesignated to 30 TAC 35.806).
     New 30 TAC 35.807--Affirmation of an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.414); revision submitted 
December 10, 1998 (as redesignated to 30 TAC 35.807); revision 
submitted July 17, 2006.
     New 30 TAC 35.808--Modification of an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.417); revision submitted 
December 10, 1998 (as redesignated to 30 TAC 35.808); revision 
submitted July 17, 2006.
     New 30 TAC 35.809--Setting Aside an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.418); revision submitted 
December 10, 1998 (as redesignated to 30 TAC 35.809).
     New 30 TAC 116.1200--Applicability--submitted August 31, 
1993 (as 30 TAC 116.411); revisions submitted December 10, 1998; 
revision submitted February 1, 2006 (as redesignated to 30 TAC 
116.1200).

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this proposed SIP disapproval under section 110 and subchapter 
I, part D of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply disapproves certain State 
requirements for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) 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. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the Clean Air Act will not in-and-of itself create any new requirements 
but simply disapproves certain State requirements for inclusion into 
the SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the Clean Air Act prescribes that various consequences (e.g., higher 
offset requirements) may or will flow from this disapproval does not 
mean that EPA either can or must conduct a regulatory flexibility 
analysis for this action. Therefore, this action will not have a 
significant economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 ``for State, local, or tribal governments or the private 
sector.'' EPA has determined that the proposed disapproval action does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This action proposes to 
disapprove 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.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), 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.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national

[[Page 8083]]

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 disapproves certain State 
requirements for inclusion into the SIP and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. Thus, Executive Order 13132 does not 
apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (59 FR 22951, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not apply in Indian country 
located in the State, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997).This proposed SIP disapproval under section 110 and subchapter I, 
part D of the Clean Air Act will not in-and-of itself create any new 
regulations but simply disapproves certain State requirements for 
inclusion into the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove state choices, based on the criteria 
of the Clean Air Act. Accordingly, this action merely proposes to 
disapprove certain State requirements for inclusion into the SIP under 
section 110 and subchapter I, part D of the Clean Air Act and will not 
in-and-of itself create any new requirements. Accordingly, it does not 
provide EPA with the discretionary authority to address, as 
appropriate, disproportionate human health or environmental effects, 
using practicable and legally permissible methods, under Executive 
Order 12898.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Carbon monoxide, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic 
compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: January 28, 2013.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2013-02499 Filed 2-4-13; 8:45 am]
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