2560 Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules

grounds. Union Electric Co., v. U.S.

EPA, 427 U.S. 246, 255–66 (1976); 42

U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated annual costs to

State, local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated annual costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Oxides of nitrogen, Ozone,

Particulate matter, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Authority: 42 U.S.C. 7401–7671q.

Dated: January 7, 2000.

Felicia Marcus,

Regional Administrator, Region IX.

[FR Doc. 00–1090 Filed 1–14–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[TX–100–7390; FRL–6524–4]

Approval and Promulgation of

Implementation Plans; Texas;

Permitting of New and Modified

Sources in Nonattainment Areas

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA proposes to approve

revisions to the Texas State

Implementation Plan (SIP). The

revisions concern the permitting of new

major sources and major modifications

in areas which do not meet the national

ambient air quality standards (NAAQS)

promulgated by EPA (nonattainment

areas). The EPA proposes to approve

these revisions to satisfy the provisions

of the Clean Air Act (Act) which relate

to the permitting of new and modified

sources which are located in

nonattainment areas.

DATES: Comments must be received on

or before February 17, 2000.

ADDRESSES: Written comments should

be addressed to Ms. Jole C. Luehrs,

Chief, Air Permits Section, at the EPA

Region 6 Office listed below. Copies of

documents relevant to this action are

available for public inspection during

normal business hours at the following

locations. Anyone wanting to examine

these documents should make an

appointment with the appropriate office

at least two working days in advance.

Environmental Protection Agency,

Region 6, Air Planning Section (6PD–L),

1445 Ross Avenue, Dallas, Texas 75202–

2733.

Texas Natural Resource Conservation

Commission, Office of Air Quality,

12124 Park 35 Circle, Austin, Texas

78753.

FOR FURTHER INFORMATION CONTACT:

Stanley M. Spruiell of EPA Region 6 Air

Permits Section at (214) 665–7212 at the

address above, or at

spruiell.stanley@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever

we, us, or our are used, we mean EPA.

Table of Contents

I. General Overview of Texas Nonattainment

Permitting Regulations

A. What are we proposing to approve in

this action?

B. Who is affected by this action?

C. What are the major source thresholds for

nonattainment pollutants?

D. What is a major modification?

E. What are the requirements for permitting

new and modified sources in

nonattainment areas?

II. Review of Texas’ Regulations for

Permitting Major Sources and Major

Modifications in Ozone Nonattainment

Areas

A. What does the current Texas SIP

require?

B. What SIP revisions did Texas submit?

C. Summary of Texas 182(f) NOX Waivers

1. What does section 182(f) of the Act

require?

2. Did we approve NOX waivers in Texas?

3. What is the current status of Texas NOX

waivers?

4. Texas Rule Changes to Accommodate

Section 182(f) NOX Waivers

D. Texas’ NSR Provisions for Implementing

Special Provisions for Ozone

Nonattainment Area Permitting under

Sections 182(c)(6), (7), and (8)

1. The De Minimis Rule in Section

182(c)(6) of the Act

2. Texas Five TPY Netting Trigger

3. Texas Definition of ‘‘Contemporaneous

Period’’ under Section 182(f) of the Act

4. Special Modification Rules in Sections

182(c)(7) and (8) of the Act

E. Other Revisions Affecting NSR

Permitting in Nonattainment Areas

1. Definition of ‘‘De Minimis threshold

test’’

2. Definition of ‘‘major modification’’

3. Definition of ‘‘net emission increase’’

4. Definition of ‘‘offset ratio’’

5. Definition of ‘‘potential to emit’’

6. Definition of ‘‘stationary source’’

III. Individual SIP Submittals Acted Upon in

This Document

IV. Request for Public Comments

V. Administrative Requirements

I. General Overview of The Texas

Nonattainment Permitting Regulations

We propose to approve the

recodification of and revisions to the

Texas SIP relating to revisions to Title

30, Texas Administrative Code (TAC)

Chapter 116, ‘‘Control of Air Pollution

by Permits for New Construction or

Modification,’’ as indicated in Table 1

below:

TABLE 1.—SIP REGULATIONS SUBMITTED BY TEXAS TO EPA

Section in 30 TAC chapter 116 Title/(Subject)

116.12 ................................................................. Nonattainment Review Definitions.

116.150 ............................................................... New Major Source or Major Modification in Ozone Nonattainment Area.

116.151 ............................................................... New Major Source or Major Modification in Nonattainment Area Other than Ozone.

116.170 ............................................................... Applicability for Reduction Credits.

116.170(1) ........................................................... (Emission reductions not required by State Implementation Plan or other Federal requirements).

Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules 2561

TABLE 1.—SIP REGULATIONS SUBMITTED BY TEXAS TO EPA—Continued

Section in 30 TAC chapter 116 Title/(Subject)

116.170(3) ........................................................... (Offset provisions for emission increases from rocket engine or motor firing).

This proposal includes portions of

revisions submitted by the Governor of

Texas to EPA on the following dates:

• August 31, 1993

• November 1, 1995

• July 18, 1996

• April 13, 1998

• March 16, 1999

We are taking this rulemaking action

under sections 110, 301 and part D of

the Act. As explained in the following

section, we are acting only on those

parts of these submittals which relate to

permitting sources in nonattainment

areas.

A. What Are We Proposing To Approve

in This Action?

We propose to approve regulations

submitted by Texas that satisfy

provisions of the Act that pertain to

permitting major sources and major

modifications in areas in Texas that do

not meet the ambient air quality

standards adopted by EPA.

Table 2 below identifies the

regulations that we propose to approve:

TABLE 2.—REGULATIONS THAT EPA PROPOSES TO APPROVE

Recodified 30

TAC chapter 116

Submittal dates of

recodified section Title or description Former rule

116.12 ............... August 31, 1993 ........

July 18, 1996

April 13, 1998

March 16, 1999

Nonattainment Review Definitions ............................................................................ 101.1.

116.150 ............. August 31, 1993 ........

November 1, 1995

April 13, 1998

March 16, 1999

New Major Source or Major Modification in Ozone Nonattainment Areas ............... 116.3(a)(7) and

(8).

116.151 ............. August 31, 1993 ........

April 13, 1998

New Major Source or Major Modification in Nonattainment Area Other than

Ozone.

116.3(a)(10).

116.170 ............. August 31, 1993 ........ Applicability for Reduction Credits ............................................................................ 116.3(c).

We propose to approve only those

provisions of the individual SIP

submittals which relate to the

permitting sources in nonattainment

areas. We will act on the remaining

provisions in a separate action.

B. Who Is Affected by This Action?

These State regulations apply to each

owner and/or operator who constructs

or modifies a stationary source in a

nonattainment area in Texas if the

stationary source is major for the air

pollutant for which the area is

nonattainment. A stationary source is

major if it emits, or has the potential to

emit, the nonattaining pollutant, or

precursor thereto, in amounts greater

than the major source threshold for the

nonattaining pollutant.

C. What Are the Major Source

Thresholds for Nonattainment

Pollutants?

The major source threshold varies,

depending on the pollutant and the

classification of the nonattainment area.

Any owner or operator who proposes to

construct a major stationary source must

obtain a permit which complies with

the regulations that we are proposing to

approve herein. Table 3 below lists the

major source threshold for each

pollutant.

TABLE 3.—MAJOR SOURCE THRESHOLDS

Pollutant: Classification Major source threshold Where specified in the Act

Ozone:

marginal ...................................................... 100 TPY ........................................................... Section 302(j)

moderate ..................................................... 100 TPY ........................................................... Section 302(j)

serious ........................................................ 50 TPY ............................................................. Section 182(c)

severe ......................................................... 25 TPY ............................................................. Section 182(d)

CO:

Moderate ..................................................... 100 TPY ........................................................... Section 302(j)

Serious ........................................................ 50 TPY ............................................................. Section 187(c)(1)

PM–10:

Moderate ..................................................... 100 TPY ........................................................... Section 302(j)

Serious ........................................................ 70 TPY ............................................................. Section 189(b)(3)

SO2 ............................................................. 100 TPY ........................................................... Section 302(j)

NOX ............................................................. 100 TPY ........................................................... Section 302(j)

Lead ............................................................ 100 TPY ........................................................... Section 302(j)

2562 Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules

11 See 57 FR 13498 (April 16, 1992) and 57 FR

18070 (April 28, 1992).

Table 3 refers to classifications for

areas designated nonattainment for

ozone, carbon monoxide (CO), and

particulate matter less than 10

micrometers (PM–10). These

nonattainment classifications are

defined in the Act as follows:

• Section 181(a) defines five area

classifications for ozone. These five

classifications are marginal, moderate,

serious, severe, and extreme. Texas has

no extreme ozone nonattainment areas

and does not address such areas in its

regulations.

• Section 186(a) defines two area

classifications for CO. These two

classifications are moderate and serious.

• Section 188 defines two area

classifications for PM–10. These two

classifications are moderate and serious.

A detailed description of the

individual area classifications for ozone,

CO, and PM–10 nonattainment areas is

contained in EPA’s General Preamble

for the Implementation of Title I of the

1990 Amendments, 57 FR 13498 (April

16, 1992).

D. What is a Major Modification?

A major modification is any physical

change, or change in the method of

operating a major stationary source

which significantly increases net

emissions of the air pollutant, or

precursor, for which the area is

nonattainment and which the source is

a major source before the modification.

Any owner or operator who proposes

a major modification must obtain a

permit that complies with the

regulations that we are proposing to

approve. Table 4 below lists the

significance level for each pollutant

which is used in determining whether a

net emissions increase is a major

modification.

TABLE 4.—SIGNIFICANCE LEVELS FOR MAJOR MODIFICATIONS

Pollutant: Classification Significance level Where specified in the Act or Regulations

Ozone:

Marginal ...................................................... 40 tons per year (TPY) .................................... 40 CFR 51.165(a)(x)

Moderate ..................................................... 40 TPY ............................................................. 40 CFR 51.165(a)(x)

Serious ........................................................ 25 TPY ............................................................. Section 182(c)(6) of the Act

Severe ......................................................... 25 TPY ............................................................. Section 182(c)(6) of the Act

CO:

Moderate ..................................................... 100 TPY ........................................................... 40 CFR 51.165(a)(x)

Serious ........................................................ 50 TPY ............................................................. ( a)

PM–10:

Moderate ..................................................... 15 TPY ............................................................. ( a)

Serious ........................................................ 15 TPY ............................................................. ( a)

SO2 ..................................................................... 40 TPY ............................................................. 40 CFR 51.165(a)(x)

NOX .................................................................... 40 TPY ............................................................. 40 CFR 51.165(a)(x)

Lead ................................................................... 0.6 TPY ............................................................ 40 CFR 51.165(a)(x)

a No significance level is specified in the Act nor in the regulations. The significance levels specified in Table 3 are the significance levels the

we approved for Texas on September 27, 1995 (60 FR 49781).

E. What Are the Requirements for

Permitting New and Modified Sources in

Nonattainment Areas?

The Act sets out the air quality

planning requirements for

nonattainment NSR in part D of title I.

We have issued a ‘‘General Preamble’’

which describes our preliminary views

for reviewing SIPs and SIP revisions

submitted under part D.1 This includes

SIP submittals with nonattainment area

permitting requirements in section 173

of the Act. Table 5 below identifies

these requirements and how Texas

addresses the requirements in its

revised regulations.

TABLE 5.—SUMMARY OF REQUIREMENTS FOR PERMITTING MAJOR SOURCES AND MAJOR MODIFICATIONS IN

NONATTAINMENT AREAS

The Act Citation and description of requirement Where addressed in recodified State Regulation

Former State regulation before recodificationa

§ 173(a)(1)(A). Base emissions offsets on the same emissions baseline used in

the demonstration of reasonable further progress.

§ 116.150(a)(4); § 116.151(3) § 116.3(a)(7)(C);

§ 116.3(a)(10)(D)

§ 173(a)(2). Apply Lowest Achievable Emission Rate (LAER) ................................ § 116.150(a)(1); § 116.151(1) § 116.3(a)(7)(A);

§ 116.3(a)(10)(A)

§ 173(a)(3). Demonstrate that all other major stationary sources under the same

ownership or operation in the State are complying with the Act.

§ 116.150(a)(2); § 116.151(2) § 116.3(a)(7)(B);

§ 116.3(a)(10)(B)

§ 173(a)(4). State cannot issue a permit if the EPA Administrator finds that the

State is not adequately enforcing the provisions of the applicable implementation plan for the nonattainment area in which the source proposes to construct

or modify.

The EPA has made no such determination for Texas. If EPA

makes this determination in the future, EPA will address

this matter with Texas at that time.

§ 173(a)(5):

Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules 2563

TABLE 5.—SUMMARY OF REQUIREMENTS FOR PERMITTING MAJOR SOURCES AND MAJOR MODIFICATIONS IN

NONATTAINMENT AREAS—Continued

The Act Citation and description of requirement Where addressed in recodified State Regulation

Former State regulation before recodificationa

• Analyze alternative sites, sizes, production processes, and environmental

control techniques for proposed sources

§ 116.150(a)(4); § 116.151(4) § 116.3(a)(7)(D);

§ 116.3(a)(10)(E)

• Demonstrate that the benefits of the proposed source significantly outweigh the environmental and social costs associated with its location, construction, or modification

§ 173(b) Prohibits use of growth allowance included in a SIP prior to the Act

Amendments of 1990 in an area which receives notice that such plan is substantially inadequate.

Not Applicable ....................... Not Applicable

§ 173(c)(1). A sources may obtain offsets in another nonattainment area under

the following conditions:

• The area in which the offsetting reductions originate has an equal or higher nonattainment classification, and§ 116.150(a)(3); § 116.151(3) § 116.3(a)(7)(C);

§ 116.3(a)(10)(D)

• The emissions from the nonattainment area where the offsetting reductions originate will contribute to a National Ambient Air Quality Standards

(NAAQS) violation in the area in which the source would construct.

§ 173(c)(1). A new or modified major stationary source must offset a proposed

emissions increase with real reductions in actual emissions.

§ 116.150(a)(3); § 116.151(3);

§ 116.12(14)—Definition of

‘‘Offset ratio’’.

§ 116.3(a)(7)(C);

§ 116.3(a)(10)(D)

§ 173(c)(2). Must not use emission reductions otherwise required by the Act ....... § 116.170(1) .......................... § 116.3(c)(1)

§ 173(e). A State may allow any existing or modified source that tests rocket engines or motors to use alternative or innovative means to offset emissions increases from firing and related cleaning.b.§ 116.170(3) .......................... § 116.3(c)(3)

aAll Sections cited in this column are Sections that EPA approved on September 27, 1995 (60 FR 49781).

bThis type of source may use alternative or innovative offsetting if it satisfies the following conditions:

(a) the proposed modification is for expansion of a facility already permitted for such purposes as of November 15, 1990;

(b) the source has used all available offsets and all reasonable means to obtain offsets and sufficient offsets are not available;

(c) the source has obtained a written finding by the appropriate, sponsoring Federal agency that the testing is essential to national security;

and

(d) the source will comply with an alternative measure designed to offset any emissions increases not directly offset by the source.

The Act further provides an alternative to the above. The permitting authority may require an emission fee amounting to no more than 1.5

times the average cost of stationary control measures adopted in that area during the previous three years.

II. Review of Texas’ Regulations for

Permitting Major Sources and Major

Modifications in Ozone Nonattainment

Areas

A. What Does the Current Texas SIP

Require?

We approved the Texas SIP for

permitting major sources and major

modifications in ozone nonattainment

areas on September 27, 1995 (60 FR

49781). We approved the regulations

after we determined that they meet the

requirements of title I, part D, subpart 2

of the Act.

The current SIP addresses ozone

nonattainment area permitting in

section 116.3(a)(7). This section

includes the provisions described in

Table 5 of this preamble and meets the

requirements of sections 173 and 182 of

the Act.

Section 182 of the Act provides

special provisions for ozone

nonattainment areas. This section

specifies individual major source

thresholds for marginal, moderate,

serious, severe and extreme ozone

nonattainment areas. See Table 3 in

section I.C of this preamble for a list of

the individual major source thresholds.

Section 182 also specifies the offset

ratios that are required for marginal,

moderate, serious, severe and extreme

ozone nonattainment areas. Table 6

below lists the applicable offset ratio for

each type of ozone nonattainment area.

TABLE 6.—OFFSET RATIOS FOR EACH TYPE OF OZONE NONATTAINMENT AREA

Ozone nonattainment

classification Offset ratio Clean Air Act citation foroffset ratio

marginal ............................................................. 1.10 to 1 ........................................................... Section 182(a)(4).

moderate ............................................................ 1.15 to 1 ........................................................... Section 182(b)(5).

serious ............................................................... 1.20 to 1 ........................................................... Section 182(c)(10).

severe ................................................................ 1.30 to 1 ........................................................... Section 182(d)(2).

Extreme ............................................................. 1.50 to 1 ........................................................... Section 182(e)(1).

The current SIP includes major source

thresholds and the offset ratios in Table

I of Section 116.12. In Table I, the

applicable offset ratio of volatile organic

compounds (VOC) or NOX is the same

as required by the above stated sections

of the Act.

Finally, the current SIP includes

provisions pertaining to the use of

emission reduction credits as offsets and

special provisions for offsetting

emissions increases at facilities which

test rocket engines and motors in

section 116.3(c)(1) and (3).

B. What SIP revisions did Texas submit?

Texas recodified Chapter 116 and

submitted the recodified regulation to

EPA in August 31, 1993. The recodified

regulation also revised Texas’

provisions for implementing section

182(c)(6) of the Act.

2564 Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules

2 Includes the following Texas counties: Collin,

Dallas, Denton, and Tarrant Counties in Texas

3 Includes El Paso County in Texas.

4 Includes the following Texas counties: Brazoria,

Chambers, Fort Bend, Galveston, Harris, Liberty,

Montgomery, and Waller.

5 Includes the following Texas counties: Hardin,

Jefferson, and Orange Counties.

6Table I of section 116.12 specifies the various

classifications of nonattainment along with the

associated emission levels which designate a major

modification for those areas. A detailed discussion

of the changes to Table I is included in section of

the preamble describing the submitted definition of

‘‘major modification.’’

Subsequent to the recodification,

Texas submitted revisions to waive the

requirement to address NOX as a

precursor to ozone on November 1,

1995; July 18, 1996; and April 13, 1998.

On April 13, 1998, Texas submitted a

revision to further modify its provisions

for implementing section 182(c)(6) and

to incorporate the provisions of sections

182(c)(7) and (8) of the Act.

Texas also submitted revised

definitions of

‘‘major modification,’’

‘‘net emissions increase,’’ and

‘‘potential to emit’’;

and submitted new definitions for

‘‘de minimis threshold test,’’

‘‘offset ratio,’’

‘‘project net,’’ and

‘‘stationary source’’

We will discuss the Texas

nonattainment permitting provisions as

outlined below:

• Section C discusses Texas’ plan to

implement the NOX waivers approved

by EPA under section 182(f) of the Act,

• Section D discusses Texas’

regulation for implementing section

182(c)(6), (7) and (8) of the Act, and

• Section E discusses the new and

revised nonattainment permitting

definitions.

C. Summary of Texas 182(f) NOX

Waivers

1. What Does Section 182(f) of the Act

Require?

Section 182(f) sets forth the

presumption that NOX is an ozone

precursor unless the Administrator

makes a finding of nonapplicability or

grants a waiver pursuant to criteria

contained therein. Specifically, section

182(f) provides that requirements

applicable for major stationary sources

of VOC shall apply to major stationary

sources of NOX, unless otherwise

determined by the Administrator, based

upon certain determinations related to

the benefits or contribution of NOX

control to air quality, ozone attainment,

or ozone air quality.

2. Did We Approve NOX waivers in

Texas?

We approved petitions submitted by

Texas under section 182(f) to waive NOX

provisions in Texas, as follows:

• On November 28, 1994, we

conditionally approved two petitions

from Texas, each dated June 17, 1994.

This action exempted Dallas-Fort Worth

(DFW) 2 and El Paso (ELP) 3 ozone

nonattainment areas from NOX control

requirements of section 182(f) of the

Act. See 59 FR 60709.

• On April 19, 1995, we approved a

petition from Texas dated August 17,

1994. This action temporarily exempted

the Houston-Galveston (HGA) 4 and

Beaumont-Port Arthur (BPA) 5 ozone

nonattainment areas from the NOX

control requirements of section 182(f) of

the Act. These temporary exemptions

expired December 31, 1996. See 60 FR

19515.

• On May 23, 1997, we approved a

petition from Texas dated March 8,

1996, to extend the NOX waiver in HGA

and BPA until December 31, 1997. See

62 FR 28344.

• On April 20, 1999, we approved a

petition from Texas dated November 13,

1998, to rescind the conditional NOX

exemption for the DFW ozone

nonattainment area. Texas petitioned for

rescission of the exemption after EPA

reclassified DFW from a moderate ozone

nonattainment area to a serious ozone

nonattainment area. The modeling for

this serious ozone nonattainment area

SIP shows that control of NOX sources

will help the area to attain the air

quality standard for ozone. See 64 FR

19283.

3. What Is the Current Status of Texas

NOX Waivers?

On December 31, 1997, the NOX

waiver in HGA and BPA expired. On

February 12, 1998, we published a

document in the Federal Register

concerning Texas’ decision not to

petition for further extension of the NOX

exemption in the HGA and BPA areas.

See 63 FR 7071. Since the extension of

the temporary exemption expired on

December 31, 1997, the State must

implement the numerous requirements

relating to NOX in the HGA and BPA

areas. Accordingly, any NSR permits

that Texas had not deemed to be

complete prior to January 1, 1998, must

comply with the NOX NSR

requirements, consistent with the policy

set forth in the EPA’s NSR

Supplemental Guidance memorandum

dated September 3, 1992, from John

Seitz, Director, EPA’s Office of Air

Quality Planning and Standards.

On February 18, 1998, we published

our finding that the DFW nonattainment

area has not attained the 1-hour ozone

NAAQS by the applicable attainment

date in the Act for moderate ozone

nonattainment areas, November 15,

1996. We based the finding on the

review of monitored air quality data

from 1994 through 1996 for compliance

with the 1-hour ozone NAAQS. As a

result of this finding, the DFW ozone

nonattainment area was reclassified by

operation of law as a serious ozone

nonattainment area, effective March 20,

1998. Texas was required to submit a

new SIP, no later that March 20, 1999,

addressing attainment of that standard

by November 15, 1999. Texas submitted

a revised plan on March 16, 1999, in

satisfaction of this requirement.

In its revised plan, Texas again

recognizes NOX as an ozone precursor in

the DFW nonattainment area. Texas also

forwarded a petition to us on November

13, 1998, requesting that we withdraw

the waiver for NOX that we had

approved on November 28, 1994, for the

DFW nonattainment area. On April 20,

1999, we approved this petition and

reinstated NOX as an ozone precursor in

the DFW nonattainment area.

4. Texas Rule Changes To Accommodate

Section 182(f) NOX Waivers

Texas submitted the following SIP

revisions to incorporate the section

182(f) NOX waivers and subsequent

reinstatement for NOX as an ozone

precursor:

• On November 1, 1995, Texas

submitted revisions to section 116.150

to implement the NOX waivers

approved for the DAL, ELP, HGA, and

BPA ozone nonattainment areas. On

July 18, 1996, Texas, submitted

revisions to Table I in section 116.12 6

to remove NOX as an ozone precursor,

consistent with EPA’s approval of the

NOX waivers.

• On April 13, 1998, Texas submitted

revisions to sections 116.12 (Table I)and

116.150(c), to reinstate NOX as an ozone

precursor in the HGA and BPA areas

following the expiration of the

temporary waivers for those areas on

December 31, 1997.

• On March 16, 1999, Texas

submitted revisions to sections 116.12

(definition of ‘‘major modification’’ and

Table I) and 116.150(b), to reinstate NOX

as an ozone precursor in the DFW area.

The above described revisions to

section 116.150 are discussed in the

following paragraphs.

a. What are Texas’ provisions for

addressing NOX Waivers in DFW and

ELP? Texas addresses the NOX waivers

for DFW and ELP in section 116.150(b)

submitted November 1, 1995. Section

116.150(b) is consistent with the NOX

Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules 2565

7Section 116.150(c) exempts NOX from the

application of lowest achievable emission rate,

statewide compliance by all sources under common

control with the applicant, and alternate site

analysis, which are otherwise required by section

116.150(a)(1), (2), and (4), respectively.

8Section 181(a) defines five area classifications

for ozone based on ambient ozone concentrations

(ozone design values). These five classifications (in

ascending order of severity) are marginal, moderate,

serious, severe, and extreme.

A detailed description of the individual area

classifications for ozone nonattainment areas is

contained in the EPA’s General Preamble for the

Implementation of Title I of the 1990 Amendments.

9Subsection 182(c) of the Act, including

paragraphs (6), (7), and (8) therein, sets forth special

provisions applicable in serious ozone

nonattainment areas. Subsection 182(d) of the Act

incorporates the provisions of subsection 182(c) as

applicable requirements for severe ozone

nonattainment areas.

10A thorough analysis of the de minimis rule in

section 182(c)(6) and EPA’s interpretations of this

section is contained in the proposed NSR reform

rulemaking published July 23, 1996 (61 FR 38298).

11EPA’s nonaggregation policy provides that a

proposed modification resulting in a de minimis

increase is not major. This applies when the

proposed increase in emissions standing alone

without considering any decreases associated with

the proposed modification is less than the

applicable significance threshold. See Table 4 for a

list of the significance thresholds. In such case, a

source does not consider previous

contemporaneous emission increases and decreases

to determine if its proposed project is major. This

policy is discussed in detail in an EPA

memorandum dated June 3, 1983 entitled ‘‘Net

Emission Increase Under PSD’’ from Sheldon

Myers, Director, Office of Air Quality Planning and

Standards. Section 182(c)(6) of the Act is a

departure from this interpretation.

waiver approved by EPA on November

28, 1994. Following the redesignation of

DFW to a serious ozone nonattainment

area, Texas revised section 116.150(b) to

revoke applicability of the NOX waiver

in DFW. As revised, section 116.150(b)

now only identifies ELP as the only area

in Texas where a section 182(f) waiver

continues to apply. Texas submitted

these revisions to section 116.150(b) on

March 16, 1999.

b. What are Texas’ provisions for

addressing NOX Waivers in HGA and

BPA? Texas addresses the NOX waivers

for HGA and BPA in section 116.150(c)

submitted November 1, 1995. This

Section temporarily removes the

requirements relating to NOX emissions

(as an ozone precursor) in these areas.

Section 116.150(c) exempts NOX from

otherwise applicable nonattainment

area permitting requirements 7 (except

for NOX offsets). The requirements for

obtaining NOX offsets continue to apply,

and will be included in the source’s

permit. However, the requirement to

obtain such offsets is held in abeyance

until January 1, 1998.

Section 116.150(c) further requires a

source to document any proposed

increase of NOX equal to or greater than

40 TPY and submit documentation of

netting calculations associated with the

proposed increase, and the source must

otherwise comply with the requirements

of sections 116.150(a)(1)–(4). The

requirements of sections 116.150(a)(1)–

(4) are discussed in sections I.C and II.D

of this preamble.

Texas submitted further revisions to

section 116.150(c) on April 13, 1998.

This submittal reinstates the NSR

requirements for NOX in HGA and BPA,

effective January 1, 1998. The submittal

further provides that sources with NOX

offsets in the HGA and BPA areas held

in abeyance shall obtain the required

NOX offsets no later than January 1,

2000.

The provisions of section 116.150(b)

and (c), submitted November 1, 1995;

and revisions submitted April 13, 1998,

and March 16, 1999; are consistent with

the NOX waivers approved by EPA for

DFW, ELP, HGA, and BPA on November

28, 1994; April 19, 1995; and May 23,

1997; pursuant to section 182(f) of the

Act. The revisions submitted April 13,

1998, reinstate the NOX requirements in

HGA and BPA consistent with the

December 31, 1997, expiration of the

NOX waiver in those areas. The

revisions submitted March 16, 1999,

reinstate the NOX requirements in DFW.

D. Texas’ NSR Provisions for

Implementing Special Provisions for

Ozone Nonattainment Area Permitting

Under Sections 182(c)(6), (7), and (8).

Sections 182(c)(6), (7), and (8) of the

Act apply in serious and severe ozone

nonattainment areas. 8 9 Section

182(c)(6) sets forth procedures for

determining whether a physical or

operational change at an existing major

stationary source would be subject to

the nonattainment area permit

requirements. Section 182(c)(7) and (8)

establish special provisions for

permitting sources if the source

internally offsets its proposed increase

resulting from a major modification.

Following is a discussion of how Texas’

regulations meet the provisions of

sections 182(c)(6), (7), and (8) of the Act.

Section 1 below addresses the de

minimis rule in section 182(c)(6) of the

Act. Section 2 addresses the special

provisions in sections 182(c)(7) and (8)

of the Act.

1. The De Minimis Rule in Section

182(c)(6) of the Act

a. What is the de minimis rule?

Section 182(c)(6) of the Act applies in

serious and severe ozone nonattainment

areas. It specifies an approach for

determining whether a proposed

modification is subject to nonattainment

NSR. 10 It states that increased emissions

of VOC (and presumably NOx) resulting

from any modification of a major

stationary source:

‘‘. . . shall not be considered de minimis for

purposes of determining the applicability of

the permit requirements established by this

chapter unless the increase in net emissions

of such air pollutant from such source does

not exceed 25 tons when aggregated with all

other net increases in emissions from the

source over any period of 5 consecutive

calendar years which includes the calendar

year in which such increase occurred . . .’’

This provision changes the process for

determining applicability at existing

major sources as follows:

• It changes the significance level for

VOC emissions from 40 TPY to ‘‘greater

than 25 TPY,’’ i.e., 25 TPY or less is de

minimis.

• It specifies a slightly different

‘‘contemporaneous’’ period, and

• It departs from the ‘‘nonaggregation’’ policy 11 to require netting

over the contemporaneous period in all

instances where there is a net increase

in emissions from the proposed

modification standing alone.

Neither the Act itself nor the current

Federal regulation defines what

constitutes a ‘‘net increase’’ as provided

in the de minimis rule. However, in the

proposed NSR reform rulemaking (see

footnote 10), we proposed a procedure

for determining the net increase in

emissions under section 182(c)(6) and

applicability of the de minimis rule.

Under this proposal, a source

determines applicability of

nonattainment new source review

(NNSR) as follows:

(1) It determines the ‘‘increase in net

emissions’’ from the proposed

modification. The net emissions from

the proposed modification (referred to

here as the ‘‘project net’’) is the sum of

all proposed creditable emissions

increases and decreases proposed at the

source between: (A) the date of

application for the modification and (B)

the date the modification begins

emitting. An increase or decrease is

creditable if it meets the criteria

described in 40 CFR 51.165(a)(1)(vi).

(2) If the project net is an emissions

increase, then the source aggregates the

project net emissions increase with all

other ‘‘net increases in emissions from

the source’’ over a period of five

consecutive calendar years which

includes the year in which the source

increase occurs. We refer to this

aggregation as the contemporaneous net.

If the contemporaneous net increase is

greater than 25 TPY, then the proposed

modification is subject to NNSR. (The

2566 Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules

12Texas submitted a revision on April 13, 1998,

to include a provision to trigger contemporaneous

netting on the basis of any increase in ‘‘project net.’’

‘‘contemporaneous period’’ is discussed

in greater detail in section II.D.3.)

b. How does the current Texas SIP

address the de minimis rule? On

September 27, 1995 (60 FR 49781), we

approved revisions to Texas Chapter

116—‘‘Control of Air Pollution by

Permits for New Construction or

Modification’’ which included

provisions pertaining to permitting

major sources and major modifications

in nonattainment areas. We approved

these revisions based upon our

determination that they satisfy the

provisions of title I, part D of the Act.

The Texas SIP currently incorporates

the de minimis rule as codified in the

Act. As approved, the de minimis rule

applies in moderate, serious, and severe

ozone nonattainment areas in Texas.

Under the current SIP-approved rule

when a source proposes a physical or

operational change at an existing major

source it must determine the

contemporaneous net emissions

increase. The source makes this

determination by aggregating the

proposed increase with all other

creditable increases and decreases

during the previous five calendar years,

including the calendar year of the

proposed change.

A source must currently undergo

NNSR if the contemporaneous net

increase in VOC or NOX equals or

exceeds 40 TPY in moderate ozone

nonattainment areas or 25 TPY of VOC

or NOX in serious and severe ozone

nonattainment areas. See 30 TAC

section 101.1 (definition of ‘‘de minimis

threshold’’), section 116.3(a)(7), and

Table I in section 116.12.

c. What changes did Texas make to its

de minimis rule? On August 31, 1993,

Texas submitted a recodification of and

revisions to Chapter 116 to EPA. The

recodification and revisions submitted

April 13, 1998, include provisions

which implement the de minimis rule.

As submitted, Texas made two

changes to section 116.150 (formerly

section 116.3a(7)) which relate to the

de minimis rule in section 182(c)(6) of

the Act. These changes are:

(1) The proposed project triggers

contemporaneous netting (the ‘‘netting

trigger’’) unless at least one of the

following conditions are met:

—the proposed increase is less than five

TPY without consideration of other

decreases at the source, or

—the ‘‘project net’’ 12 is zero or less.

(2) Texas specifies a different

contemporaneous time period over

which a source may aggregate creditable

increases and decreases to determine its

contemporaneous net emission increase.

On the basis of information gathered

in 1995, we believe that the submitted

regulation meets the de minimis

requirements of section 182(c)(6) of the

Act, even with provisions that are not

verbatim to the Act. The basis for this

conclusion is discussed in the following

sections of this preamble. Section 2

addresses the five TPY netting trigger

and section 3 addresses the

contemporaneous period.

2. Texas Five TPY Netting Trigger

a. How does a source trigger

contemporaneous netting under Texas’

regulations? As submitted August 31,

1993, section 116.150(a) requires the

de minimis threshold test (which

includes contemporaneous netting) for

all proposed VOC and NOx emission

increases that equal or exceed five TPY

in moderate, serious, and severe ozone

nonattainment areas. On April 13, 1998,

Texas submitted revisions to sections

116.12 and 116.150 to include a second

netting trigger based upon the ‘‘project

net.’’ The April 13, 1998, submittal also

revised section 116.12 to add a new

definition of ‘‘project net’’ (section

116.12(16) consistent with EPA’s policy

as described in the NSR reform

proposal. This revision provides a

second netting trigger. A source may

trigger contemporaneous netting on the

basis of any increase in the ‘‘project

net.’’ Texas defines the project net as the

total increase in emissions resulting

from a proposed physical or operational

change at a stationary source minus any

creditable source wide decreases

proposed at the source between the date

of application for the modification and

the date the resultant modification

begins emitting. If the project net is an

increase, then the source aggregates the

project net with all other creditable

increases and decreases in emissions

from the source over the

contemporaneous period to determine

the ‘‘contemporaneous net.’’ As revised,

section 116.150 now provides that a

proposed project triggers

contemporaneous netting unless the

project results in either: (1) less than

five TPY increase from the proposed

project or (2) no increase in project net.

b. Does the five TPY netting trigger

meet the Act? As adopted by Texas, the

five TPY netting trigger is the sum of all

increases which occur as the result of

the proposed project without

consideration (unlike the Federal

counterpart) of any decreases. If these

project increases equal or exceed five

TPY, the source must perform

contemporaneous netting, unless the

project net is zero or less. For reasons

below, we conclude that the Texas five

TPY netting trigger meets the Act.

Under Alabama Power Company v.

Costle, 636 F.2d 323 (D.C. Cir. 1979), the

court held that we have the authority to

recognize and exempt inconsequential

or trivial increases except where

Congress has unambiguously expressed

an intention to preclude them. As

discussed in the proposed NSR reform

rulemaking, we have determined that

the term ‘‘net increase’’ in this context

is ambiguous. We believe that Texas has

met its burden of demonstrating that the

netting trigger of a five TPY increase

irrespective of decreases would ‘‘yield a

gain on trivial or no value,’’ id. at 357

and is appropriate to exempt as

de minimis. As explained below, the

particular circumstances of this case

demonstrate why this increase meets the

Act’s de minimis rule.

In June 1995, we reviewed several

permits issued by Texas in the Houston/

Galveston area (a severe ozone

nonattainment area) to assess Texas’ five

TPY netting trigger comparing it to the

project net which triggers the

requirement to perform

contemporaneous netting. In this study,

we evaluated which projects triggered

contemporaneous netting under Texas’

five TPY trigger to those which triggered

contemporaneous netting based upon

the project net increase. The study

revealed that all projects which

triggered contemporaneous netting

under the project net would have

triggered contemporaneous netting

under the five TPY increase.

The data reviewed in 1995 indicate

that the five TPY netting trigger meets

the Alabama Power test and thus the

statutory project net. Facts which

indicate this conclusion are discussed

below.

• The data show that it is unlikely

that a source will be able to indefinitely

schedule projects with less than five

TPY increases. A project with a five

TPY increase is an extremely small

project. It would be impractical for a

source to indefinitely avoid

nonattainment NSR by constructing a

series of projects less than five TPY.

• If a source triggers the requirement

to perform contemporaneous netting, it

must include all creditable increases

and decreases in the calculation of the

contemporaneous net emissions

increase. This includes any emission

increases less than five TPY which did

not undergo nonattainment NSR.

• The increases are inherently

conservative. This is evident when one

examines the procedure for calculating

the creditable increases of a particular

change. This creditable increase is the

change:

Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules 2567

—From the old level of actual emissions

—To the new potential to emit (PTE) or

the new allowable emission rate,

whichever is lower.

This is known as the ‘‘actual to

potential’’ method for determining the

creditable increase. Typically, an

emissions unit’s actual emissions is less

than its PTE because the unit does not

actually operate at maximum

production rate for an entire year. Thus

the actual increase is less than the

creditable increase. The creditable

increase consequently represents a

‘‘worst case’’ scenario which the source

cannot exceed without violating its

permit.

No matter how insignificant, the

structure of the Texas program

necessarily requires the State to quantify

and track these increases for they

remain perpetually within the

contemporaneous window. Thus the

State assures compliance with the

NAAQS. Further, these increases are

counted as minor source growth under

section 173(a)(1)(A) of the Act.

• Finally, we have approved a similar

five TPY netting trigger in Louisiana’s

nonattainment SIP. Louisiana’s

nonattainment regulations apply in the

Baton Rouge Area, a serious ozone

nonattainment area. The de minimis

provisions of section 182(c)(6) of the Act

apply to this area. Louisiana’s

regulations likewise trigger

contemporaneous netting whenever a

major source of VOC equals or exceeds

five TPY. We approved this regulation

after careful consideration of all aspects

of its regulations, including the five TPY

netting trigger. See 62 FR 52948,

published October 10, 1997.

These facts form the basis for the

conclusion that the five TPY netting

trigger adopted by Texas is equivalent to

and satisfies the requirement of section

182(c)(6) of the Act and therefore meets

the Act.

3. Texas Definition of

‘‘Contemporaneous Period’’ under

Section 182(c)(6) of the Act

a. What is the contemporaneous

period in section 182(c)(6) of the Act?

Section 182(c)(6) of the Act provides

that a particular physical change or

change in the method of operation is de

minimis only if the increase in net

emissions of VOC or NOX resulting from

such project does not exceed 25 TPY

when aggregated with all other net

increases in emissions of VOC or NOX

from the source over any period of five

consecutive calendar years which

includes the calendar year in which

such increase occurred.

b. What is the contemporaneous

period in the current Texas SIP? The

currently approved SIP addresses the

applicable contemporaneous period in

the definition of ‘‘de minimis threshold’’

in section 101.1 of the General Rules,

Table I of section 116.12, and in section

116.3(a)(7) of Chapter 116. The SIP

requires the following:

—Section 101.1 defines the term ‘‘de

minimis threshold’’ as an emission level

determined by aggregating the proposed

increase with all other creditable

increases and decreases during the

previous five calendar years, including

the calendar year of the proposed

change. The total of this aggregation is

de minimis if it is less than the

applicable major modification level (in

TPY) for the specific nonattainment

area.

—Section 116.3(a)(7) requires

—a source to apply the de minimis

threshold test to any proposed

increase of VOC or NOX in moderate,

serious, and severe ozone

nonattainment areas.

—The de minimis test thresholds are the

same as the major modification levels

stated in Table I, but aggregated over

the applicable five-year netting

period.

—The source must evaluate past net

increases even when the proposed

increase is below the major

modification level.

—Table I of section 116.12 specifies

the various classifications of

nonattainment along with the associated

emission levels which designate a major

modification for those areas. Table I

specifies the de minimis thresholds as

40 TPY of VOC in marginal and

moderate ozone nonattainment areas

and 25 TPY of VOC in serious and

severe ozone nonattainment areas. We

approved these provisions on

September 27, 1995.

c. What changes did Texas make to its

contemporaneous period? As submitted

August 31, 1993, Texas defined the term

‘‘contemporaneous period’’ as described

in the Table 7 below:

TABLE 7. DESCRIPTION OF TEXAS’ CONTEMPORANEOUS PERIODS

Pollutant Contemporaneous period begins Contemporaneous period ends

If source has PTE less than 250 TPY

VOC ................................................. Five years before commencement of construction ............................... Date that new or modified source

begins operation.

NOX ................................................. Latter of ..................................................................................................

—November 15, 1992, or ......................................................................

—Five years before commencement of construction ............................

Date that new or modified source

begins operation.

If source has PTE equal to or greater than 250 TPY

VOC ................................................. The earlier of .........................................................................................

—Five years before commencement of construction ............................

—November 15, 1992 ...........................................................................

Date that new or modified source

begins operation.

NOX ................................................. November 15, 1992 ............................................................................... Date that new or modified source

begins operation.

On April 13, 1998, Texas submitted a

revision to definition of

‘‘contemporaneous period.’’ Texas

revised the definition to delete the start

of the contemporaneous period at five

years prior to commencement of

construction for a source with a PTE of

250 TPY or greater. This change is

administrative in that it recognizes that

as of the date of the adoption of the

revision (March 18, 1998), all permit

applications would be submitted after

November 15, 1997, and the applicable

contemporaneous period would begin

on November 15, 1992. This change

does not affect applications which were

submitted prior to November 15, 1997,

which must consider all creditable

increases and decreases which occur

five years prior to the commencement of

construction.

d. Does Texas’ contemporaneous

period meet the requirements of the

Act? The Texas definition of

2568 Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules

13Prior to November 15, 1992, the applicable

significance threshold for VOC was 40 TPY. See 40

CFR 51.165(a)(1)(x). The requirement to perform

contemporaneous netting was triggered whenever a

particular physical of operational change equaled or

exceeded 40 TPY. The source would then add the

proposed increase to all other contemporaneous

increases and decreases to determine the net

emissions increase. If the resulting net emissions

increase was 40 TPY or more, the proposed increase

was subject to permitting requirements applicable

in ozone nonattainment areas.

‘‘contemporaneous period’’ does not

track but meets the Act. To determine

whether Texas’ definition

‘‘contemporaneous period’’ meets the

Act, we reviewed several permit files for

sources permitted with increases of

VOC in Harris County, Texas (within

the Houston/Galveston region, a severe

ozone nonattainment area). Following a

thorough review of the data, we have

concluded that Texas’ definition of

‘‘contemporaneous period’’ requires the

same netting period established in

section 182(c)(6) of the Act and more.

A source with a PTE greater than or

equal to 250 TPY performs

contemporaneous netting over a period

which begins on the earlier of the date

five years prior to commencement of

construction or November 15, 1992. The

contemporaneous period ends when the

proposed increase in emission actually

occurs. After November 15, 1997, the

beginning date of the contemporaneous

period is ‘‘tagged’’ at November 15,

1992, for all complete permit

applications submitted after November

15, 1997. Thus, after November 15,

1997, a proposed modification considers

all creditable increases and decreases

which occur between November 15,

1992, and the date that the proposed

increase in emissions occurs. This will

result in a longer contemporaneous

period than specified in section

182(c)(6) of the Act. This means that

sources must demonstrate that the

contemporaneous net is satisfied over

an even longer period than that required

by the Act.

For sources greater than 250 TPY, the

tagged netting window simplifies the

netting process and facilitates a source’s

ability to plan for the future by

providing stability in the increases and

decreases that are creditable for netting.

Such sources have numerous options

available for expansion by shutting

down older, inefficient, units or adding

emission controls to the units.

Furthermore, these sources undertake

numerous modifications each year.

These numerous modifications,

combined with a ‘‘moving’’ five year

contemporaneous period would make

the netting exercise difficult because

increases and decreases are continually

moving in and out of the netting

window.

The 1995 evaluation indicated a trend

towards reductions in net emissions as

time passes. The data further indicate

that all physical and operational

changes which we reviewed would have

netted out of review under both Texas’

tagged contemporaneous period and

under the five year contemporaneous

period specified in section 182(c)(6) of

the Act.

This trend towards achieving lower

net emissions indicates that the netting

mechanism used by Texas is achieving

beneficial results inherent in reducing

emissions. The reductions occur as a

result of lowering the significance

threshold from 40 TPY to 25 TPY 13 and

from lowering the netting trigger (which

triggers the requirement for a source to

perform contemporaneous netting), from

40 TPY to five TPY.

In addition, the tagged

contemporaneous period used by Texas

is more conservative than the five year

period in the Act. The following

information illustrates the conservative

nature of the tagged contemporaneous

period:

• The tagged contemporaneous

period benefits the environment by

encouraging emission reductions that

would not otherwise occur. Whenever a

source proposes a physical or

operational change, it must demonstrate

that its net emissions increase in

emissions of VOC on NOX are below the

applicable modification level in Table I

of section 116.12. Otherwise it must

undergo nonattainment review. A major

source which undergoes several projects

whose contemporaneous net emissions

increase is less than 25 TPY does not

undergo nonattainment review. Over

time such source must demonstrate,

with each physical or operational

change, that the net emissions increase

is less than the applicable modification

level (Table I of section 116.12) over an

expanding contemporaneous period

which begins November 15, 1992. By

retaining increases in the tagged

contemporaneous period (which would

otherwise drop out after five years) a

source must continue to account for

increases that did not undergo

nonattainment review and were not

offset through the nonattainment review

permitting process. This growing data

base of increases will necessarily

provide incentive for a source to achieve

additional reductions to net against

these increases. This results in greater

environmental benefits than would

otherwise occur in the five year moving

contemporaneous period required by

the Act.

• Decreases are more likely to be

removed from the contemporaneous

period than increases. There are many

ways that decreases may be removed

from creditability for netting. Examples

of decreases which will drop out of the

contemporaneous period, because they

are no longer ‘‘creditable’’ are:

—A decrease that is subsequently used

as reasonably available control

technology.

—decreases used to offset increases

which undergo NNSR

—decreases used in the demonstration

of attainment of the national ambient

air quality standard or in the

demonstration of reasonable further

progress. See 30 TAC 116.12(13) in

Texas’ rules and 40 CFR

51.165(a)(1)(vi)(C)(3).

Increases, however, may only be

removed from consideration in

subsequent netting if: (1) they undergo

nonattainment permitting and (2) are

offset at the appropriate ratio specified

in Table I of section 116.12.

Consistent with the above discussion,

we believe that the tagged

contemporaneous period adopted by

Texas meets the requirements of the

Act. We request comments on this

proposal to approve Texas tagged

contemporaneous period for major

sources with a PTE greater than 250

TPY of VOC.

For sources with a PTE less than 250

TPY, Texas adopted a contemporaneous

period which begins five years prior to

commencement of construction and

ends when the proposed emission

increase occurs. Texas adopted a

‘‘moving’’ contemporaneous period

rather than the tagged contemporaneous

period because these smaller sources do

not have as many netting opportunities

as the larger sources. The moving

window provides smaller sources with

greater flexibility for growth. The

contemporaneous period is identical to

the contemporaneous period specified

in 40 CFR 52.21(b)(3)(ii) for determining

applicability under the Federal

regulations for prevention of significant

deterioration of air quality. This

contemporaneous period more closely

approximates the contemporaneous

period in section 182(c)(6) of the Act,

which requires contemporaneous

netting over a period of five consecutive

calendar years.

Our evaluation of data for several

Texas sources indicated that all projects

which netted out of nonattainment

review using Texas’ definition of

‘‘contemporaneous period,’’ would have

netted out of review using the netting

period in the Act. The Technical

Support Document for today’s proposal

contains the data gathered by us and our

evaluation thereof. We conclude that the

Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules 2569

14Section 182(f)(1) of the Act provides that

requirements (which include the requirements of

sections 182(c)(6), (7), and (8)) applicable for major

stationary sources of VOC shall apply to major

stationary sources of NOX, unless otherwise

determined by the Administrator, based upon

certain determinations related to the benefits or

contribution of NOX control to air quality, ozone

attainment, or ozone air quality. See section II.C.I

of this preamble for further discussion of the

requirements of section 182(f)(1).

15A thorough analysis of the special rules in

section 182(c)(7) and(8) and EPA’s interpretations

of this section is contained in the proposed NSR

reform rulemaking.

contemporaneous period adopted by

Texas meets the Act.

Texas further provides that for major

sources of NOX in ozone nonattainment

areas in which NOX is an ozone

precursor, the contemporaneous period

for NOX shall begin no earlier than

November 15, 1992. In serious and

severe ozone nonattainment areas, the

contemporaneous period is different

from the netting period in section

182(c)(6) of the Act. Prior to November

15, 1997, Texas’ definition will provide

for a shorter contemporaneous period

than the five consecutive calendar years

specified in the Act. However, Texas

recognized the need to incorporate a

transition period because the Act does

not require NOX to be regulated as an

ozone precursor until after November

15, 1992.

We believe that the conclusions made

for VOC will hold equally well for the

emissions of NOX. Earlier discussions

herein illustrate that since November

15, 1992, a declining trend in the net

increases of VOC emissions in ozone

nonattainment areas. Factors which

contribute to this trend are the lower

significance threshold of 25 TPY and

the five TPY netting trigger. We believe

that this trend will hold true for net

increases of NOX and well as for VOC.

After November 15, 1997, NOX increases

will be treated the same as VOC

increases. At that time, the reasoning for

proposing approval of the

contemporaneous period for VOC will

hold true for proposing to approve the

contemporaneous period for NOX. For

sources with a PTE of 250 TPY or more

of NOX, the tagged contemporaneous

period will continue to apply after

November 15, 1997. As discussed earlier

in this preamble, the tagged

contemporaneous period will result in

additional incentives for sources to

reduce emissions of NOX than would

otherwise occur in a moving five-year

window. The trend towards lower

emissions in an ozone nonattainment

area should mitigate any affects caused

by not including increases and

decreases of NOX which occurred prior

to November 15, 1992.

For the reasons described above, we

consider the definition of

‘‘contemporaneous period’’ to be

consistent with the Act and proposes to

approve this definition as submitted.

We request comments concerning

Texas’ definition of ‘‘contemporaneous

period.’’

4. Special Modification Rules in

Sections 182(c) (7) and (8) of the Act

a. What does the Act require in

sections 182(c)(7) and (8)? These

sections establish special rules for a

major stationary source located in a

serious or severe ozone nonattainment

area. These sections apply to a major

source which undergoes a physical or

operational change that is not

considered de minimis under section

182(c)(6). These subsections offer

sources options that may be more

desirable than would otherwise apply.

Specifically, sections 182(c)(7) and (8)

allow a major source to internally offset

its proposed increase of VOC or NOX14

at a ratio of 1.3 to 1. Obtaining this

internal offset allows a source to:

• Avoid NSR entirely if the source

emits, or has the potential to emit, less

than 100 tpy of the offset pollutant

under section 182(c)(7), or

• Avoid application of Lowest

Achievable Emission Rate if the source

emits, or has the potential to emit, 100

tpy or more of the offset pollutant under

section 182(c)(8).

A summary of the provisions of

sections 182(c)(7) and (8) is in Table 8

located in paragraph b below. Table 8

also compares Texas regulations with

the Act. 15

b. What SIP revisions did Texas make

to address Sections 182(c)(7) and (8)?

On April 13, 1998, Texas submitted

revisions to Section 116.150 which

implement the special rules in sections

182(c)(7) and (8) of the Act. Section

116.150 provides the following as

shown in Table 8 below:

TABLE 8.—DESCRIPTION OF SPECIAL REQUIREMENTS FOR PERMITTING MODIFICATIONS IN SERIOUS AND SEVERE OZONE

NONATTAINMENT AREAS

Potential to emit Section of Act State regulation Provision of Act Provisions of state rule

Less than 100

TPY of VOC or

NOX.

§ 182(c)(7) ................. § 116.150(a)(3)(A) ..... Project is not a modification subject

to NNSR if source elects to internally offset the same pollutant at

an offset ratio of at least 1.3 to 1

the proposed increase of VOC or

NOX.

NNSR is not required if the project

increases are offset with internal

offsets the same pollutant at a

ratio of at least 1.3 to 1.

§ 116.150(a)(1) .......... Best available control technology

(BACT) is substituted for LAER, if

a source elects not to use internal

offsets.

If a source elects to use internal offsets, it can substitute BACT for

LAER, which is more stringent

than required by the Act.

Greater than or

equal to 100

TPY of VOC or

NOX.

§ 182(c)(8) ................. § 116.150(a)(3)(B) ..... The requirements of LAER otherwise required by section

173(a)(2) of the Act do not apply,

if the source elects to internally

offset the same pollutant at 1.3 to

1 such proposed increase of VOC

or NOXa.

Source can substitute BACT for

LAER, if the project increases are

offsetwith internal offsets of the

same pollutant at a ratio of at

least 1.3 to 1.

§ 116.150(a)(3)(B) ..... A source which elects to avoid

LAER by satisfying the provisions

of section 182(c)(8) may use the

1.3 to 1 internal offset ratio in lieu

of the general offset ratio.

Internal offsets used as described

above can also be applied to satisfy the offset requirement.

a Applies to a proposed increase of VOC or NOX from a any discrete operation, unit, or other pollutant emitting activity at the source.

2570 Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules

16To be creditable, an increase or decrease must

meet the criteria in the definition of ‘‘net emissions

increase’’ in section 116.12. The definition of ‘‘net

emissions increase’’ is discussed in section II.E.3 of

this preamble.

17See section II.C of this preamble for further

discussion on the NOX waivers approve in Texas

under section 182(f) of the Act.

18On November 15, 1990, the CAA Amendments

of 1990 were enacted (Public Law 101–549, 104

Stat. 2399, codified at 42 U.S.C. 7401–7671q). The

ozone nonattainment designation for Victoria

County continued by operation of law according to

section 107(d)(1)(C)(i) of the Act, as amended in

1990. See 56 FR 56694, November 6, 1991. Since

the State had not yet collected the required three

years of ambient air quality data necessary to

petition for redesignation to attainment, the

c. Does Texas’ regulation satisfy

sections 182(c)(7) and (8) of the Act? We

have evaluated the provisions of

sections 116.150(a)(1) and (3)(A) and (B)

which Texas adopted to implement the

requirements of section 182(c)(7) and (8)

of the Act. We have determined that

these provisions of the State’s

regulations implement the special

provisions of the Act only for project

increases which are offset internally at

an offset ratio of 1.3 to 1. These

provisions of section 116.150, described

in paragraph b of this preamble above,

apply to any major source which

internally offsets its proposed project

increase at a ratio of at least 1.3 to 1. The

project increase includes any increase

resulting from any discrete operation,

unit, or other pollutant emitting activity

at the source that is part of the proposed

project. These provisions are consistent

with the Federal interpretation of

section 182(c)(7) and (8) as discussed in

paragraph a, above.

E. Other Revisions Affecting NSR

Permitting in Nonattainment Areas

Texas submitted revisions to its

definitions which apply to its

permitting in nonattainment areas.

Specifically Texas submitted definitions

for:

‘‘de minimis threshold test’’—new

definition

‘‘major modification’’—revised

definition

‘‘net emissions increase’’—revised

definition

‘‘offset ratio’’—new definition

‘‘potential to emit’’—revised definition

‘‘stationary source’’—new definition

The evaluation of these definitions is

discussed below.

1. Definition of ‘‘de minimis threshold

test’’

A new definition of ‘‘de minimis

threshold test’’ in section 116.12

replaces the former definition of ‘‘de

minimis threshold.’’ The former

definition of ‘‘de minimis threshold’’

defined the term as an emissions level,

as determined by aggregating the

proposed increase with all other

creditable increases and decreases 16

during the previous five calendar years,

including the calendar year of the

proposed change which equals the

major modification level for the specific

nonattainment area. Texas now defines

‘‘de minimis threshold test’’ consistent

with the de minimis rule. Section

II.D.1–2 of this preamble contains

further discussion of the de minimis

rule. To summarize, the definition

requires a source to add the proposed

increase with all other creditable

emission increases and decreases during

the contemporaneous period, and

compare the sum with the major

modification column in Table I

(following the definition of ‘‘major

modification’’) for the specific

nonattainment area. A major source

must undergo nonattainment review if

the sum exceeds the major modification

level in Table I.

The procedure described above is the

same as the procedure for determining

‘‘net emissions increase’’ in 40 CFR

51.165(a)(vi). This section of the Federal

rule provides that the net emissions

increase is determined by adding the

increase in actual emissions from a

particular physical change or change in

the method of operation at a stationary

source with all other increases and

decreases in actual emissions at the

source that are contemporaneous with

the particular change and are otherwise

creditable. See 40 CFR

51.165(a)(vi)(A)(1) and (2).

Texas submitted the definition of ‘‘de

minimis threshold test’’ on August 31,

1993, and minor revisions thereto on

April 13, 1998, to clarify that the

definition only applies to

contemporaneous netting in

nonattainment areas. We determine that

the definition of ‘‘de minimis threshold

test’’ is consistent with section 182(c)(6)

of the Act.

2. Definition of ‘‘Major Modification’’

Texas recodified its definition of

‘‘major modification’’ from section 101.1

of its General Rules to section 116.12,

and made several revisions thereto. The

former rule defined the term as any

physical change or change in the

method of operation of a facility/

stationary source which causes a net

increase in its PTE, by the amounts in

Table I, of VOC or any air contaminant

for which a national ambient air quality

standard has been established. The

former definition was inconsistent with

Texas’ definition of ‘‘net emissions

increase’’ in section 116.12 which

requires such increase to be calculated

on an actual emissions basis. It was also

not consistent with the Federal

definitions of ‘‘major modification’’ and

‘‘net emissions increase’’ in 40 CFR

51.165(a)(1)(ii) and (vi), respectively.

The Federal definition bases major

modifications upon a net increase in

actual emissions.

Texas revised its definition of ‘‘major

modification’’ to clarify that a major

modification is based upon a net

emissions increase in actual emissions,

in order to be consistent with its

definition of ‘‘net emission increase’’

and to ensure consistency with the

Federal definition of ‘‘major

modification.’’ Texas also clarified that

a physical change or change in the

method of operation at a source not

qualifying as an existing major

stationary source is subject to

nonattainment permitting only if the

increase by itself equals or exceeds the

emissions specified in the major source

column in Table I.

The definition of ‘‘major

modification’’ also includes Table I,

which specifies the various

classifications of nonattainment along

with the associated emission levels

which designate a major modification

for those areas. On September 27, 1995,

we approved Table I, as submitted

August 31, 1993. See 60 FR 49781. On

July 18, 1996; April 13, 1998; and March

16, 1999; Texas submitted revisions to

Table I to make it consistent with the

section 182(f) NOx waivers that we

approved.17 The July 18, 1996 submittal

revised the Table as follows:

(1) Changed the pollutant designation

for the line for ozone nonattainment

areas from ‘‘VOC/NOX’’ to ‘‘ozone,’’ and

added a new line for NOX, and specified

a the major source threshold, major

modification significance level, and

offset ratio for NOX respectively at ‘‘100

TPY’’, ‘‘40 TPY’’, and ‘‘1.00 to 1.’’

(2) Clarified that the Table only

applies to Texas nonattainment area

designations specified in 40 CFR 81.344,

(3) Clarified that the major

modification threshold applies only to

existing major sources and applicability

of nonattainment area NSR is evaluated

after netting, unless that source chooses

to apply nonattainment NSR directly to

the project,

(4) Clarified that VOC and NOX are

precursors to ozone and are quantified

individually. In counties which have

approved exemptions for NOX under

section 182(f) of the Act, only VOC is

precursor to ozone,

(5) Removed a reference to Victoria

County as county designated as

nonattainment for ozone but not

classified because of incomplete data.18

Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules 2571

nonattainment area was further designated as

nonclassifiable incomplete data for ozone. On July

27, 1994, Texas’s submitted a maintenance plan for

Victoria County and a request to redesignate

Victoria County to attainment. On March 7, 1995,

we approved the maintenance plan and

redesignated Victoria County from ozone

nonattainment to attainment. See 60 FR 12453.

19Texas definition of ‘‘contemporaneous period’’

is in section 116.12(7). We discuss the definition of

‘‘contemporaneous period’’ in section II.D.3 of this

preamble.

(6) Added a provision that NOX

sources granted the temporary

exemption and authorized under section

116.211 of this title (relating to Standard

Exemption List) shall require

registration for increases in NOX over

the major source/major modification

level in Table I.

On April 13, 1998, Texas submitted a

revision to Table 1 to remove the

provision requiring the registration of

NOX sources granted the temporary

exemption and authorized under section

116.211 of this title (relating to Standard

Exemption List). This provision is no

longer necessary with the expiration of

the temporary NOX waivers. On March

16, 1999, Texas submitted further

revisions to Table I consistent with the

reinstatement of NOX as an ozone

precursor in the Dallas-Fort Worth

ozone nonattainment area. The changes

to Table I as submitted April 13, 1998,

and March 16, 1999, are discussed in

section II.C of this preamble.

We have reviewed these changes and

determine that these changes to the

definition of ‘‘major modification’’ and

to Table I are consistent with the Act.

3. Definition of ‘‘Net Emissions

Increase’’

Texas recodified the definition of ‘‘net

emissions increase’’ to section 116.12

and formatted the definition consistent

with the definition in 40 CFR

51.165(a)(1)(vi). Texas continues to

define ‘‘net emissions increase’’ as the

sum of the total increase in actual

emissions from a particular physical

change or change in the method of

operation at a stationary source, plus

any source wide creditable

contemporaneous increases and

decreases minus any source wide

creditable contemporaneous decreases.

In the former definition, Texas

specified that an increase or decrease

was creditable if it occurred within a

reasonable time (to be specified by the

permitting authority) before the date

that the increase from a particular

change occurs. In ozone nonattainment

areas, Texas specified a period of five

consecutive calendar years (including

the calendar year of the proposed

increase plus the four preceding

calendar years) in former section

116.3(a)(7) to determine if a particular

increase in emissions of VOCS or NOX

is subject to nonattainment review. The

provisions for permitting major sources

and modifications in areas designated

nonattainment for criteria pollutants

other than ozone (former section

116.3(a)(10)) did not specify a specific

time frame in which emissions increases

and decreases would be considered to

be contemporaneous with a particular

change.

In the revised definition, Texas

specified that the increase or decrease

must actually occur within the

contemporaneous period, which Texas

has defined separately.19 We consider

the submitted definition of ‘‘net

emissions increase’’ to be consistent

with the requirements in 40 CFR

51.165(1)(vi) and with the Act.

4. Definition of ‘‘Offset Ratio’’

Texas adopted the definition of

‘‘offset ratio’’ to satisfy section

173(a)(1)(A) of the Act. The provisions

of this definition were previously

included in sections 116.3(a)(7)(C) and

116.3(a)(10)(D). In the recodified

regulations, the provisions of sections

116.3(a)(7)(C) and 116.3(a)(10)(D), were

incorporated into a new sections

116.150(a)(3) and 116.151(c),

respectively. In the recodification, Texas

removed specific language which

defined ‘‘offset ratio’’ from sections

116.3(a)(7)(C) and 116.3(a)(10)(D) and

referenced the offset ratios in Table I of

section 116.12 (part of the definition of

‘‘major modification’’). Texas then

added the new definition of ‘‘offset

ratio’’ and defined it as ratio of total

actual reductions of emissions to the

total allowable emissions increases of

such pollutant from the new source. The

definition references the minimum

offset ratios in Table I under the

definition of major modification.

On April 13, 1998, Texas submitted a

revision to the definition of ‘‘offset

ratio’’ and added a sentence which

clarifies that creditable offsets must be

enforceable, permanent, quantifiable

through a replicable methodology, real,

and surplus. The revision further

specified that the reduction must occur

after January 1, 1990, must be

represented in the 1990 and subsequent

emissions inventory, and not relied

upon in issuance of any previous

nonattainment permit or permit issued

under regulations for the prevention of

significant deterioration. This definition

is consistent with section 173(a)(1) of

the Act.

5. Definition of ‘‘Potential to Emit’’

Texas recodified the definition of

‘‘potential to emit’’ from section 101.1 of

its General Rules into section 116.12,

and revised the term to match the

definition as presently defined in 40

CFR 51.165(a)(1)(iii). The definition as

revised does not conflict with the

federal definition or with the Act.

6. Definition of ‘‘Stationary Source’’

Texas adopted a new definition of

‘‘stationary source’’ consistent with the

term as defined in 40 CFR

51.165(a)(1)(i). The submitted definition

does not conflict with the Federal

definition or with the Act.

III. Individual SIP Ssubmittals Acted

Upon in This Document

A. General Discussion

The Governor of Texas submitted

revisions to the Texas SIP to us relating

to the permitting of new and modified

sources in nonattainment areas. We are

proposing to approve revisions

submitted August 31, 1993; November

1, 1995; July 18, 1996; April 13, 1998;

and March 16, 1999. The basis for our

proposed approval is discussed in

section II of this preamble.

B. Summary of Each Individual SIP

Submittal

Table 9 below summarizes each

individual SIP submittal that we are

proposing to approve in today’s action.

TABLE 9. SUMMARY OF EACH INDIVIDUAL SIP SUBMITTAL

Date adopted by state Date submitted to

EPA Description of SIP submittal

August 16, 1993 ......... August 31, 1993 ........ Provisions of submittal relating to permitting under part D of the Act. This includes:

—Section 116.12,

—Section 116.150, and

—116.151, and

—Section 116.170(1) and (3).

2572 Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules

TABLE 9. SUMMARY OF EACH INDIVIDUAL SIP SUBMITTAL—Continued

Date adopted by state Date submitted to

EPA Description of SIP submittal

October 26, 1995 ....... November 1, 1995 .... Revisions to Section 116.150 to address nonattainment permitting requirements for NOX (as an

ozone precursor) in the Dallas-Fort Worth, El Paso, Houston-Galveston, and Beaumont-Port

Arthur ozone nonattainment areas consistent with waivers approved by EPA pursuant to section 182(f) of the Act.

May 15, 1996 ............. July 18, 1996 ............. Revisions to Table I of Section 116.12 to conform to NOX waivers approved by EPA pursuant

to section 182(f) of the Act.

March 18, 1998 .......... April 13, 1998 ............ Revisions to Sections 116.12, Table I of Section 116.12, and 116.150, and 116.151. Texas revised the SIP to reinstate NOX as an ozone precursor in the Houston-Galveston and Beaumont-Port Arthur ozone nonattainment areas.

February 24, 1999 ..... March 16, 1999 ......... Revisions to Chapter 116, which reinstate the requirement to review NOX as an ozone precursor in the Dallas-Fort Worth ozone nonattainment area.

C. EPA Action

For the reasons stated herein, we have

determined that each of the above SIP

submittals or revisions to 30 TAC

Chapter 116 satisfies the requirements

of Title I of the Act. Sections II and III

of this preamble and the TSD for this

proposed action contain detailed

evaluations of each of the sections

submitted by the State of Texas and the

basis for EPA’s proposal to approve of

these sections.

IV. Request for Public Comments

We are requesting comments on all

aspects of the requested SIP revision

and our proposed rulemaking action.

Comments received by date indicated

above will be considered in the

development of EPA’s final rule.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled ‘‘Regulatory Planning and

Review.’’

B. Executive Order 13132

Executive 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999) revokes and replaces Executive

Order 12612, ‘‘Federalism,’’ and

Executive Order 12875, ‘‘Enhancing the

Intergovernmental Partnership.’’

Executive Order 13132 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.’’ Under Executive

Order 13132, EPA may not issue a

regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. The EPA also may not issue

a regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This proposed rule will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, because it

merely approves a State rule

implementing a Federal standard, and

does not alter the relationship or the

distribution of power and

responsibilities established in the Act.

C. Executive Order 13045

Executive Order 13045, entitled

‘‘Protection of Children from

Environmental Health Risks and Safety

Risks’’ (62 FR 19885, April 23, 1997),

applies to any rule that: (1) is

determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

The EPA interprets Executive Order

13045 as applying only to those

regulatory actions that are based on

health or safety risks, such that the

analysis required under section 5–501 of

the Order has the potential to influence

the regulation. This proposed rule is not

subject to Executive Order 13045

because it approves a State program.

D. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the OMB, in

a separately identified section of the

preamble to the rule, a description of

the extent of EPA’s prior consultation

with representatives of affected tribal

governments, a summary of the nature

of their concerns, and a statement

supporting the need to issue the

regulation. In addition, Executive Order

13084 requires EPA to develop an

effective process permitting elected

officials and other representatives of

Indian tribal governments ‘‘to provide

meaningful and timely input in the

development of regulatory policies on

matters that significantly or uniquely

affect their communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. This action

does not involve or impose any

requirements that affect Indian tribes.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Proposed Rules 2573

E. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5

U.S.C. 600 et seq., 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-forprofit enterprises, and small

governmental jurisdictions. This

proposed rule will not have a significant

impact on a substantial number of small

entities because SIP approvals under

section 110 and subchapter I, part D of

the Act do not create any new

requirements but simply approve

requirements that the State is already

imposing. Therefore, because the

Federal SIP approval does not create

any new requirements, I certify that this

action will not have a significant

economic impact on a substantial

number of small entities. Moreover, due

to the nature of the Federal-State

relationship under the Act, preparation

of a flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of state action. The Act

forbids EPA to base its actions

concerning SIPs on such grounds. See

Union Electric Co. v. U.S. EPA, 427 U.S.

246, 255–66 (1976); 42 U.S.C.

7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995, signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated annual costs to

State, local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

The EPA has determined that the

approval action promulgated does not

include a Federal mandate that may

result in estimated annual costs of $100

million or more to either State, local, or

tribal governments in the aggregate, or

to the private sector. This Federal action

approves 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon Monoxide,

Hydrocarbons, Incorporation by

reference, Lead, Nitrogen oxides, Ozone,

Particulate matter, Sulfur oxides,

Volatile organic compounds.

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

Dated: December 16, 1999.

Jerry Clifford,

Acting Regional Administrator, Region 6.

[FR Doc. 00–1081 Filed 1–14–00; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket OST–99–6578]

RIN 2105–AC49

Procedures for Transportation

Workplace Drug and Alcohol Testing

Programs

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of public meetings.

SUMMARY: The U.S. Department of

Transportation (DOT) is scheduling

three public listening sessions on its

notice of proposed rulemaking (NPRM)

to revise the Department’s drug and

alcohol testing procedures, published in

the Federal Register on December 9,

1999 ( 64 FR 69076 ). The meetings are

scheduled approximately 90 days after

the publication of the NPRM to provide

the public time to read and review the

document. The intent of the meetings is

to obtain additional information from

the public that was not submitted in

formal comments to the docket.

DATES AND ADDRESSES: The public

meetings will be held on March 20 and

21, 2000, at the Ronald Reagan Building

and International Trade Center, 1300

Pennsylvania Avenue, NW.,

Washington, DC 20004; on March 28,

2000, at the Hilton Los Angeles Airport,

5711 West Century Boulevard, Los

Angeles, CA 90045, telephone number

(310) 410–4000, fax (310) 410–6177; and

on March 30, 2000, at the Crowne Plaza,

Dallas Market Center, 7050 Stemmons

Freeway, Dallas, TX 75247, telephone

number (214) 630–8500, fax (214) 630–

0037. Meeting facilities may

accommodate only a limited number of

attendees and all participants and

commenters must pre-register to ensure

entry into the meetings. Registration

procedures are specified under

supplemental information below. Other

persons will be accommodated as space

and time permit.

FOR FURTHER INFORMATION CONTACT: For

general meeting information and to

register for one of the meetings, contact

the DOT contractor, Marti Bludworth,

Transportation Safety Institute (TSI),

Special Programs Division, DTI–100,

4400 Will Rogers Parkway, Suite 205,

Oklahoma City, OK 73108–2057,

telephone number (800) 862–4832,

extension 323, fax number (405) 946–

4268, or e-mail

martilbludworth@tsi.jccbi.gov.

SUPPLEMENTARY INFORMATION:

A. Purpose

The purpose of the meetings is to

provide all segments of the

transportation industry and the general

public with an opportunity to make

statements, which have not already been

made previously, to the docket. These

meetings would also give DOT the

opportunity to ask questions and ensure

that the public comments are clearly

understood by the Department. It may

also give the Department the

opportunity to clarify issues related to

comments that had already been

submitted to the docket during the early

days of the formal comment period.

Questions by commenters and other

attendees to the DOT will be permitted

as time allows.

B. Procedural Matters

The meeting in Washington, DC will

be held for a day and a half to provide

ample opportunity for attendees to make

comments and for DOT to have

additional time, if needed, to ask follow

up questions. This geographic location

will also provide added opportunity for

additional DOT staff and industry

representatives from the Capital area to

attend the meeting. All facilities will be

ADA accessible. The Department will

provide sign-language interpreters, if

requested. Attendees needing this

accommodation should notify TSI no

later than February 28, 2000. If no

requests are received, this service may

not be available.

Because these are listening sessions,

DOT will not offer space for vendors or

exhibitors to display their products.

All meetings will have limited, firstcome-first-served capacity due to

physical constraints of the facilities.

‘‘First come’’ will be based on the date

that the registration information is

received by TSI. Once the capacity of

the meeting room is reached, DOT will

not be able to ensure entry to

subsequent applicants. TSI will confirm