[Federal Register Volume 78, Number 187 (Thursday, September 26, 2013)]
[Rules and Regulations]
[Pages 59250-59258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23380]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0600; FRL-990-30-Region 6]


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: Final rule.

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SUMMARY: EPA is taking final action to disapprove revisions to the 
State Implementation Plan (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 
disapproving these revisions because these regulations do not meet the 
requirements of the Clean Air Act (the ``Act'' or ``CAA''), EPA 
regulations, and applicable policy and guidance. EPA is taking this 
action under section 110 and parts C and D of Title I of the Act.

DATES: This final rule is effective on October 28, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2006-0600. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through 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. To inspect the hard 
copy materials, please schedule an appointment with the person listed 
in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill 
Deese at 214-665-7253.

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, ``we,'' ``us,'' 
and ``our'' means EPA.

Table of Contents

I. What action is EPA taking?
II. What is the background?
    A. Summary of Our Proposed Action
    B. Summary of the Submittals Addressed in this Final Action
III. Responses to Comments
IV. What are the grounds for this disapproval action of the Texas 
Emergency Orders Program?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is taking final action to disapprove the Texas Emergency Orders 
Program as submitted by Texas on August 31, 1993, as revised by the 
December 10, 1998, February 1, 2006, and July 17, 2006 SIP revision 
submittals. These submittals include the initial adoption of 30 TAC 
116.410

[[Page 59251]]

through 116.418, the initial adoption of 30 TAC Chapter 35, and 
subsequent revisions to sections within these regulations. EPA has 
concluded that the Emergency Orders Program contained in these 
regulations does not meet the requirements of the Act and the EPA's New 
Source Review (NSR) regulations.
    EPA proposed disapproval of the above SIP revision submittals on 
February 5, 2013 (78 FR 8076). We accepted comments from the public on 
this proposal from February 5, 2013 until March 7, 2013. A summary of 
the comments received and our evaluation and response thereof is 
discussed in section III below. In the proposal and in the Technical 
Support Document (TSD), we described our basis for the actions 
identified above. The reader should refer to the proposal, the TSD, 
section IV of this notice, and the Response to Comments in section III 
of this notice for additional information relating to our final action.
    EPA is disapproving the submitted Texas Emergency Orders Program as 
not meeting all the requirements applicable to New Source Review (NSR). 
Specifically, the issuance of Emergency Orders to projects that are 
subject to Major NSR fail to meet the requirements of the CAA 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; and
     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 provisions in these submittals relating to the Texas Emergency 
Orders Program that include the 30 TAC Chapter 116.410 through 116.418 
and Chapter 35 regulatory provisions were not submitted to meet a 
mandatory requirement of the Act. Therefore, this final action to 
disapprove the submitted Texas Emergency Orders Program does not 
trigger a sanctions or Federal Implementation Plan clock. See CAA 
section l79(a).

II. What is the background?

A. Summary of Our Proposed Action

    On February 5, 2013, EPA proposed to disapprove revisions to the 
SIP submitted by the State of Texas that relate to the Emergency Orders 
Program. Texas submitted these SIP revisions on August 31, 1993; 
December 10, 1998; February 1, 2006; and July 17, 2006. Table 1 
summarizes these SIP revision submittals and their associated affected 
provisions that we proposed to disapprove in our February 5, 2013 
action.
    Our February 5, 2013 proposal provides a detailed description of 
the submittals and the rationale for EPA's proposed action, together 
with a discussion of the opportunity to comment. The public comment 
period for this action closed on March 7, 2013.

B. Summary of the Submittals Addressed in This Final Action

    Tables 1 and 2 below summarize the changes that are in the SIP 
revision submittals. A summary of EPA's evaluation of each section and 
the basis for this final action is discussed in sections III through V 
of this notice. The TSD (which is located in the docket) includes a 
detailed evaluation of the submittals.

                                           Table 1--Summary of Pending SIP Submittals Addressed in this Action
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                                                            Date
                                  Date         Date      effective
Description of SIP submittal   submitted    adopted by    as State                           Sections related to emergency orders
                                 to EPA       State         rule
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Original Recodification of      8/31/1993    8/16/1993    9/13/1993  Chapter 116: Submittal of sections 116.410 through 116.418.
 Chapter 116.
Emergency and Temporary        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-
 Orders.                                                              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        2/1/2006    1/11/2006     2/1/2006  Chapter 116: Recodification of Sec.   116.410 to Sec.   116.1200.
 Permits Rules.
Revision to Provisions for      7/17/2006    6/28/2006    7/19/2006  Chapter 35: Revisions to sections 35.801, 35.802, 35.804, 35.805, 35,807, and
 Emergency Orders.                                                    35.808.
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                                         Table 2--Summary of the Individual Revisions to Each Section Evaluated
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                                                   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
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                                                  Subchapter A--Purpose, Applicability, and Definitions
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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.
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                                                    Subchapter B--Authority of the Executive Director
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Section 35.11--Purpose and Applicability.....   12/10/1998   11/18/1998   12/10/1998  Initial adoption.
Section 35.12--Authority of the Executive       12/10/1998   11/18/1998   12/10/1998  Initial adoption.
 Director.
Section 35.13--Eligibility of the Executive     12/10/1998   11/18/1998   12/10/1998  Initial adoption.
 Director.
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                                                            Subchapter C--General Provisions
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Section 35.21--Action by the Commission or      12/10/1998   11/18/1998   12/10/1998  Initial adoption.
 Executive Director.

[[Page 59252]]

 
Section 35.22--Term and Renewal of Orders....   12/10/1998   11/18/1998   12/10/1998  Initial adoption.
Sec.   35.23--Effect of Orders...............   12/10/1998   11/18/1998   12/10/1998  Initial adoption.
Section 35.24--Application for Emergency or     12/10/1998   11/18/1998   12/10/1998  Initial adoption.
 Temporary Orders.
Section 35.25--Notice and Opportunity for       12/10/1998   11/18/1998   12/10/1998  Initial adoption.
 Hearing.
Section 35.26--Contents of Emergency or         12/10/1998   11/18/1998   12/10/1998  Initial adoption.
 Temporary Orders.
Section 35.27--Hearing Required..............   12/10/1998   11/18/1998   12/10/1998  Initial adoption.
Section 35.28--Hearing Requests..............   12/10/1998   11/18/1998   12/10/1998  Initial adoption.
Sec.   35.29--Procedures for a Hearing.......   12/10/1998   11/18/1998   12/10/1998  Initial adoption.
Section 35.30--Application Fees..............   12/10/1998   11/18/1998   12/10/1998  Initial adoption.
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                                                              Subchapter K--Air Orders \1\
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Section 35.801--Emergency Orders Because of     12/10/1998   11/18/1998   12/10/1998  Initial adoption.
 Catastrophe.                                    7/17/2006    6/28/2006    7/19/2006  Revisions to section 35.801.
Sec.  Sec.   35.802--Application for an          8/31/1993    8/16/1993    9/13/1993  Initial adoption as section 116.411.
 Emergency Order.
                                                12/10/1998   11/18/1998   12/10/1998   Redesignated to section 35.802;
                                                                                       Revisions to introductory paragraph;
                                                                                       Revisions to paragraphs (1)-(8);
                                                                                       New paragraph (9); and
                                                                                       Redesignate former paragraph (9) to paragraph (10) with
                                                                                       revisions.
                                                 7/17/2006    6/28/2006    7/19/2006  Revisions to introductory paragraph (1) and paragraph (5).
Section 35.803--Public Notification..........    8/31/1993    8/16/1993    9/13/1993  Initial adoption as section 116.412.
                                                12/10/1998   11/18/1998   12/10/1998   Redesignated to section 35.803; and
                                                                                       Revisions to introductory paragraph.
Section 35.804--Issuance of an Emergency        12/10/1998   11/18/1998   12/10/1998  Initial adoption.
 Order.
                                                 7/17/2006    6/28/2006    7/19/2006  Revision to paragraphs (1) and (1)(C).
Section 35.805--Contents of an Emergency         8/31/1993    8/16/1993    9/13/1993  Initial adoption as section 116.415.
 Order.
                                                12/10/1998   11/18/1998   12/10/1998  Redesignated to section 35.805; and
                                                                                      Revision to introductory paragraph and paragraphs (1)-(4).
                                                 7/17/2006    6/28/2006    7/19/2006   Reorganization of paragraph (3) to paragraphs (3),
                                                                                       (3)(A), and (3)(B);
                                                                                       New paragraph 3)(C);
                                                                                       New paragraph (4); and
                                                                                       Redesignation of existing paragraph (4) to paragraph (5)
                                                                                       with revisions.
Section 35.806--Requirement to Apply for a       8/31/1993    8/16/1993    9/13/1993  Initial adoption as Sec.   116.416.
 Permit or Modification.                        12/10/1998   11/18/1998   12/10/1998   Redesignated to section 35.806; and
                                                                                       Revisions to introductory paragraph.
Section 35.807--Affirmation of an Emergency      8/31/1993    8/16/1993    9/13/1993  Initial adoption as section 116.414.
 Order.
                                                12/10/1998   11/18/1998   12/10/1998   Redesignated to section 35.807; and
                                                                                       Revisions to the introductory paragraph, paragraphs (1)-
                                                                                       (3);
                                                                                       New paragraph (4);
                                                                                       Redesignation of former (4)-(5) to paragraphs (5)-(6)
                                                                                       with revisions.
                                                 7/17/2006    6/28/2006    7/19/2006   Revisions to paragraph (1).
                                                                                       Reorganization of paragraph (5) into paragraphs (5),
                                                                                       (5)(A), and (5)(B); and
                                                                                       New paragraph (5)(C).
Section 35.808--Modification of an Emergency     8/31/1993    8/16/1993    9/13/1993  Initial adoption as section 116.417.
 Order.
                                                12/10/1998   11/18/1998   12/10/1998   Redesignated to section 35.808; and
                                                                                       Revisions to paragraphs (1)-(3).
                                                 7/17/2006    6/28/2006    7/19/2006  Revision to paragraph (1).
Section 35.809--Setting Aside an Emergency       8/31/1993    8/16/1993    9/13/1993  Adopted as Sec.   116.418.
 Order.
                                                12/10/1998   11/18/1998   12/10/1998   Redesignated to section 35.809; and
                                                                                       Revision to introductory paragraph.
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                              30 TAC Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
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                                                             Subchapter K--Emergency Orders
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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.
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[[Page 59253]]

    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 disapproving only those portions that are 
applicable to the issuance of air Emergency Orders. As noted in our 
proposed action on February 5, 2013, EPA returned the non-air portions 
of the aforementioned submittals to the State. Under the CAA, SIPs can 
only include provisions addressing air quality, so the portions of the 
Texas submittals related to non-air orders cannot be included in the 
SIP.\2\
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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.
    \2\ As part of this final rulemaking, we would like to provide 
clarification that a SIP is not limited only to provisions that 
address criteria pollutants and their precursors. Our intent in 
mentioning the scope of the SIP in our proposal (78 FR 8076, 
February 5, 2013) was only to differentiate between the air and non-
air related provisions contained in the August 31, 1993, December 
10, 1998, February 1, 2006, and July 17, 2006 SIP revision 
submittals. With this rulemaking, we are providing clarification 
that the SIP is limited to provisions that address air quality; 
therefore, the non-air portions of the SIP submittals received from 
Texas were returned to the state.
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    Today, EPA is disapproving the regulations identified in Table 2 
above, except for provisions that do not relate to the air quality 
requirements of the Act. EPA returned 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). 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 utilize enforcement 
discretion to allow for appropriate immediate actions to minimize 
impacts and restore the sources to full operation.

III. Responses to Comments

    The Federal Register proposing disapproval of these SIP revisions 
was published on February 5, 2013 at 78 FR 8076, and the public comment 
period closed on March 7, 2013. In response to our proposal, we 
received comments from the following: Baker Botts, L.L.P. on behalf of 
Business Coalition for Clean Air Appeal Group (BCCA); Baker Botts, 
L.L.P. on behalf of Texas Industry Project (TIP); and the Texas 
Commission on Environmental Quality (TCEQ). EPA has summarized the 
comments below; the complete comment letters received are available for 
review in the docket for this rulemaking.
    Comment 1: TCEQ comments that the Emergency Orders rules are not 
intended to substitute for the SIP-approved NSR permitting processes, 
and the rules require that the regulated entities that are issued an 
Emergency Order are required to undergo the NSR permitting processing 
on a specific timeframe to obtain necessary NSR authorizations.
    Response: EPA agrees that the Emergency Orders rules are not 
submitted as a substitute for the current SIP-approved NSR permitting 
process. However, the issuance of an Emergency Order under the 
submitted program precedes the NSR permitting process and authorizes 
construction prior to the SIP-approved NSR permitting process 
occurring. The CAA does not provide an option to authorize construction 
prior to the completion of the NSR permitting process. While the 
submitted rules require that a source obtain the necessary NSR 
authorization(s) within a specified timeframe, the initial 
authorization via the Emergency Order allows a source to commence 
construction prior to the source undergoing the required NSR permitting 
process. Because the issued Emergency Order is the initial 
preconstruction authorization, the program must be evaluated to 
determine if it meets the applicable requirements for NSR.
    Comment 2: TCEQ comments that the review of Emergency Orders 
applications and the orders themselves ensure or require compliance 
with the requirement that any construction or modification will not 
interfere with the attainment or maintenance of the NAAQS or violate 
applicable portions of the control strategy. TCEQ further comments that 
case-by-case enforcement discretion does not have the same protective 
outcome for the environment as the Emergency Orders Program and does 
not satisfy the public participation required for either major or minor 
NSR in the Clean Air Act.
    Response: EPA is not disputing the merits of the technical review 
process that TCEQ facilitates as part of the Emergency Orders Program. 
However, Texas submitted the Emergency Orders Program as a revision to 
the State's SIP. Therefore, as part of this action we are evaluating 
the Emergency Orders Program to determine if it is consistent with the 
applicable CAA requirements, EPA regulations, and applicable policy and 
guidance.
    EPA does not agree that the case-by-case enforcement discretion 
approach described in our proposed action does not have the same 
protective outcome for the environment as the Texas Emergency Orders 
Program. On page 78 FR 8081 of our proposed action, we described a 
real-world approach of applying the state-only Emergency Orders 
Program, including the review process outlined in the program rules, 
with case-by-case EPA enforcement discretion. This described approach 
would maintain the elements of the Texas Emergency Orders Program 
technical review and couple it with the EPA's case-by-case evaluation 
of the owner or operator's proposed action in response to a 
catastrophe. Therefore, the approach discussed by EPA in our proposal 
would not be any less protective than a stand-alone Emergency Orders 
Program and can still allow for facilities to take appropriate 
immediate actions to bring a source back up to full operation and 
minimize additional impacts resulting from the catastrophe.
    In response to TCEQ's statement regarding public participation 
requirements and enforcement discretion, the public participation 
requirements cited by EPA in our proposed action as the basis of our 
disapproval are applicable to SIP revisions that are submitted to EPA 
for review and approval into the SIP, and would not apply to our 
proposed utilization of EPA's enforcement discretion. As stated 
previously, on a case-by-case basis EPA would evaluate proposed actions 
in response to a catastrophe and would utilize its enforcement 
discretion to allow for appropriate immediate actions to minimize 
impacts and restore the sources to full operation.
    Comment 3: TCEQ comments that the case-by-case approach described 
by EPA in the proposed action does not provide legal certainty of 
approved rules and forces companies to evaluate the costs of the risks 
of violating the CAA provisions at times when quick action is 
necessary. TCEQ states that the Emergency Orders rules allow regulated 
entities to obtain needed authorizations for immediate actions in 
response to natural disasters and other defined catastrophes while 
mitigating the economic risks regulated entities have to calculate and 
consider from fines and penalties associated with unauthorized

[[Page 59254]]

air emissions that could hinder necessary immediate actions.
    Response: The practice described in our proposal notice is simply a 
description of state-EPA interaction utilized by sources located in 
other states. Companies in those states are not required to utilize 
this practice, and can use available SIP-approved permitting mechanisms 
to address their needs. Similarly, companies in Texas can address their 
needs using permitting mechanisms available in the Texas SIP.
    Texas submitted the Emergency Orders Program as a revision to the 
State's SIP. Therefore, EPA is evaluating the SIP revision submittal to 
determine if the program meets the requirements of the CAA, EPA 
regulations, and applicable policy and guidance. In the case where a 
submitted SIP revision, like the Texas Emergency Orders Program, does 
not meet the applicable CAA requirements or is inconsistent with EPA 
regulations, policy, or guidance, we cannot approve that revision into 
a SIP.
    Comment 4: TCEQ indicates that they had previously provided various 
documents to EPA during informal discussions to illustrate how the 
Emergency Orders rules are compliant with the CAA, and that they can 
provide this information again, if necessary.
    Response: EPA did receive from Texas three orders signed by the 
TCEQ Commissioners affirming Emergency Orders previously issued by the 
Executive Director of the TCEQ. These documents were not persuasive in 
demonstrating that the Emergency Orders Program met the requirements of 
the CAA, as described in Section IV of this notice.\3\
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    \3\ Rather, the orders showed that companies were allowed to 
construct and operate without prior public notice, and prior to the 
issuance of a SIP-approved permit. For example, one order (94-0722-
AIR) allowed a facility to construct, operate, shut down, and 
dismantle two temporary boilers at a polypropylene unit at a 
chemical plant. The public was provided notice of the Emergency 
Order four days after the boilers were dismantled. The three orders 
submitted by Texas are available for review in the docket of this 
rulemaking.
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    Comment 5: TCEQ notes that EPA has approved similar rules for other 
states to address emergency conditions, including the rules for New 
Mexico.
    Response: EPA is currently evaluating the rules currently approved 
into the New Mexico SIP to determine what action, if any, is needed to 
ensure that the State's SIP is consistent with the applicable CAA 
requirements, EPA regulations, and applicable policy and guidance. If 
it is determined that some action is needed regarding the New Mexico 
SIP, EPA will address that in a separate action and rulemaking. This 
final action addresses only those aforementioned SIP revision 
submittals submitted by Texas related to the State's Emergency Orders 
Program.
    Comment 6: BCCA and TIP comment that the Emergency Orders Program 
satisfies all statutory requirements for SIP approval, including 
compliance with the NAAQS, and will often result in a facility that is 
issued an Emergency Order being subject to more stringent requirements 
than those that might otherwise be required.
    Response: We do not agree that the Emergency Orders Program 
satisfies statutory requirements for SIP approval. As detailed in our 
proposed action, the proposed SIP revisions related to Emergency Orders 
do not meet all of the requirements applicable to NSR. Specifically, 
the issuance of Emergency Orders to projects that are subject to Major 
NSR fails to satisfy the public participation required for NSR at the 
time the order is issued and does not meet the requirement that a NSR 
permit be issued prior to the commencement of construction of a Major 
Source. The basis of our disapproval, as outlined in our proposed 
action, is that the Emergency Orders Program fails to meet these NSR 
requirements.
    Comment 7: BCCA and TIP comment that many, if not most, projects 
eligible for an Emergency Order may not reflect a new major stationary 
source or a major modification, and that they are unaware of a 
situation in which an Emergency Order has been used to circumvent major 
NSR requirements. The commenters also state that Emergency Orders 
Program has been an appropriate complement to the minor NSR permitting 
requirements where prompt actions are necessary in response to a 
catastrophe. BCCA and TIP further comment that if EPA disapproves the 
Emergency Orders Program on the basis of Major NSR concerns, that EPA 
would be making the minor NSR program subject to the same requirements 
for SIP approval as Major NSR programs. The commenters state that if 
EPA were to identify a proper basis to disapprove the program, EPA 
should do so to the most limited extent possible. BCCA and TIP 
reference a recent court decision that indicated that in cases where 
EPA had concerns that a state program would enable circumvention of 
Major NSR requirements, ``EPA might have made use of its conditional 
approval authority'' rather than disapproving the entire program.
    Response: Under the submitted provisions found in 30 TAC Chapter 
35, the TCEQ may issue an order under its Emergency Orders Program that 
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. The Emergency Orders Program SIP 
revisions submitted by Texas for review by EPA do not limit the program 
solely to Minor NSR actions. The submitted SIP revisions and the 
proposed regulations contained in the submittals do not provide any 
indication that the program is limited only to Minor NSR.\4\ Therefore, 
EPA's evaluation of the SIP revisions includes a comparison with Major 
NSR requirements. As noted in our proposed action, the Emergency Orders 
Program does not meet all applicable requirements for Major NSR.
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    \4\ In the December 10, 1998 SIP revision submittal, the record 
indicates that while it is not anticipated for most situations it is 
possible that construction at a facility in response to a 
catastrophe could trigger Major NSR. The record also indicates that 
the issuance of an Emergency Order to authorize Major NSR actions in 
response to a catastrophe under the proposed program is possible.
---------------------------------------------------------------------------

    We do not agree that the disapproval of the Emergency Orders 
Program on the basis of our Major NSR concerns would be making the 
State's Minor NSR program subject to the same standards for SIP 
approval for Major NSR. The Emergency Orders Program as submitted by 
Texas applies to both Major and Minor NSR and, consequently, must be 
evaluated against all applicable federal requirements, including those 
for both Major and Minor NSR. Further, as we noted in our proposed 
action, the Minor NSR program requires public participation as part of 
the construction permitting process, see 40 CFR 51.161, which the 
Emergency Orders Program does not.\5\
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    \5\ 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.
---------------------------------------------------------------------------

    Regarding conditional approvals, the CAA does provide that EPA may 
conditionally approve a SIP submittal ``based on a commitment of the 
state to adopt specific enforceable measures by a date certain, but not 
later than 1 year after the date of approval of the plan revision.'' 
See CAA 110(k)(4). However, in order to conditionally approve the SIP 
revisions related to the Emergency Orders Program, we would need a 
commitment from Texas to make

[[Page 59255]]

revisions to the submitted rules, as necessary, to address our concerns 
(including the concerns outlined in our proposed disapproval notice) 
and meet all applicable requirements. To date, EPA has not received any 
such commitment from Texas that would allow for EPA to use its 
conditional approval authority.
    Comment 8: BCCA and TIP comment that they believe that the 
Emergency Orders Program is more stringent than the enforcement 
discretion approach recommended by EPA. The commenters state that an 
enforcement discretion approach provides no standards for an agency to 
allow construction or modification in response to a catastrophe; 
whereas, the Emergency Orders Program has specific requirements that 
must be met by an issued Emergency Order.
    Response: The EPA's enforcement discretion approach and the TCEQ's 
Emergency Orders Program both provide a process for the agencies to 
follow when evaluating actions proposed by emission sources in response 
to catastrophes, including natural disasters. Both approaches achieve 
the overall goal of coordinating a review process in order to allow the 
source to take appropriate actions in response to a catastrophe. The 
use of the different processes is not an issue of stringency. It is an 
issue of the most effective means available to the agencies to quickly 
achieve the overall goal.

IV. What are the grounds for this disapproval action of the Texas 
Emergency Orders Program?

    EPA is disapproving the revisions to the SIP submitted by the State 
of Texas that relate to the Emergency Orders Program, identified in 
Tables 1 and 2. EPA proposed disapproval of the Emergency Orders 
Program and solicited public comments. EPA has reviewed and responded 
to the comments (including adverse comments), and EPA is taking this 
final action to disapprove the Emergency Orders Program based on the 
reasons discussed below.
    Based on our evaluation, EPA has found that the proposed Emergency 
Orders Program does not meet all applicable requirements of the CAA, 
EPA regulations, and applicable policy and guidance. 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 described below:

A. The Emergency Orders Program Does Not Satisfy the Public 
Participation Required for NSR at the Time the Emergency Order Is 
Issued

    As stated in our proposed action, the Emergency Orders Program 
fails to satisfy the public participation requirements for Major NSR at 
the time the Emergency Order is issued. 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. 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 and 51.166(q).

B. 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

    While EPA agrees with commenters that the Emergency Orders Program 
will not replace the current SIP approved NSR permitting processes, 
including Major NSR, the program does provide an interim authorization 
for immediate action, including construction, following a catastrophe 
via the issuance of an Emergency Order. The issued order is not a final 
issued Major NSR permit. If the proposed action authorized under an 
Emergency Order is subject to Major NSR, the Emergency Orders Program 
requires that the source apply for a Major NSR permit within 60 days 
following the issuance of the order. These permits are required to be 
applied for and issued in accordance with the applicable NSR 
requirements. However, the NSR permitting would occur following the 
commencement of construction at the source, which is not consistent 
with the CAA requirements. 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).
    In summary, for the reasons stated above, the submitted Emergency 
Orders Program is not approvable in the Texas SIP because it does not 
meet all of the applicable requirements of the CAA, EPA regulations, 
and applicable policy and guidance. Some commenters state that EPA 
could limit its disapproval of the Emergency Orders Program by 
exercising its conditional approval authority. As discussed in our 
response to comments, a conditional approval requires a commitment from 
the State to make revisions to the submitted rules, as necessary, to 
address our concerns and meet all applicable requirements. See CAA 
110(k)(4). To date, EPA has not received any commitment from Texas that 
would allow for EPA to use its conditional approval authority.
    Therefore, for the reasons discussed above, we are taking final 
action to disapprove the SIP revision submittals relating to the Texas 
Emergency Orders Program as submitted by Texas on the August 31, 1993, 
December 10, 1998, February 1, 2006, and July 17, 2006.

V. Final Action

    EPA is disapproving the Texas Emergency Orders Program submitted in 
a series of SIP revisions, indentified in the Tables in section II of 
this preamble. These affected provisions are addressed in the August 
31, 1993, as revised by the December 10, 1998, February 1, 2006, and 
July 17, 2006 SIP revision submittals submitted by Texas.
    EPA is disapproving the aforementioned SIP revisions submittals 
because these regulations do not meet the requirements of the CAA, EPA 
regulations, and applicable policy and guidance. EPA is taking this 
action under section 110 and parts C and D of Title I of the Act. We 
are not taking on action the non-air portions of the referenced SIP 
revision submittals, which are beyond the scope of the SIP and were 
returned to the State.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This final 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 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).

[[Page 59256]]

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 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 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 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 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 disapproves 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 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 disapproving 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 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 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

[[Page 59257]]

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 disapproves 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.

K. Congressional Review Act

    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 action 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).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 25, 2013. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 4, 2013.
Ron Curry,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart SS--Texas

0
2. Section 52.2273 is amended by adding paragraph (h) to read as 
follows:


Sec.  52.2273  Approval status.

* * * * *
    (h) EPA is disapproving the Texas SIP revisions submittals under 30 
TAC Chapter 35--Emergency and Temporary Orders and Permits; Temporary 
Suspension or Amendment of Permit Conditions and 30 TAC Chapter 116--
Control of Air Pollution by Permits for New Construction or 
Modification as follows:
    (1) The following provisions under 30 TAC Chapter 35, Subchapter 
A--Purpose, Applicability and Definitions:
    (i) 30 TAC 35.1--Purpose--adopted November 18, 1998 and submitted 
December 10, 1998.
    (ii) 30 TAC 35.2--Applicability--adopted November 18, 1998 and 
submitted December 10, 1998.
    (iii) 30 TAC 35.3--Definitions--adopted November 18, 1998 and 
submitted December 10, 1998.
    (2) The following provisions under 30 TAC Chapter 35, Subchapter 
B--Authority of the Executive Director:
    (i) 30 TAC 35.11--Purpose and Applicability--adopted November 18, 
1998 and submitted December 10, 1998.
    (ii) 30 TAC 35.12--Authority of the Executive Director--adopted 
November 18, 1998 and submitted December 10, 1998.
    (iii) 35.13--Eligibility of the Executive Director--adopted 
November 18, 1998 and submitted December 10, 1998.
    (3) The following provisions under 30 TAC Chapter 35, Subchapter 
C--General Provisions:
    (i) 30 TAC 35.21--Action by the Commission or Executive Director--
adopted November 18, 1998 and submitted December 10, 1998.
    (ii) 30 TAC 35.22--Term and Renewal of Orders--adopted November 18, 
1998 and submitted December 10, 1998.
    (iii) 30 TAC 35.23--Effect of Orders--adopted November 18, 1998 and 
submitted December 10, 1998.
    (iv) 30 TAC 35.24--Application for Emergency or Temporary Orders--
adopted November 18, 1998 and submitted December 10, 1998. No action is 
taken on subsection (b) and paragraphs (e)(6)-(7) which are outside the 
scope of the SIP.
    (v) 30 TAC 35.25--Notice and Opportunity for Hearing--adopted 
November 18, 1998 and submitted December 10, 1998. No action is taken 
on paragraphs (e)(1)-(8) and (11)-(15) which are outside the scope of 
the SIP.
    (vi) 30 TAC 35.26--Contents of Emergency or Temporary Order--
adopted November 18, 1998 and submitted December 10, 1998.
    (vii) 30 TAC 35.27--Hearing Required--adopted November 18, 1998 and 
submitted December 10, 1998.
    (viii) 30 TAC 35.28--Hearing Requests--adopted November 18, 1998 
and submitted December 10, 1998.
    (ix) 30 TAC 35.29--Procedures for a Hearing--adopted November 18, 
1998 and submitted December 10, 1998.
    (x) 30 TAC 35.30--Application Fees--adopted November 18, 1998 and 
submitted December 10, 1998.
    (4) The following provisions under 30 TAC Chapter 35, Subchapter 
K--Air Orders:
    (i) 30 TAC 35.801--Emergency Orders Because of a Catastrophe--
adopted November 18, 1998 and submitted December 10, 1998; revised June 
28, 2006 and submitted July 17, 2006.
    (ii) 30 TAC 35.802--Applications for an Emergency Order--adopted 
August 16, 1993 and submitted August 31, 1993 (as 30 TAC 116.411); 
revised November 18, 1998 and submitted December 10, 1998 (as 
redesignated to 30 TAC 35.802); revised June 28, 2006 and submitted 
July 17, 2006.
    (iii) 30 TAC 35.803--Public Notification--adopted August 16, 1993 
and submitted August 31, 1993 (as 30 TAC 116.412); revised November 18, 
1998 and submitted December 10, 1998 (as redesignated to 30 TAC 
35.803).
    (iv) 30 TAC 35.804--Issuance of an Emergency Order--adopted 
November 18, 1998 and submitted December 10, 1998; revised June 28, 
2006 and submitted July 17, 2006.
    (v) 30 TAC 35.805--Contents of an Emergency Order--adopted August 
16, 1993 and submitted August 31, 1993 (as 30 TAC 116.415); revised 
November 18, 1998 and submitted December 10, 1998 (as redesignated to 
30 TAC 35.805); revised June 28, 2006 and submitted July 17, 2006.
    (vi) 30 TAC 35.806--Requirement to Apply for a Permit or 
Modification--adopted August 16, 1993 and submitted August 31, 1993 (as 
30 TAC 116.416); revised November 18, 1998 and submitted December 10, 
1998 (as redesignated to 30 TAC 35.806).

[[Page 59258]]

    (vii) 30 TAC 35.807--Affirmation of an Emergency Order--adopted 
August 16, 1993 and submitted August 31, 1993 (as 30 TAC 116.414); 
revised November 18, 1998 and submitted December 10, 1998 (as 
redesignated to 30 TAC 35.807); revised June 28, 2006 and submitted 
July 17, 2006.
    (viii) 30 TAC 35.808--Modification of an Emergency Order--adopted 
August 16, 1993 and submitted August 31, 1993 (as 30 TAC 116.417); 
revised November 18, 1998 and submitted December 10, 1998 (as 
redesignated to 30 TAC 35.808); revised June 28, 2006 and submitted 
July 17, 2006.
    (ix) 30 TAC 35.809--Setting Aside an Emergency Order--adopted 
August 16, 1993 and submitted August 31, 1993 (as 30 TAC 116.418); 
revised November 18, 1998 and submitted December 10, 1998 (as 
redesignated to 30 TAC 35.809).
    (5) The following provision under 30 TAC Chapter 116, Subchapter 
K--Emergency Orders: 30 TAC 116.1200--Applicability--adopted August 16, 
1993 and submitted August 31, 1993 (as 30 TAC 116.410); revised 
November 18, 1998 and submitted December 10, 1998; revised January 11, 
2006 and submitted February 1, 2006 (as redesignated to 30 TAC 
116.1200).

[FR Doc. 2013-23380 Filed 9-25-13; 8:45 am]
BILLING CODE 6560-50-P