00-30107. Approval and Promulgation of Implementation Plans; Texas; Excess Emissions During Startup, Shutdown, Malfunction and Maintenance

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is taking direct final action on revisions to the Texas State Implementation Plan (SIP). These revisions concern 30 TAC, Chapter 101, General Air Quality Rules, General Rules, specifically, the reporting and recordkeeping requirements for excess emissions resulting from Startup, Shutdown, Malfunction, and Maintenance (SSM) episodes. The EPA is approving these revisions to regulate excess emissions in accordance with the requirements of the Federal Clean Air Act (the Act) and EPA's policy on excess emissions.

DATES:

This rule is effective on January 29, 2001 without further notice, unless EPA receives adverse comment by December 28, 2000. If EPA receives such comment, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES:

Written comments on this action should be addressed to Mr. Thomas H. Diggs, Chief, Air Planning Section (6PD-L), 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:

Mr. Alan Shar, P.E., Air Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What action is EPA taking?

2. Where can I find EPA policies on excess emission during SSM?

3. Is there a difference between EPA's old policy on excess emission and the new policy?

4. What does the new policy say?

5. What does the current Texas approved SIP rule say about excess emission during SSM?

6. What are advantages of the new Texas rule revision?

7. What is a Reportable Quantity?

8. What does a source do if its excess emission during SSM is less than RQ?

9. Who has to report an excess emission during SSM?

10. Do minor sources have to report excess emission during SSM?

11. What areas in Texas will this rule affect?

12. What is a State Implementation Plan?

13. What is the Federal approval process for a SIP?

14. What does Federal approval of a SIP mean to me?

Throughout this document “we,” “us,” and “our” means EPA.

1. What Action Is EPA Taking?

On July 31, 2000, George W. Bush, the Governor of Texas submitted the Texas 30 TAC Chapter 101, General Air Quality Rules, General Rules, as a revision to the existing Texas SIP. Texas specifically submitted revisions to sections 101.01 concerning Definitions; 101.06 concerning Upset Reporting and Recordkeeping Requirements; 101.07 concerning Maintenance, Startup and Shutdown Reporting, Recordkeeping and Operational Requirements; and 101.11 concerning Demonstrations.

In this document, we are approving these revisions to the Texas SIP. For more information on the SIP revision and our evaluation, please refer to our Technical Support Document (TSD) dated October 2000.

2. Where Can I Find EPA Policies on Excess Emission During SSM?

You can find our policies on excess emissions during SSM in the following documents: (1) Memoranda from Kathleen Bennett, formerly Assistant Administrator for Air, Noise and Radiation dated September 28, 1982, and February 15, 1983 (the Bennett Memo—old policy), and (2) Memorandum from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, dated September 20, 1999 (the Herman Memo—new policy). The Herman Memo supplements the Bennett Memo. Our TSD dated October 2000, contains both of these documents.

3. Is There a Difference Between EPA's Old Policy on Excess Emission and the New Policy?

No, there is not a significant difference between EPA's old policy and the new policy on excess emission. The new policy on excess emission during SSM episodes supplements and reaffirms the old policy. As in the old policy, we reiterate that, under the Act, all excess emissions during SSM episodes are violations of applicable emission limitations. However, we believe it would be inequitable to penalize a source for occurrences beyond the company's control. A source has the burden of proving that the excess emissions were due to circumstances entirely beyond the control of the operator or the owner.

For a review of the Herman Memo and Bennett Memo, please refer to our TSD dated October, 2000.

4. What Does the New Policy Say?

The new policy discusses our intent to generally treat excess emissions of lead and sulfur dioxide differently from those of other pollutants. See pages 1 and 2 of the attachment to the Herman Memo. The new policy specifies a list of objective criteria that a source with excess emissions should meet in order for the source to avoid potential enforcement action. See pages 3, and 4 of the attachment to the Herman Memo. The new policy also contains suggestions for creating source category specific rules concerning excess emission during startup and shutdown that will comply with the Act. See pages 5 and 6 of Attachment to the Herman Memo.

5. What Does the Current Texas Approved SIP Rule Say About Excess Emission During SSM?

We approved the current SIP rule, for Texas, on excess emissions during SSM episodes in the Federal Register (37 FR 10895) dated May 31, 1972. Since that time, Texas has adopted revisions to its rule on excess emissions, but those revisions have never been approved in the SIP. Section 101.06 of the approved SIP rule says that, a source must report its “major” upset condition with excessive emissions to the local air pollution control agency or the Executive Director. However, the approved SIP rule did not specify what constituted a “major” upset condition.

6. What Are Advantages of the New Texas Rule Revision?

The revisions to Chapter 101, General Air Quality Rules, General Rules will have the following advantages by: (1) Streamlining paper work and resources, (2) assisting enforcement in focusing on major and more frequent upsets, (3) making reporting criteria more consistent among various media (air and hazardous waste programs), and (4) adopting the burden of proof criteria similar to those listed in the Herman Memo of September 20, 1999.

7. What Is a Reportable Quantity?

Reportable Quantity (RQ) is a threshold limit below which a source does not have to report its excess emission to the TNRCC. In this rule when a source exceeds an emission limitation by so many pounds of an individual air contaminant or so many pounds of mixtures of air contaminants, the source will have to report its excess emissions to the TNRCC. We have adopted and used the RQ concept in the 40 CFR parts 355 and 370 (63 FR 31267, dated June 8, 1998), Emergency Planning and Community Right-To-Know Act (EPCRA), and in the Table 302.4 of 40 CFR Chapter 1 (July 1, 1997 Edition), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), in the past. Therefore, use of RQ as a gauge or baseline default value for reporting emissions or discharges is not a new regulatory idea.

8. What Does a Source Do If Its Excess Emission During SSM Is Less Than RQ?

If excess emission during an SSM episode is less than RQ, the source does not have to report that particular excess emission to the TNRCC. The source that experiences an excess emission less than RQ will still have to maintain information about such excess emissions and make the information available to the State and EPA during inspections or upon request.

9. Who Has To Report an Excess Emission During SSM?

All sources that experience an excess emission equal to or greater than RQ, during an SSM episode, need to report their excess emissions. This rule does not exempt a small source from reporting its excess emission during an SSM episode, if the excess emission equals or exceeds the RQ limit.

10. Do Minor Sources Have To Report Their Excess Emission During SSM?

Yes, minor sources have to report their excess emission during an SSM episode. Synthetic minor sources have to report their excess emission during SSM episodes, too. Reporting excess emissions has to do with the amount of RQ, and has nothing to do with the size (minor, synthetic minor, or major) of a facility or the source category/type of facility.

11. What Is a State Implementation Plan?

Section 110 of the Act requires States to develop air pollution regulations and control strategies to ensure that State air quality meets the NAAQS that EPA has established. Under section 109 of the Act, EPA established the NAAQS to protect public health. The NAAQS address six criteria pollutants. These criteria pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each State must submit these regulations and control strategies to us for approval and incorporation into the federally enforceable SIP. Each State has a SIP designed to protect air quality. These SIPs can be extensive, containing State regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

12. What Is the Federal Approval Process for a SIP?

When a State wants to incorporate its regulations into the federally enforceable SIP, the State must formally adopt the regulations and control strategies consistent with State and Federal requirements. This process includes a public notice, a public hearing, a public comment period, and a formal adoption by a state-authorized rule making body.

Once a State adopts a rule, regulation, or control strategy, the State may submit the adopted provisions to us and request that we include these provisions in the federally enforceable SIP. We must then decide on an appropriate Federal action, provide public notice on this action, and seek additional public comment regarding this action. If we receive adverse comments, we must address them prior to a final action.

Under section 110 of the Act, when we approve all State regulations and supporting information, those State regulations and supporting information become a part of the federally approved SIP. You can find records of these SIP actions in the Code of Federal Regulations at Title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual State regulations that we approved are not reproduced in their entirety in the CFR but are “incorporated by reference,” which means that we have approved a given State regulation with a specific effective date.

13. What Does Federal Approval of a SIP Mean to Me?

A State may enforce State regulations before and after we incorporate those regulations into a federally approved SIP. After we incorporate those regulations into a federally approved SIP, both EPA and the public may also take enforcement action against violators of these regulations.

14. What Areas in Texas Will These Rules Affect?

These rule revisions will affect the entire State of Texas and is not specific to a certain area or part of the State. If you are in Texas, you need to refer to these rules to find out if and how these rules will affect you.

Final Action

The EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are received. This rule will be effective on January 29, 2001 without further notice unless we receive adverse comment by December 28, 2000. If EPA receives adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Regional Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this proposed rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). 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 (64 FR 43255, August 10, 1999), 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 Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (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. The proposed rule does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed 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.).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Reporting and recordkeeping requirements

Dated: November 15, 2000.

Jerry Clifford,

Acting Regional Administrator, Region 6.

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart SS—Texas

2. In § 52.2270 the table in paragraph (c) is amended under Chapter 101 by:

a. Revising the heading immediately above the entry for section 101.1 to read “Chapter 101—General Air Quality Rules, Subchapter A—General Rules.”

b. Revising the entries for sections 101.1, 101.6, 101.7, and 101.11.

The revisions read as follows:

§ 52.2270

Identification of plan.

* * * * *

(c) * * *

EPA Approved Regulations in the Texas SIP

State citation	Title/Subject	State adoption date	EPA citation date	Explanation
Chapter 101—General Air Quality Rules
Subchapter A—General Rules
Section 101.1	Definitions	06/29/2000	11/28/00 65 FR 70794	Reportable Quantity and Reportable Upset only.
*         *         *         *         *         *         *
Section 101.6	Upset reporting and recordkeeping requirements	06/29/2000	11/28/00 65 FR 70794
Section 101.7	Maintenance, startup and shutdown reporting, recordkeeping and operational requirements	06/29/2000	11/28/00 65 FR 70794
*         *         *         *         *         *         *
Section 101.11	Demonstrations	06/29/2000	11/28/00 65 FR 70794
*         *         *         *         *         *         *