Limited Approval and Promulgation of Implementation Plans; Texas; Excess Emissions During Startup, Shutdown and Malfunction Activities, 16129-16134 [05-6313]

Download as PDF 16129 Federal Register / Vol. 70, No. 60 / Wednesday, March 30, 2005 / Rules and Regulations 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 CAA. 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 CAA. 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. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this 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. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 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).) Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: March 21, 2005 James B. Gulliford, Regional Administrator, Region 7. Chapter I, title 40 of the Code of Federal Regulations is amended as follows: I PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: I Authority: 42 U.S.C. 7401 et seq. Subpart Q—Iowa 2. In § 52.820 the table in paragraph (c) is amended by revising the entry for ‘‘Chapter V’’ under the heading ‘‘Polk County’’ to read as follows: I § 52.820 List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, * Identification of plan. * * (c) * * * * * EPA–APPROVED IOWA REGULATIONS Iowa citation State effective date Title EPA approval date Explanation Iowa Department of Natural Resources, Environmental Protection Commission [567] * * CHAPTER V. .......... * * * * * * Polk County Polk County Board of Health Rules and Regulations Air Pollution Chapter V. * ACTION: 1/6/2004 * March 30, 2005 [insert FR page number where the document begins]. Final rule. ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [TX–162–1–7598; FRL–7892–7] Limited Approval and Promulgation of Implementation Plans; Texas; Excess Emissions During Startup, Shutdown and Malfunction Activities Environmental Protection Agency (EPA). AGENCY: VerDate jul<14>2003 16:21 Mar 29, 2005 Jkt 205001 * Article I, Section 5–2, definition of ‘‘variance’’; Article VI, Sections 5– 16(n), (o) and (p); Article VIII, Article IX, Sections 5–27(3) and (4); Article XIII, and Article XVI, Section 5–75 (b) are not a part of the SIP. DATES: This rule is effective on April 29, 2005. [FR Doc. 05–6291 Filed 3–29–05; 8:45 am] BILLING CODE 6560–50–P * SUMMARY: This action finalizes limited approval of revisions to the Texas State Implementation Plan (SIP) concerning excess emissions for which we proposed approval on March 2, 2004. The revisions address reporting, recordkeeping, and enforcement actions for excess emissions during startup, shutdown, and malfunction (SSM) activities. This limited approval action is being taken under section 110 of the Federal Clean Air Act (the Act) to further air quality improvement by strengthening the SIP. See sections 1 and 3 of this document for more information. PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 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. ADDRESSES: E:\FR\FM\30MRR1.SGM 30MRR1 16130 Federal Register / Vol. 70, No. 60 / Wednesday, March 30, 2005 / Rules and Regulations Mr. Alan Shar of the Air Planning Section (6PD–L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202–2733 at (214) 665–6691, shar.alan@epa.gov. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: Table of Contents 1. What Actions Are We Taking in This Document? 2. What Documents Did We Use in the Evaluation of This Rule? 3. What Is the Basis for a Limited Rather Than a Full Approval? 4. Who Submitted Comments to Us? 5. What Is Our Response to the Submitted Written Comments? 6. What Areas in Texas Will These Rule Revisions Affect? Statutory and Executive Order Reviews In this document ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. 1. What Actions Are We Taking in This Document? On March 2, 2004 (69 FR 9776), we proposed approval of revisions and deletions to the Texas SIP pertaining to Texas’ excess emissions rule, 30 TAC, General Air Quality Rule 101, Subchapter A, and Subchapter F (September 12, 2002, and January 5, 2004, submittals). Specifically, the revisions address the reporting and recordkeeping, and enforcement actions for excess emissions during SSM activities. The September 12, 2002, and January 5, 2004, submittals primarily address violations of SIP requirements caused by periods of excess emissions due to SSM activities. See section 1 of our March 2, 2004 (69 FR 9776), proposal for additional information. Generally, since SIPs must provide for attainment and maintenance of the National Ambient Air Quality Standards (NAAQS), all periods of emissions in excess of applicable SIP limitations must be considered violations. The EPA cannot approve a SIP revision that provides an automatic exemption for periods of excess emissions violating a SIP requirement. In addition, excess emissions above applicable emission limitations in title V operating permits are deviations subject to title V reporting requirements. Today, we are finalizing limited approval of the September 12, 2002, and January 5, 2004, revisions and deletions to the Texas SIP. The submitted revisions strengthen the SIP because they clarify that sources are not exempt from underlying SIP emissions limits where there is an emissions activity. Rather, the source may assert an affirmative defense in an action for penalties concerning the emission activity. The revisions also provide: (a) VerDate jul<14>2003 16:21 Mar 29, 2005 Jkt 205001 The commission may issue an order finding that a site has chronic ‘‘excessive’’ malfunctions, (b) if the executive director determines that a facility is having ‘‘excessive’’ malfunctions, the owner or operator must take action to reduce the excess emissions activities and obtain either a corrective action plan or a permit reflecting the control device, other measures, or operational changes required for the said reduction, and (c) the affirmative defense approach for malfunctions does not apply if there is a malfunction at a source under a corrective action plan. This limited approval will strengthen the latest federally approved Texas SIP dated November 28, 2000 (65 FR 70792). As authorized by section 110(k)(3) of the Act, we are taking final action to grant a limited, rather than full, approval of this rule. We are finalizing this limited approval because we have determined that the rule improves the SIP and is largely consistent with the relevant requirements of the Act. The submittal, as a whole, strengthens the existing Texas SIP. For example, the revised affirmative defense provisions are an improvement over the related provisions in the current SIP, which are removed from the SIP by this action. This limited approval incorporates all of the submitted revisions into the Texas SIP. The entire rule becomes part of the State’s approved, federally enforceable SIP and may be enforced by EPA and citizens, as well as by the State. We are finalizing a limited approval of this rule after review of adverse comments in response to our proposed approval of the rule, and in order to ensure national SIP consistency with EPA’s interpretation of the Act and policy on excess emissions during SSM activities. Sections 101.221, 101.222, and 101.223 will sunset from State law, and therefore from the SIP, by their own terms, on June 30, 2005 without further action by EPA. Upon expiration of the provisions, all emissions in excess of applicable emission limitations during SSM activities remain violations of the Texas SIP, subject to enforcement actions by the State, EPA or citizens. 2. What Documents Did We Use in the Evaluation of This Rule? The EPA’s interpretation of the Act on excess emissions occurring during startup, shutdown or malfunction 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 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 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 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: https:// www.epa.gov/ttn/oarpg/t1pgm.html. To find the latest federally approved Texas SIP concerning excess emissions see 65 FR 70792 (November 28, 2000). 3. What Is the Basis for a Limited Rather Than a Full Approval? Section 101.222(c) addresses excess emissions from scheduled maintenance, startup, or shutdown activities, and section 101.222(e) addresses excess emissions from scheduled maintenance, startup, or shutdown activity from opacity activities. After reviewing the public comments, we believe that these provisions are ambiguous, at best, and inconsistent with the Act, at worst, and could create problems with enforcing the underlying applicable emission limits. Texas has taken the position that these provisions provide for enforcement discretion by the State. In other words, if the enumerated criteria are met, then the State may exercise its enforcement discretion by choosing not to enforce against periods of excess emissions during scheduled maintenance, startup or shutdown. However, these provisions facially appear to go much further and excuse sources from permitting requirements (101.222(c)) or from the applicable opacity emission limits (101.222(e)) if the criteria are met. Thus, these rules appear to exempt sources from certain applicable SIP requirements. This is inconsistent with the statutory definition of emission limitation. And, if unaccounted for in the SIP, these emissions could interfere, among other things, with the ability of areas within the State to attain and maintain the NAAQS. In addition, to the extent these E:\FR\FM\30MRR1.SGM 30MRR1 Federal Register / Vol. 70, No. 60 / Wednesday, March 30, 2005 / Rules and Regulations provisions create an exemption from compliance, rather than simply explain when the State will exercise enforcement discretion, they would prevent EPA or citizen enforcement. Moreover, it is unclear whether sections 101.222(c) and (e) may provide for an affirmative defense for certain scheduled maintenance activities. In guidance documents issued by EPA and other final rulemakings, we have indicated that scheduled maintenance activities are predictable events that are subject to planning to minimize releases, unlike malfunctions (emission activities), which are sudden, unavoidable or beyond the control of the owner or operator. The EPA’s interpretation of Section 110 of the Act and related policies allows an affirmative defense to be asserted against civil penalties in an enforcement action for excess emissions activities which are sudden, unavoidable or caused by circumstances beyond the control of the owner or operator and where emissions control systems may not be consistently effective during startup or shutdown periods. However, EPA has determined that it is inappropriate to provide an affirmative defense for excess emissions resulting from scheduled maintenance, and to excuse these excess emissions from a penalty action. The State may, however, choose to exercise its enforcement discretion for excess emissions due to predictable events such as scheduled maintenance activities. See 42 FR 21472 (April 27, 1977), 42 FR 58171 (November 8, 1977), and 65 FR 51412 (August 23, 2000). We are today granting a limited approval of the submitted revisions and deletions to the Texas SIP. We cannot fully approve the rule because sections 101.222(c) and (e): (1) Are ambiguous and unclear as to whether they address only State enforcement discretion, (2) might be interpreted to provide exemptions to SIP permitting requirements, and (3) might be interpreted to provide an affirmative defense for excess emissions from scheduled maintenance activities. Because the provisions found in sections 101.222(c) and (e) are not mandatory requirements of the Act and because section 101.222 will expire from the SIP by its own terms on June 30, 2005, no further action by Texas to correct the rule is necessary. Upon expiration of the provisions, all emissions in excess of applicable emission limitations during SSM activities remain violations of the Texas SIP, subject to enforcement action by the State, EPA or citizens. However, if Texas revises its rules to include an VerDate jul<14>2003 16:21 Mar 29, 2005 Jkt 205001 affirmative defense for excess emissions in the Texas SIP in the future, the State should ensure that the revisions do not contain exemptions from permitting or other SIP requirements, that the affirmative defense does not apply to excess emissions from scheduled maintenance activities, and, if the State wishes to codify its enforcement discretion, that terms are clear and do not bar or limit enforcement actions taken by EPA or citizens for excess emissions which exceed applicable SIP emission limitations. Any revisions should continue to recognize that emissions in excess of applicable emission limitations and SIP requirements are violations of the Texas SIP, subject to enforcement actions by the State, EPA or citizens. If the State submits a revised rule addressing excess emissions during SSM activities, EPA will review the rule for consistency with the requirements of the Act and EPA policy. Below, we summarize and respond to comments received during the public comment period on the proposed March 2, 2004 (69 FR 9776), Texas SIP revision. 4. Who Submitted Comments to Us? We received one set of written comment on the March 2, 2004 (69 FR 9776), proposed Texas SIP revision. The comment was submitted jointly by the Environmental Integrity Project, Environmental Defense, GalvestonHouston Association for Smog Prevention, Refinery Reform, Community InPower and Development Association, Citizens for Environmental Justice, and Public Citizen’s Texas Office (the Commenters). 5. What Is Our Response to the Submitted Written Comments? Our responses to the written comments concerning the proposed March 2, 2004 (69 FR 9776), Texas SIP revision are as follows: Comment #1: The Commenters state that Texas’ rule is an improvement over its previous illegal exemption provisions; however, the rule still creates an affirmative defense which is too broad. Response to Comment #1: We appreciate the Commenters’ statement that the Texas excess emissions rule approved today into the Texas SIP is an improvement over its previous version, which is removed from the SIP by this action. The criteria and conditions constituting the affirmative defense approach, as incorporated in the rule, are those identified in EPA’s 1999 policy on excess emissions. This improvement, in part, constitutes our rationale for a limited approval of this PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 16131 Texas SIP revision. However, we agree with Commenters that the affirmative defense may be too broad because, as discussed above, it appears to be available for certain maintenance activities. The EPA’s interpretation of Section 110 of the Act and related policies allow an affirmative defense to be asserted against civil penalties in an enforcement action for excess emissions activities which are sudden, unavoidable or beyond the control of the owner or operator and where emissions controls may not be consistently effective during startup or shutdown periods. The State may choose to exercise its enforcement discretion for excess emissions from predictable events such as scheduled maintenance activities. Comment #2: The Commenters state that EPA should disapprove sections 101.222(c) and (e) of Texas’ submittal because these provisions maintain an exemption for excess emissions resulting from scheduled startup, shutdown and maintenance. The Commenters believe that the language in section 101.222(c) exempts certain excess emissions from compliance with permitted limits and thus means that no enforcement action can be taken for those periods of excess emissions. The Commenters cite to previous pronouncements by EPA that excess emissions during periods of startup and shutdown must be treated as violations. In addition, the Commenters reject as unfounded the statement by Texas that these exempted emissions are below the level required for inclusion in permits under the Texas Health and Safety Code. The Commenters note that there is no limit on how large these emissions might be. Response to Comment #2: Section 101.222(c) generally addresses excess emissions from scheduled maintenance, startup, or shutdown activities and section 101.222(e) addresses excess opacity emissions resulting from scheduled maintenance, startup, or shutdown activities. On its face, both sections 101.222(c) and (e) establish criteria similar to those that EPA established for purposes of an affirmative defense. The Texas rule provides that emissions from scheduled startup, shutdown or maintenance must be included in a permit unless the owner or operator of a source proves that all of the criteria are met. The State has explained to EPA that it construes this provision as establishing enforcement discretion on the part of the State. They have explained that where the criteria are not met, then the State may enforce against a source for a violation of the applicable emissions E:\FR\FM\30MRR1.SGM 30MRR1 16132 Federal Register / Vol. 70, No. 60 / Wednesday, March 30, 2005 / Rules and Regulations limitation for the period of excess emissions. Upon further reading of the Texas rule, we are not convinced that the State’s interpretation of the rule is likely to prevail if challenged. We think it is plausible that if EPA or a citizen group sought to enforce against a source which contends to have met the criteria specified in section 101.222(c), the source would offer a defense that such emissions were not subject to permitting requirements and were therefore not violations. Additionally, we are concerned about the interpretation of section 101.222(e), which also seems to provide an exemption from the applicable emission limits if a source can prove that the specified criteria are met. Again, the State has indicated that it interprets this provision not as excusing the source from compliance, but rather as a tool for the exercise of enforcement discretion on the part of the State. However, upon further review, we think the language is ambiguous at best and could well be construed by a court as excusing a source from compliance for these periods of excess emissions. Thus, even if the State chose not to enforce against a source where it believes the source has met the specified criteria, we believe it is possible that a court would dismiss any suit by EPA or citizens to enforce on the basis that the source was not subject to the underlying emission limit. We believe that at best these provisions are ambiguous and, at worst, do in fact exempt sources from compliance with underlying emission limits if the specified criteria are met. Based on this conclusion, we have concerns about the effect of these provisions on the enforceability of applicable emission limits, and thus have concluded that we cannot fully approve the SIP. As stated above, however, we believe that the new rule, as a whole, strengthens the SIP and we are granting a limited approval of the SIP revisions. Comment #3: The Commenters state that EPA should only approve sections 101.222(b) and 101.222(d) with the clarification that affirmative defense does not apply to federally performancebased standards. The Commenters state the Texas’ rule will allow the affirmative defense to apply to violations of performance based Federal standards such as NSPS and NESHAP. Response to Comment #3: Chapter 101 addresses violations of SIP requirements caused by periods of excess emissions due to SSM activities. For clarification and public record purposes, all of the federally promulgated performance or VerDate jul<14>2003 16:21 Mar 29, 2005 Jkt 205001 technology-based standards, and other Federal requirements, such as those found in 40 CFR parts 60, 61, and 63; and titles IV, and VI of the Act remain in full effect, and are independent of today’s approval of revisions to the Texas SIP. We also want to make clear that today’s limited approval of the Texas excess emissions rule into the Texas SIP may not, under any circumstances, be construed as rescinding, replacing, or limiting applicable Federal requirements regardless of the source’s category or locality. Comment #4: The Commenters state the affirmative defense in Texas’ rule should not apply where a single source or small group has the potential to cause an exceedance of the NAAQS. Response to Comment #4: We believe the Texas rule, which places the burden on the source asserting an affirmative defense to demonstrate that the specific activity at issue did not contribute to an exceedance of the NAAQS or PSD increments or to a condition of air pollution, is appropriate. Subsection 101.222(b)(11) requires the source or operator to prove that ‘‘unauthorized emissions did not cause or contribute to an exceedance of the NAAQS, prevention of significant deterioration (PSD) increments, or to a condition of air pollution.’’ This provision ensures that an affirmative defense could not be sustained for an emissions activity for which the owner or operator has failed to prove that the event did not cause or contribute to an exceedance of the NAAQS, PSD increments or to a condition of air pollution. Comment #5: The Commenters state the Texas’ rule allows boilers and combustion turbines to escape reporting requirements. Response to Comment #5: Subsection 101.201(a)(3) concerns notification for reportable emissions activities involving boilers or combustion turbines. Subsection 101.211(a)(2) concerns the notification for a scheduled maintenance, startup, or shutdown activity involving a boiler or combustion turbine. Also see subsection 101.201(d) of the rule. We do not believe that Texas’ reporting requirements for excess emissions exclude boilers or combustion turbines. For these reasons we disagree with the Commission. Comment #6: The Commenters state that EPA should announce its intent to automatically re-issue a Notice of Deficiency (NOD) to the State should Texas adopt revised rules prior to June 30, 2005, that do not comply with the Act and EPA’s guidance. The Commenters are concerned that Texas PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 may rescind the existing rules and adopt new rules before June 30, 2005 and once again be in the position of being unable to enforce the excess emissions provision in the SIP. Response to Comment #6: The present record does not provide sufficient information to enable the Agency to make a determination of whether a notice of deficiency under title V of the Act would be warranted for the circumstances forecast by petitioners.1 The Agency would need to review the rule allegedly causing the title V program deficiency to determine whether a violation of title V has occurred. However, at this stage, Commenters are only speculating as to future revisions to the rules that the State might or might not adopt. The Agency also balances a number of other factors in determining whether to issue a notice of deficiency, including allocation of agency resources, likelihood of success in pursuing enforcement through an NOD, likelihood of resolving a program flaw through other mechanisms, and how enforcement in a particular situation fits within the Agency’s overall policies. It is not practicable to review these factors prior to the time a revision to the Texas rules would warrant such review. This concludes our responses to the written comments we received during public comment period concerning March 2, 2004 (69 FR 9776), Texas proposed SIP revision. 6. What Areas in Texas Will These Rule Revisions Affect? These rule revisions affect all sources of air emissions operating within the State of Texas. 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 will not have a significant economic 1 The Agency previously issued an NOD to Texas on January 7, 2002, based on different issues. See 67 FR 732. The State also revised and renumbered its rules relating to reporting, recordkeeping, and enforcement actions for SSM excess emissions, which are the rules at issue in the present action. E:\FR\FM\30MRR1.SGM 30MRR1 16133 Federal Register / Vol. 70, No. 60 / Wednesday, March 30, 2005 / Rules and Regulations 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 (Public Law 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. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this 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. 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 May 31, 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: March 18, 2005. Richard E. Greene, Regional Administrator, Region 6. PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: I Authority: 42 U.S.C. 7401 et seq. Subpart SS—Texas 2. The table in § 52.2270(c) entitled ‘‘EPA Approved Regulations in the Texas SIP’’ is amended as follows: (a) Under Chapter 101, Subchapter A, by revising the entry for Section 101.1; (b) Under Chapter 101, Subchapter A, by removing the entry for Section 101.1 Table II, ‘‘Definitions—List of Synthetic Organic Chemicals;’’ (c) Under Chapter 101, Subchapter A, by removing the entries for the following Sections: 101.6, 101.7, 101.11, 101.12, 101.15, 101.16, and 101.17; (d) Under Chapter 101, Subchapter A, immediately following the entry for Section 101. Rule 19, ‘‘Initiation of Review,’’ by adding a new centered heading ‘‘Subchapter F—Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities’’ followed by new entries for Sections 102.201, 101.211, 101.221, 101.222, 101.223, 101.224, 101.231, 101.232, and 101.233. The revision and additions read as follows: I § 52.2270 * Identification of plan. * * (c) * * * * * EPA APPROVED REGULATIONS IN THE TEXAS SIP State citation * * Section 101.1 ................. VerDate jul<14>2003 State approval/submittal date Title/subject * * * Chapter 101—General Air Quality Rules Subchapter A—General Rules Definitions ........................................................... 16:21 Mar 29, 2005 EPA approval date Jkt 205001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 08/21/02 * 03/30/05 [Insert FR citation from published date]. E:\FR\FM\30MRR1.SGM 30MRR1 Explanation * 16134 Federal Register / Vol. 70, No. 60 / Wednesday, March 30, 2005 / Rules and Regulations EPA APPROVED REGULATIONS IN THE TEXAS SIP—Continued State citation State approval/submittal date Title/subject * * * * EPA approval date * * Explanation * Subchapter F—Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities Division 1—Emissions Events Section 101.201 ............. Emissions Event Reporting and Recordkeeping Requirements. 08/21/02 03/30/05 [Insert FR citation from published date]. Division 2—Maintenance, Startup, and Shutdown Activities Section 101.211 ............. Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements. 08/21/02 03/30/05 [Insert FR citation published date]. Division 3—Operational Requirements, Demonstrations, and Actions to Reduce Excessive Emissions Section 101.221 ............. Operational Requirements .................................. 12/17/03 Section 101.222 ............. Demonstrations ................................................... 12/17/03 Section 101.223 ............. Actions to Reduce Excessive Emissions ........... 12/17/03 Section 101.224 ............. Temporary Exemptions During Drought Conditions. 03/30/05 [Insert FR citation from published date]. 03/30/05 [Insert FR citation from published date]. 03/30/05 [Insert FR citation from published date]. 03/30/05 [Insert FR citation from published date]. 08/21/02 Division 4—Variances Section 101.231 ............. Petition for Variance ........................................... 08/21/02 Section 101.232 ............. Effect of Acceptance of Variance or Permit ....... 08/21/02 Section 101.233 ............. Variance Transfers ............................................. 08/21/02 * * * [FR Doc. 05–6313 Filed 3–29–05; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70 [TX–154–2–7609; FRL–7892–6] Approval of Revisions and Notice of Resolution of Deficiency for Clean Air Act Operating Permit Program in Texas Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: SUMMARY: EPA is approving revisions to the Texas Title V operating permits program submitted by the Texas Commission on Environmental Quality (TCEQ) on December 9, 2002. In a VerDate jul<14>2003 16:21 Mar 29, 2005 Jkt 205001 * 03/30/05 [Insert FR citation from published date]. 03/30/05 [Insert FR citation from published date]. 03/30/05 [Insert FR citation from published date]. * Notice of Deficiency (NOD) published on January 7, 2002, EPA notified Texas of EPA’s finding that the State’s periodic monitoring regulations, compliance assurance monitoring (CAM) regulations, periodic monitoring and CAM general operating permits (GOP), statement of basis requirement, applicable requirement definition, and potential to emit (PTE) registration regulations did not meet the minimum Federal requirements of the Clean Air Act and the regulations for State operating permits pfrograms. This action approves the revisions that TCEQ submitted to correct the identified deficiencies. Today’s action also approves other revisions to the Texas Title V Operating Permit Program submitted on December 9, 2002, which relate to concurrent review and credible evidence. The December 9, 2002, PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 * * submittal also included revisions to the Texas State Implementation Plan (SIP). We published our final SIP approval in the Federal Register on November 14, 2003 (68 FR 64543). These revisions to Texas’ operating permits program resolve all deficiencies identified in the January 7, 2002, NOD and removes the potential for any resulting consequences under the Act, including sanctions, with respect to the January 7, 2002, NOD. DATES: This final rule is effective on April 29, 2005. ADDRESSES: Copies of the documents relevant to this action, including EPA’s Technical Support Document, are in the official file which is available at the Air Permits Section (6PD–R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202–2733. The file will be made available by appointment for public inspection in E:\FR\FM\30MRR1.SGM 30MRR1

Agencies

[Federal Register Volume 70, Number 60 (Wednesday, March 30, 2005)]
[Rules and Regulations]
[Pages 16129-16134]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6313]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-162-1-7598; FRL-7892-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action finalizes limited approval of revisions to the 
Texas State Implementation Plan (SIP) concerning excess emissions for 
which we proposed approval on March 2, 2004. The revisions address 
reporting, recordkeeping, and enforcement actions for excess emissions 
during startup, shutdown, and malfunction (SSM) activities. This 
limited approval action is being taken under section 110 of the Federal 
Clean Air Act (the Act) to further air quality improvement by 
strengthening the SIP. See sections 1 and 3 of this document for more 
information.

DATES: This rule is effective on April 29, 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.

[[Page 16130]]


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, shar.alan@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What Actions Are We Taking in This Document?
2. What Documents Did We Use in the Evaluation of This Rule?
3. What Is the Basis for a Limited Rather Than a Full Approval?
4. Who Submitted Comments to Us?
5. What Is Our Response to the Submitted Written Comments?
6. What Areas in Texas Will These Rule Revisions Affect?

Statutory and Executive Order Reviews

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

1. What Actions Are We Taking in This Document?

    On March 2, 2004 (69 FR 9776), we proposed approval of revisions 
and deletions to the Texas SIP pertaining to Texas' excess emissions 
rule, 30 TAC, General Air Quality Rule 101, Subchapter A, and 
Subchapter F (September 12, 2002, and January 5, 2004, submittals). 
Specifically, the revisions address the reporting and recordkeeping, 
and enforcement actions for excess emissions during SSM activities. The 
September 12, 2002, and January 5, 2004, submittals primarily address 
violations of SIP requirements caused by periods of excess emissions 
due to SSM activities. See section 1 of our March 2, 2004 (69 FR 9776), 
proposal for additional information.
    Generally, since SIPs must provide for attainment and maintenance 
of the National Ambient Air Quality Standards (NAAQS), all periods of 
emissions in excess of applicable SIP limitations must be considered 
violations. The EPA cannot approve a SIP revision that provides an 
automatic exemption for periods of excess emissions violating a SIP 
requirement. In addition, excess emissions above applicable emission 
limitations in title V operating permits are deviations subject to 
title V reporting requirements.
    Today, we are finalizing limited approval of the September 12, 
2002, and January 5, 2004, revisions and deletions to the Texas SIP. 
The submitted revisions strengthen the SIP because they clarify that 
sources are not exempt from underlying SIP emissions limits where there 
is an emissions activity. Rather, the source may assert an affirmative 
defense in an action for penalties concerning the emission activity. 
The revisions also provide: (a) The commission may issue an order 
finding that a site has chronic ``excessive'' malfunctions, (b) if the 
executive director determines that a facility is having ``excessive'' 
malfunctions, the owner or operator must take action to reduce the 
excess emissions activities and obtain either a corrective action plan 
or a permit reflecting the control device, other measures, or 
operational changes required for the said reduction, and (c) the 
affirmative defense approach for malfunctions does not apply if there 
is a malfunction at a source under a corrective action plan. This 
limited approval will strengthen the latest federally approved Texas 
SIP dated November 28, 2000 (65 FR 70792).
    As authorized by section 110(k)(3) of the Act, we are taking final 
action to grant a limited, rather than full, approval of this rule. We 
are finalizing this limited approval because we have determined that 
the rule improves the SIP and is largely consistent with the relevant 
requirements of the Act. The submittal, as a whole, strengthens the 
existing Texas SIP. For example, the revised affirmative defense 
provisions are an improvement over the related provisions in the 
current SIP, which are removed from the SIP by this action. This 
limited approval incorporates all of the submitted revisions into the 
Texas SIP. The entire rule becomes part of the State's approved, 
federally enforceable SIP and may be enforced by EPA and citizens, as 
well as by the State. We are finalizing a limited approval of this rule 
after review of adverse comments in response to our proposed approval 
of the rule, and in order to ensure national SIP consistency with EPA's 
interpretation of the Act and policy on excess emissions during SSM 
activities. Sections 101.221, 101.222, and 101.223 will sunset from 
State law, and therefore from the SIP, by their own terms, on June 30, 
2005 without further action by EPA. Upon expiration of the provisions, 
all emissions in excess of applicable emission limitations during SSM 
activities remain violations of the Texas SIP, subject to enforcement 
actions by the State, EPA or citizens.

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

    The EPA's interpretation of the Act on excess emissions occurring 
during startup, shutdown or malfunction 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 
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: https://www.epa.gov/ttn/oarpg/t1pgm.html.
    To find the latest federally approved Texas SIP concerning excess 
emissions see 65 FR 70792 (November 28, 2000).

3. What Is the Basis for a Limited Rather Than a Full Approval?

    Section 101.222(c) addresses excess emissions from scheduled 
maintenance, startup, or shutdown activities, and section 101.222(e) 
addresses excess emissions from scheduled maintenance, startup, or 
shutdown activity from opacity activities. After reviewing the public 
comments, we believe that these provisions are ambiguous, at best, and 
inconsistent with the Act, at worst, and could create problems with 
enforcing the underlying applicable emission limits.
    Texas has taken the position that these provisions provide for 
enforcement discretion by the State. In other words, if the enumerated 
criteria are met, then the State may exercise its enforcement 
discretion by choosing not to enforce against periods of excess 
emissions during scheduled maintenance, startup or shutdown. However, 
these provisions facially appear to go much further and excuse sources 
from permitting requirements (101.222(c)) or from the applicable 
opacity emission limits (101.222(e)) if the criteria are met. Thus, 
these rules appear to exempt sources from certain applicable SIP 
requirements. This is inconsistent with the statutory definition of 
emission limitation. And, if unaccounted for in the SIP, these 
emissions could interfere, among other things, with the ability of 
areas within the State to attain and maintain the NAAQS. In addition, 
to the extent these

[[Page 16131]]

provisions create an exemption from compliance, rather than simply 
explain when the State will exercise enforcement discretion, they would 
prevent EPA or citizen enforcement.
    Moreover, it is unclear whether sections 101.222(c) and (e) may 
provide for an affirmative defense for certain scheduled maintenance 
activities. In guidance documents issued by EPA and other final 
rulemakings, we have indicated that scheduled maintenance activities 
are predictable events that are subject to planning to minimize 
releases, unlike malfunctions (emission activities), which are sudden, 
unavoidable or beyond the control of the owner or operator. The EPA's 
interpretation of Section 110 of the Act and related policies allows an 
affirmative defense to be asserted against civil penalties in an 
enforcement action for excess emissions activities which are sudden, 
unavoidable or caused by circumstances beyond the control of the owner 
or operator and where emissions control systems may not be consistently 
effective during startup or shutdown periods. However, EPA has 
determined that it is inappropriate to provide an affirmative defense 
for excess emissions resulting from scheduled maintenance, and to 
excuse these excess emissions from a penalty action. The State may, 
however, choose to exercise its enforcement discretion for excess 
emissions due to predictable events such as scheduled maintenance 
activities. See 42 FR 21472 (April 27, 1977), 42 FR 58171 (November 8, 
1977), and 65 FR 51412 (August 23, 2000).
    We are today granting a limited approval of the submitted revisions 
and deletions to the Texas SIP. We cannot fully approve the rule 
because sections 101.222(c) and (e): (1) Are ambiguous and unclear as 
to whether they address only State enforcement discretion, (2) might be 
interpreted to provide exemptions to SIP permitting requirements, and 
(3) might be interpreted to provide an affirmative defense for excess 
emissions from scheduled maintenance activities. Because the provisions 
found in sections 101.222(c) and (e) are not mandatory requirements of 
the Act and because section 101.222 will expire from the SIP by its own 
terms on June 30, 2005, no further action by Texas to correct the rule 
is necessary. Upon expiration of the provisions, all emissions in 
excess of applicable emission limitations during SSM activities remain 
violations of the Texas SIP, subject to enforcement action by the 
State, EPA or citizens. However, if Texas revises its rules to include 
an affirmative defense for excess emissions in the Texas SIP in the 
future, the State should ensure that the revisions do not contain 
exemptions from permitting or other SIP requirements, that the 
affirmative defense does not apply to excess emissions from scheduled 
maintenance activities, and, if the State wishes to codify its 
enforcement discretion, that terms are clear and do not bar or limit 
enforcement actions taken by EPA or citizens for excess emissions which 
exceed applicable SIP emission limitations. Any revisions should 
continue to recognize that emissions in excess of applicable emission 
limitations and SIP requirements are violations of the Texas SIP, 
subject to enforcement actions by the State, EPA or citizens. If the 
State submits a revised rule addressing excess emissions during SSM 
activities, EPA will review the rule for consistency with the 
requirements of the Act and EPA policy. Below, we summarize and respond 
to comments received during the public comment period on the proposed 
March 2, 2004 (69 FR 9776), Texas SIP revision.

4. Who Submitted Comments to Us?

    We received one set of written comment on the March 2, 2004 (69 FR 
9776), proposed Texas SIP revision. The comment was submitted jointly 
by the Environmental Integrity Project, Environmental Defense, 
Galveston-Houston Association for Smog Prevention, Refinery Reform, 
Community InPower and Development Association, Citizens for 
Environmental Justice, and Public Citizen's Texas Office (the 
Commenters).

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

    Our responses to the written comments concerning the proposed March 
2, 2004 (69 FR 9776), Texas SIP revision are as follows:
    Comment #1: The Commenters state that Texas' rule is an improvement 
over its previous illegal exemption provisions; however, the rule still 
creates an affirmative defense which is too broad.
    Response to Comment #1: We appreciate the Commenters' statement 
that the Texas excess emissions rule approved today into the Texas SIP 
is an improvement over its previous version, which is removed from the 
SIP by this action. The criteria and conditions constituting the 
affirmative defense approach, as incorporated in the rule, are those 
identified in EPA's 1999 policy on excess emissions. This improvement, 
in part, constitutes our rationale for a limited approval of this Texas 
SIP revision. However, we agree with Commenters that the affirmative 
defense may be too broad because, as discussed above, it appears to be 
available for certain maintenance activities. The EPA's interpretation 
of Section 110 of the Act and related policies allow an affirmative 
defense to be asserted against civil penalties in an enforcement action 
for excess emissions activities which are sudden, unavoidable or beyond 
the control of the owner or operator and where emissions controls may 
not be consistently effective during startup or shutdown periods. The 
State may choose to exercise its enforcement discretion for excess 
emissions from predictable events such as scheduled maintenance 
activities.
    Comment #2: The Commenters state that EPA should disapprove 
sections 101.222(c) and (e) of Texas' submittal because these 
provisions maintain an exemption for excess emissions resulting from 
scheduled startup, shutdown and maintenance. The Commenters believe 
that the language in section 101.222(c) exempts certain excess 
emissions from compliance with permitted limits and thus means that no 
enforcement action can be taken for those periods of excess emissions. 
The Commenters cite to previous pronouncements by EPA that excess 
emissions during periods of startup and shutdown must be treated as 
violations. In addition, the Commenters reject as unfounded the 
statement by Texas that these exempted emissions are below the level 
required for inclusion in permits under the Texas Health and Safety 
Code. The Commenters note that there is no limit on how large these 
emissions might be.
    Response to Comment #2: Section 101.222(c) generally addresses 
excess emissions from scheduled maintenance, startup, or shutdown 
activities and section 101.222(e) addresses excess opacity emissions 
resulting from scheduled maintenance, startup, or shutdown activities. 
On its face, both sections 101.222(c) and (e) establish criteria 
similar to those that EPA established for purposes of an affirmative 
defense. The Texas rule provides that emissions from scheduled startup, 
shutdown or maintenance must be included in a permit unless the owner 
or operator of a source proves that all of the criteria are met. The 
State has explained to EPA that it construes this provision as 
establishing enforcement discretion on the part of the State. They have 
explained that where the criteria are not met, then the State may 
enforce against a source for a violation of the applicable emissions

[[Page 16132]]

limitation for the period of excess emissions.
    Upon further reading of the Texas rule, we are not convinced that 
the State's interpretation of the rule is likely to prevail if 
challenged. We think it is plausible that if EPA or a citizen group 
sought to enforce against a source which contends to have met the 
criteria specified in section 101.222(c), the source would offer a 
defense that such emissions were not subject to permitting requirements 
and were therefore not violations. Additionally, we are concerned about 
the interpretation of section 101.222(e), which also seems to provide 
an exemption from the applicable emission limits if a source can prove 
that the specified criteria are met. Again, the State has indicated 
that it interprets this provision not as excusing the source from 
compliance, but rather as a tool for the exercise of enforcement 
discretion on the part of the State. However, upon further review, we 
think the language is ambiguous at best and could well be construed by 
a court as excusing a source from compliance for these periods of 
excess emissions. Thus, even if the State chose not to enforce against 
a source where it believes the source has met the specified criteria, 
we believe it is possible that a court would dismiss any suit by EPA or 
citizens to enforce on the basis that the source was not subject to the 
underlying emission limit.
    We believe that at best these provisions are ambiguous and, at 
worst, do in fact exempt sources from compliance with underlying 
emission limits if the specified criteria are met. Based on this 
conclusion, we have concerns about the effect of these provisions on 
the enforceability of applicable emission limits, and thus have 
concluded that we cannot fully approve the SIP. As stated above, 
however, we believe that the new rule, as a whole, strengthens the SIP 
and we are granting a limited approval of the SIP revisions.
    Comment #3: The Commenters state that EPA should only approve 
sections 101.222(b) and 101.222(d) with the clarification that 
affirmative defense does not apply to federally performance-based 
standards. The Commenters state the Texas' rule will allow the 
affirmative defense to apply to violations of performance based Federal 
standards such as NSPS and NESHAP.
    Response to Comment #3: Chapter 101 addresses violations of SIP 
requirements caused by periods of excess emissions due to SSM 
activities. For clarification and public record purposes, all of the 
federally promulgated performance or technology-based standards, and 
other Federal requirements, such as those found in 40 CFR parts 60, 61, 
and 63; and titles IV, and VI of the Act remain in full effect, and are 
independent of today's approval of revisions to the Texas SIP. We also 
want to make clear that today's limited approval of the Texas excess 
emissions rule into the Texas SIP may not, under any circumstances, be 
construed as rescinding, replacing, or limiting applicable Federal 
requirements regardless of the source's category or locality.
    Comment #4: The Commenters state the affirmative defense in Texas' 
rule should not apply where a single source or small group has the 
potential to cause an exceedance of the NAAQS.
    Response to Comment #4: We believe the Texas rule, which places the 
burden on the source asserting an affirmative defense to demonstrate 
that the specific activity at issue did not contribute to an exceedance 
of the NAAQS or PSD increments or to a condition of air pollution, is 
appropriate. Subsection 101.222(b)(11) requires the source or operator 
to prove that ``unauthorized emissions did not cause or contribute to 
an exceedance of the NAAQS, prevention of significant deterioration 
(PSD) increments, or to a condition of air pollution.'' This provision 
ensures that an affirmative defense could not be sustained for an 
emissions activity for which the owner or operator has failed to prove 
that the event did not cause or contribute to an exceedance of the 
NAAQS, PSD increments or to a condition of air pollution.
    Comment #5: The Commenters state the Texas' rule allows boilers and 
combustion turbines to escape reporting requirements.
    Response to Comment #5: Subsection 101.201(a)(3) concerns 
notification for reportable emissions activities involving boilers or 
combustion turbines. Subsection 101.211(a)(2) concerns the notification 
for a scheduled maintenance, startup, or shutdown activity involving a 
boiler or combustion turbine. Also see subsection 101.201(d) of the 
rule. We do not believe that Texas' reporting requirements for excess 
emissions exclude boilers or combustion turbines. For these reasons we 
disagree with the Commission.
    Comment #6: The Commenters state that EPA should announce its 
intent to automatically re-issue a Notice of Deficiency (NOD) to the 
State should Texas adopt revised rules prior to June 30, 2005, that do 
not comply with the Act and EPA's guidance. The Commenters are 
concerned that Texas may rescind the existing rules and adopt new rules 
before June 30, 2005 and once again be in the position of being unable 
to enforce the excess emissions provision in the SIP.
    Response to Comment #6: The present record does not provide 
sufficient information to enable the Agency to make a determination of 
whether a notice of deficiency under title V of the Act would be 
warranted for the circumstances forecast by petitioners.\1\ The Agency 
would need to review the rule allegedly causing the title V program 
deficiency to determine whether a violation of title V has occurred. 
However, at this stage, Commenters are only speculating as to future 
revisions to the rules that the State might or might not adopt. The 
Agency also balances a number of other factors in determining whether 
to issue a notice of deficiency, including allocation of agency 
resources, likelihood of success in pursuing enforcement through an 
NOD, likelihood of resolving a program flaw through other mechanisms, 
and how enforcement in a particular situation fits within the Agency's 
overall policies. It is not practicable to review these factors prior 
to the time a revision to the Texas rules would warrant such review.
---------------------------------------------------------------------------

    \1\ The Agency previously issued an NOD to Texas on January 7, 
2002, based on different issues. See 67 FR 732. The State also 
revised and renumbered its rules relating to reporting, 
recordkeeping, and enforcement actions for SSM excess emissions, 
which are the rules at issue in the present action.
---------------------------------------------------------------------------

    This concludes our responses to the written comments we received 
during public comment period concerning March 2, 2004 (69 FR 9776), 
Texas proposed SIP revision.

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

    These rule revisions affect all sources of air emissions operating 
within the State of Texas.

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 will not have a 
significant economic

[[Page 16133]]

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 (Public Law 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. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this 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. 
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 May 31, 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: March 18, 2005.
Richard E. Greene,
Regional Administrator, Region 6.

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 as follows:
    (a) Under Chapter 101, Subchapter A, by revising the entry for 
Section 101.1;
    (b) Under Chapter 101, Subchapter A, by removing the entry for 
Section 101.1 Table II, ``Definitions--List of Synthetic Organic 
Chemicals;''
    (c) Under Chapter 101, Subchapter A, by removing the entries for 
the following Sections: 101.6, 101.7, 101.11, 101.12, 101.15, 101.16, 
and 101.17;
    (d) Under Chapter 101, Subchapter A, immediately following the 
entry for Section 101. Rule 19, ``Initiation of Review,'' by adding a 
new centered heading ``Subchapter F--Emissions Events and Scheduled 
Maintenance, Startup, and Shutdown Activities'' followed by new entries 
for Sections 102.201, 101.211, 101.221, 101.222, 101.223, 101.224, 
101.231, 101.232, and 101.233.
    The revision and additions read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                          State approval/
         State citation               Title/subject       submittal date   EPA approval date      Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                 * * * * * * *
                                     Chapter 101--General Air Quality Rules
                                           Subchapter A--General Rules
----------------------------------------------------------------------------------------------------------------
Section 101.1..................  Definitions............        08/21/02  03/30/05 [Insert
                                                                           FR citation from
                                                                           published date].
 

[[Page 16134]]

 
                                                  * * * * * * *
--------------------------------
           Subchapter F--Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities
                                          Division 1--Emissions Events
----------------------------------------------------------------------------------------------------------------
Section 101.201................  Emissions Event                08/21/02  03/30/05 [Insert
                                  Reporting and                            FR citation from
                                  Recordkeeping                            published date].
                                  Requirements.
--------------------------------
                            Division 2--Maintenance, Startup, and Shutdown Activities
----------------------------------------------------------------------------------------------------------------
Section 101.211................  Scheduled Maintenance,         08/21/02  03/30/05 [Insert
                                  Startup, and Shutdown                    FR citation
                                  Reporting and                            published date].
                                  Recordkeeping
                                  Requirements.
--------------------------------
         Division 3--Operational Requirements, Demonstrations, and Actions to Reduce Excessive Emissions
----------------------------------------------------------------------------------------------------------------
Section 101.221................  Operational                    12/17/03  03/30/05 [Insert
                                  Requirements.                            FR citation from
                                                                           published date].
Section 101.222................  Demonstrations.........        12/17/03  03/30/05 [Insert
                                                                           FR citation from
                                                                           published date].
Section 101.223................  Actions to Reduce              12/17/03  03/30/05 [Insert
                                  Excessive Emissions.                     FR citation from
                                                                           published date].
Section 101.224................  Temporary Exemptions           08/21/02  03/30/05 [Insert
                                  During Drought                           FR citation from
                                  Conditions.                              published date].
--------------------------------
                                              Division 4--Variances
----------------------------------------------------------------------------------------------------------------
Section 101.231................  Petition for Variance..        08/21/02  03/30/05 [Insert
                                                                           FR citation from
                                                                           published date].
Section 101.232................  Effect of Acceptance of        08/21/02  03/30/05 [Insert
                                  Variance or Permit.                      FR citation from
                                                                           published date].
Section 101.233................  Variance Transfers.....        08/21/02  03/30/05 [Insert
                                                                           FR citation from
                                                                           published date].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 05-6313 Filed 3-29-05; 8:45 am]
BILLING CODE 6560-50-P
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