[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Rules and Regulations]
[Pages 50205-50208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16933]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2005-TX-0022; FRL-7959-5]


Limited Approval and Promulgation of Implementation Plans; Texas; 
Excess Emissions During Startup, Shutdown and Malfunction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action finalizes limited approval of revisions to the 
Texas State Implementation Plan (SIP) concerning excess emissions which 
we proposed, through the parallel processing mechanism, on May 9, 2005. 
Specifically, we are finalizing limited approval of revisions to 30 TAC 
Chapter 101, General Air Quality Rules concerning excess emissions 
during startup, shutdown, and malfunction (SSM) activities. The action 
will have the effect of extending the expiration date of certain 
provisions from June 30, 2005 to no later than June 30, 2006. Texas has 
made this change to allow for additional time before these provisions 
expire from the SIP to submit a revised excess emissions rule for our 
approval into the SIP.

DATES: This rule is effective on September 26, 2005.

ADDRESSES: Copies of the 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 Commission on Environmental Quality (TCEQ), Office of Air 
Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar of the Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733 at (214) 665-6691, <a href="/cdn-cgi/l/email-protection#b8cbd0d9ca96d9d4d9d6f8ddc8d996dfd7ce"><span class="__cf_email__" data-cfemail="5b28333a29753a373a351b3e2b3a753c342d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background Information
    1. What actions are we taking in this document?
    2. What documents did we use in the evaluation of this rule?
    3. Who submitted comments to us?
    4. What is our response to the submitted written comments?
    5. What areas in Texas will these rule revisions affect?
II. Final Action
III. Statutory and Executive Order Reviews

    In this document ``we,'' ``us,'' and ``our'' refer to EPA.

I. Background Information

1. What Actions Are We Taking in This Document?

    On May 9, 2005 (70 FR 24348) we proposed limited approval of 
revisions to the Texas SIP pertaining to excess emissions during SSM 
activities. See 30 TAC, General Air Quality Rule 101, subchapter F, 
sections 101.221, 101.222, and 101.223. The currently approved Texas 
SIP provides that these three provisions of the State rules, that 
address excess emissions resulting from SSM related activities, will 
expire by their own terms on June 30, 2005. In granting a limited 
approval of those provisions of the State rule EPA interpreted those 
provisions to mean the subsections would expire from the approved SIP 
on that date (June 30, 2005).
    Our May 9, 2005 (70 FR 24348) proposal addressed changes to each of 
these three provisions which would extend the expiration date to as 
late as June 30, 2006. Specifically, the State revised each of the 
three subsections to provide:

    ``This section expires on January 15, 2006, unless the 
commission submits a revised version of this section to the 
Environmental Protection Agency (EPA) for review and approval into 
the Texas state implementation plan. If the commission submits a 
revised version of this section, this section expires on June 30, 
2006.''

    See 30 TAC, General Air Quality Rule 101, Subchapter F, subsections 
101.221(g), 101.222(h), and 101.223(e).
    Today, we are taking final action on the May 9, 2005 (70 FR 24348) 
proposal. Because we proposed to approve these revisions prior to the 
time the State completed its state rulemaking process, we compared the 
final version of the adopted State submission with the submission on 
which the proposed rulemaking was based. The comparison reveals no 
changes in the State's final submission. The change we are approving 
today will, in effect, extend the expiration date of the affected 
sections from June 30, 2005 to January 15, 2006, unless the State 
submits a replacement rule to EPA, which would have the effect of 
extending the expiration date in the SIP to June 30, 2006.
    The EPA believes it is important to reiterate our interpretation of 
the phrase in the State's rule, ``submits a revised version of this 
section.'' If we receive a SIP submission of a state-adopted revised 
version of the specified sections prior to January 15, 2006, we will 
review the submission for completeness in accordance with our 
completeness regulations. See 40 CFR Part 51, Appendix V. If the State 
fails to submit an adopted rule by January 15, 2006, or submits a SIP 
that we determine is incomplete, the existing regulations will expire 
from the SIP effective January 15, 2006. If we find the submission 
complete, then the rule will expire from the SIP on June 30, 2006, or 
at an earlier date if so provided by a replacement rule that we approve 
into the Texas SIP prior to June 30, 2006.
    The EPA intends to work with the State during the State's 
rulemaking process to identify any issues that would prevent our full 
approval of the replacement rule. Although we cannot prejudge our 
ultimate decision on a future SIP submission prior to our review of 
such revisions and our consideration of any public comments in response 
to our proposed action on such submission, we will attempt to identify 
any issues that would prevent our full approval of the replacement rule 
during the State's rulemaking process and any preliminary discussions 
we may have with the State.
    We are granting limited, rather than full, approval of this SIP 
submittal. We are granting limited approval of this rule because we 
granted limited approval of the regulations which are modified by this 
revision. Although this action will extend the expiration date of 
sections 101.221, 101.222, and 101.223, the basis for our limited 
approval of the State's excess emissions rules remains unchanged as 
explained in our March 30, 2005 (70 FR 16129) rulemaking action.

2. What Documents Did We Use in the Evaluation of This Rule?

    The EPA's interpretation of the Act on excess emissions occurring 
during SSM is set forth in the following documents: a memorandum dated 
September 28, 1982, from Kathleen M. Bennett, Assistant Administrator 
for Air, Noise, and Radiation, entitled ``Policy on Excess Emissions 
During Startup, Shutdown, Maintenance, and Malfunctions;'' EPA's 
clarification to the above policy memorandum dated February 15, 1983, 
from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and 
Radiation; EPA's policy

[[Page 50206]]

memorandum reaffirming and supplementing the above policy, dated 
September 20, 1999, from Steven A. Herman, Assistant Administrator for 
Enforcement and Compliance Assurance and Robert Perciasepe, Assistant 
Administrator for Air and Radiation, entitled ``State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, 
and Shutdown'' (September 1999 Policy); EPA's final rule for Utah's 
sulfur dioxide control strategy (Kennecott Copper), 42 FR 21472 (April 
27, 1977), and EPA's final rule for Idaho's sulfur dioxide control 
strategy, 42 FR 58171 (November 8, 1977); and the latest clarification 
of EPA's policy issued on December 5, 2001. See the policy or 
clarification of policy at: http://www.epa.gov/ttn/oarpg/t1pgm.html.
    To find the latest Federally approved Texas SIP concerning excess 
emissions see 70 FR 16129 (March 30, 2005).

3. Who Submitted Comments to Us?

    We received written comments on our May 9, 2005 (70 FR 24348) 
proposed limited approval of the Texas SIP revision. The comments were 
submitted by the Environmental Integrity Project, Galveston-Houston 
Association for Smog Prevention, Sierra Club Lone Star Chapter, Blue 
Skies Alliance, Downwinders at Risk, Community In-Power and Development 
Association, Public Citizen's Texas Office, and Texas Public Interest 
Research Group (the Commenters) during the public comment period.

4. What Is Our Response to the Submitted Written Comments?

    Our responses to the written comments concerning the proposed May 
9, 2005 (70 FR 24348), Texas SIP revision are as follows:
    Comment #1: The Commenters agree that we should grant a limited 
approval of the extended expiration date in subsections 101.221(g) and 
101.223(e), but claim that for the following reasons (see Comments 
<greek-i>2, 3, and 4) we should disapprove the extension of the 
expiration date in subsection 101.222(h).
    Response to Comment #1: We appreciate the Commenters' support of 
limited approval of subsections 101.221(g) and 101.223(e). See our 
responses to Comments <greek-i>2, 3, and 4 of this document concerning 
subsection 101.222(h).

    Comment #2: The Commenters state that an affirmative defense cannot 
apply to emissions exceedances of the Federally promulgated 
performance-based or technology driven standards such as New Source 
Performance Standards (NSPS), and National Emissions Standards for 
Hazardous Air Pollutants (NESHAP). While EPA's interpretation of Texas' 
rules is clear from EPA's statements in the final limited approval (70 
FR at 16132), EPA should not approve a revision to the Texas rules 
unless Texas clarifies on the face of the rule that any affirmative 
defense does not apply to Federally promulgated performance-based or 
technology driven standards or other Federal requirements.
    Response to Comment #2: We agree that in order to receive a full 
approval of the rule, Texas needs to revise the rule to make clear that 
the affirmative defense is not available for violations of Federally 
promulgated performance-based or technology driven standards such as 
NSPS and NESHAP. In this action, we are only considering a brief 
extension of the existing rule for which we issued a limited approval 
on March 30, 2005. Because the extension of the expiration date is 
brief, we do not believe the underlying flaws in the rule mandate a 
disapproval of the extension and that it is appropriate to grant a 
limited approval of the revised expiration date. However, we note that 
EPA will not approve any further extensions of the expiration date in 
the absence of the State correcting the defects in the current rule. 
See section 1 of our May 9, 2005 (70 FR 24349).

    Comment #3: The Commenters state that subsection 101.222(c) exempts 
excess emissions during scheduled maintenance, startup, and shutdown 
from permitting requirements, if certain criteria are met, and conclude 
that such exemptions could jeopardize SIP's ability to attain and 
maintain compliance with the SIP. In addition, the commenters note that 
EPA's SSM guidance makes clear that scheduled maintenance, startup and 
shutdown activities should be accounted for in the plan and design, and 
an affirmative defense should not be available. The Commenters state 
that because subsections 101.222(c) and (e) violate the Act and EPA's 
guidance, EPA cannot approve an extension of the expiration date for 
these provisions.
    Response to Comment #3: We agree with many of the points raised by 
the Commenters regarding the underlying flaws with subsections 
101.222(c) and (e), and those flaws were the basis for our limited, 
rather than full approval of the State's excess emissions rules. See 
section 3 of our March 30, 2005 (70 FR 16130-16131).
    However, we do not think the brief extension of the expiration date 
at issue here will have a significant effect and that it is appropriate 
to grant a limited approval of the revised expiration provision. As 
noted above, however, we will not grant any further extensions of the 
expiration date in the absence of a submitted SIP revision correcting 
the defects in the rule. See section 1 of our May 9, 2005 (70 FR 
24349).

    Comment #4: The Commenters state that because subsections 
101.222(b) and (d) limit the ability of citizen and EPA enforcement, 
EPA cannot approve the extension of the expiration date for these 
provisions under section 101.222(h).
    Response to Comment #4: In part, we based our rationale for a 
limited, rather than a full, approval of Texas SSM rule on concerns 
similar to those expressed by the Commenters. See our explanation at 70 
FR 16130. As provided above, however, we do not believe these flaws 
with the rule for which we granted a limited approval mandate that we 
disapprove the brief extension of the expiration date.
    This concludes our responses to the written comments we received 
during public comment period concerning May 9, 2005 (70 FR 24348), 
Texas proposed SIP revision.

5. What Areas in Texas Will These Rule Revisions Affect?

    These rule revisions affect all sources of air emissions operating 
within the State of Texas that are subject to emission reduction 
requirements under the State's SIP approved regulations.

II. Final Action

    Today, we are finalizing limited approval of the deletion of 
existing SIP subsections 101.221(g), 101.222(h), and 101.223(e) and the 
addition of revised subsections 101.221(g), 101.222(h), and 101.223(e) 
into the Texas SIP. We published the proposal for this limited approval 
on May 9, 2005 (70 FR 24348).

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule

[[Page 50207]]

will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Because this rule approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. The EPA will submit a report containing 
this rule and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication of the rule in the Federal Register. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 25, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Excess emissions, 
Intergovernmental relations, Reporting and recordkeeping requirements, 
Volatile organic compounds.

    Dated: August 10, 2005.
Lawrence Starfield,
Acting Regional Administrator, Region 6.

0
40 CFR part 52 is amended:

PART 52--[AMENDED]

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

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

Subpart SS--Texas

0
2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended by revising the entries for sections 
101.221, 101.222, and 101.223 to read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                            State,
                                                          approval/,
          State citation               Title/subject      submittal,    EPA approval date        Explanation
                                                             date
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                                                 * * * * * * *
                                     Chapter 101--General Air Quality Rules
----------------------------------------------------------------------------------------------------------------
 
                                                 * * * * * * *
           Subchapter F--Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 101.221..................  Operational               06/03/05  08/26/05, [Insert    With Expiration
                                    Requirements.                       FR citation from     Date.
                                                                        published date].
Section 101.222..................  Demonstrations......      06/03/05  08/26/05, [Insert    With Expiration
                                                                        FR citation from     Date.
                                                                        published date].
Section 101.223..................  Actions to Reduce         06/03/05  08/26/05, [Insert    With Expiration
                                    Excessive Emissions.                FR citation from     Date.
                                                                        published date].
 
                                                  * * * * * * *
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[FR Doc. 05-16933 Filed 8-25-05; 8:45 am]
BILLING CODE 6560-50-P


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