Approval and Promulgation of Implementation Plans; Texas; Revisions to New Source Review (NSR) State Implementation Plan (SIP); Emergency Orders, 8076-8083 [2013-02499]
Download as PDF
<![CDATA[
8076
Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Proposed Rules
TABLE 5—METHOD DETECTION LIMITS DETERMINED BY ANALYSIS OF REAGENT/TEFLON FILTER BLANKS AND REAGENT/
TEFLON FILTER BLANKS SPIKED WITH LOW-LEVEL Pb SOLUTION—Continued
Ultrasonic extraction method
Blank
(μg/m3)*
MDL** ...........................................................................................................................................................................
0.000109
Pb-spiked
(μg/m3)*
0.000097
m3
* Assumes 24
of air sampled.
** MDL is 3.143 times the standard deviation of the results for seven sample replicates analyzed.
TABLE 6—RECOVERIES OF LEAD FROM NIST SRMS SPIKED ONTO TEFLON FILTERS
Recovery, ICP–MS, (percent)
NIST 1547
plant
NIST 2709
soil
NIST 2583
dust
NIST 2582
paint
Ultrasonic Bath ........................................................................................................
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Extraction method
104±5
93±1
108±11
96±3
15.0 Pollution Prevention
15.1 Pollution prevention encompasses
any technique that reduces or eliminates the
quantity and/or toxicity of waste at the point
of generation. Numerous opportunities for
pollution prevention exist in laboratory
operations. Whenever feasible, laboratory
personnel should use pollution prevention
techniques to address their waste generation.
The sources of pollution generated with this
procedure are waste acid extracts and Pbcontaining solutions.
15.2 For information about pollution
prevention that may be applicable to
laboratories and research institutions, consult
Less is Better: Laboratory Chemical
Management for Waste Reduction, available
from the American Chemical Society’s
Department of Government Relations and
Science Policy, 1155 16th St. NW.,
Washington, DC 20036, www.acs.org.
16.0 Waste Management
16.1 Laboratory waste management
practices must be conducted consistent with
all applicable rules and regulations.
Laboratories are urged to protect air, water,
and land by minimizing all releases from
hood and bench operations, complying with
the letter and spirit of any sewer and
discharge permits and regulations, and by
complying with all solid and hazardous
waste regulation. For further information on
waste management, consult The Waste
Management Manual for Laboratory
Personnel available from the American
Chemical Society listed in Section 15.2 of
this method.
16.2 Waste HNO3, HCl, and solutions
containing these reagents and/or Pb must be
placed in labeled bottles and delivered to a
commercial firm that specializes in removal
of hazardous waste.
17.0 References
1. Method 6020A—Inductively Coupled
Plasma Mass Spectrometry. U.S.
Environmental Protection Agency. Revision
1, February 2007.
2. NIST, Certificate of Analysis: Standard
Reference Materials 2583, Trace Elements in
Indoor Dust, Nominal 90 mg/kg Lead,
National Institute of Standards and
Technology, Gaithersburg, MD, 1998.
VerDate Mar<15>2010
16:28 Feb 04, 2013
Jkt 229001
3. NIST, Certificate of Analysis: Standard
Reference Materials 2586, Trace Elements in
Soil, Nominal 500 mg/Kg Lead, National
Institute of Standards and Technology,
Gaithersburg, MD, 2008.
4. NIST, Certificate of Analysis: Standard
Reference Materials 2587, Trace Elements in
Soil Containing Lead from Paint, Nominal
3000 mg/Kg Lead, National Institute of
Standards and Technology, Gaithersburg,
MD, 2008.
5. NIST, Certificate of Analysis: Standard
Reference Materials 1648, Urban Particulate
Matter, 0.655 ± 0.033% Lead, National
Institute of Standards and Technology,
Gaithersburg, MD, 2008.
6. Rice 2013, Results from the
Development of a New Federal Reference
Method (FRM) for Lead in Total Suspended
Particulate (TSP) Matter. Docket # EPA–HQ–
OAR–2012–0210.
[FR Doc. 2013–02382 Filed 2–4–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2006–0600; FRL–9776–4]
Approval and Promulgation of
Implementation Plans; Texas;
Revisions to New Source Review
(NSR) State Implementation Plan (SIP);
Emergency Orders
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing disapproval
of revisions to the SIP for the State of
Texas that relate to Emergency Orders.
This includes portions of SIP revisions
that relate to Emergency Orders that
were submitted by Texas on August 31,
1993; December 10, 1998; February 1,
2006; and July 17, 2006. EPA is
proposing disapproval of these revisions
SUMMARY:
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
because these regulations do not meet
the requirement of the Clean Air Act
(the ‘‘Act’’ or ‘‘CAA’’), EPA regulations,
and applicable policy and guidance.
EPA is proposing this action under
section 110 and parts C and D of Title
I of the Act. EPA is returning the nonair portions of the aforementioned SIP
submittals to the State because these
provisions cannot be included in the
SIP.
Comments must be received on
or before March 7, 2013.
ADDRESSES: Submit your comments
identified by Docket ID No. EPA–R06–
OAR–2006–0600 by one of the following
methods:
(1) Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions for submitting
comments.
(2) Email: Ms. Ashley Mohr at
mohr.ashley@epa.gov.
(3) Fax: Ms. Ashley Mohr, Air Permits
Section (6PD–R), at fax number 214–
665–6762.
(4) Mail: Ms. Ashley Mohr, Air
Permits Section (6PD–R), Environmental
Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202–2733.
(5) Hand or Courier Delivery: Ms.
Ashley Mohr, Air Permits Section (6PD–
R), Environmental Protection Agency,
1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202–2733. Such deliveries are
accepted only between the hours of 8:30
a.m. and 4:30 p.m. weekdays except for
legal holidays. Special arrangements
should be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2006–
0600. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
DATES:
E:\FR\FM\05FEP1.SGM
05FEP1
Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Proposed Rules
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or email. The
https://www.regulations.gov web site is
an ‘‘anonymous access’’ system, which
means that EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA without going
through https://www.regulations.gov
your email address will be
automatically captured and included as
part of the comment that is placed in the
public docket and made available on the
internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Air Permits Section (6PD–R),
Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas
75202–2733. The file will be made
available by appointment for public
inspection in the Region 6 Freedom of
Information Act Review Room between
the hours of 8:30 a.m. and 4:30 p.m.
weekdays except for legal holidays.
Contact the person listed in the FOR
FURTHER INFORMATION CONTACT
paragraph below or Mr. Bill Deese at
(214) 665–7253 to make an
appointment. If possible, please make
the appointment at least two working
days in advance of your visit. There will
be a 15 cent per page fee for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
The State submittals, which are part
of the EPA docket, are also available for
public inspection at the State Air
Agency during official business hours
by appointment: Texas Commission on
Environmental Quality (TCEQ), Office
of Air Quality, 12124 Park 35 Circle,
Austin, Texas 78753.
8077
Ms.
Ashley Mohr, Air Permits Section (6PD–
R), Environmental Protection Agency,
Region 6, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202–2733; telephone
(214) 665–7289; fax number (214) 665–
6762; email address
mohr.ashley@epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
any reference to ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is
used, we mean EPA.
Table of Contents
I. Background
II. What is EPA’s evaluation of the Texas
Emergency Orders Program?
A. Does the Emergency Orders Program
meet the requirements for projects that
are subject to New Source Review (NSR)?
1. Summary of the Federal Program for
Major NSR
2. What is EPA’s evaluation?
III. Proposed Action
IV. Statutory and Executive Order Reviews
I. Background
On August 31, 1993, TCEQ submitted
its regulations for Emergency Orders.
Revisions to these regulations were
submitted on December 10, 1998;
February 1, 2006; and July 17, 2006. The
pending SIP revisions are summarized
in Tables 1 and 2 below. Additional
information is included in the Technical
Support Document (TSD) for this action,
which is in the docket.
TABLE 1—SUMMARY OF PENDING SIP SUBMITTALS ADDRESSED IN THIS ACTION
Date
submitted to
EPA
Date
adopted by
State
Date
effective as
State rule
Original Recodification of Chapter 116 ................
8/31/1993
8/16/1993
9/13/1993
Emergency and Temporary Orders ......................
12/10/1998
11/18/1998
12/10/1998
Federal New Source Review Permits Rules ........
2/1/2006
1/11/2006
2/1/2006
Revision to Provisions for Emergency Orders .....
7/17/2006
6/28/2006
7/19/2006
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Description of SIP submittal
VerDate Mar<15>2010
17:41 Feb 04, 2013
Jkt 229001
PO 00000
Frm 00038
Fmt 4702
Sfmt 4702
Sections related to emergency orders
Chapter 116: Submittal of sections 116.410
through 116.418.
Chapter 35: Submittal of sections 35.1–35.3,
35.11–35.13, 35.21–35–30, and 35.801–
35.809
Chapter 116: Revisions to section 116.410; Repeal of sections 116.411–116.418, which were
replaced by sections 35.802–35.809
Chapter 116: Recodification of § 116.410 to
§ 116.1200.
Chapter 35: Revisions to sections 35.801,
35.802, 35.804, 35.805, 35,807, and 35.808.
E:\FR\FM\05FEP1.SGM
05FEP1
8078
Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Proposed Rules
TABLE 2—SUMMARY OF THE INDIVIDUAL REVISIONS TO EACH SECTION EVALUATED
Date
submitted to
EPA
Section—title
Adopted by
State
Effective as
State rule
Comments
30 TAC Chapter 35—Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permits Conditions
Subchapter A—Purpose, Applicability, and Definitions
Section 35.1—Purpose .........................................
Section 35.2—Applicability ...................................
Section 35.3—Definitions .....................................
12/10/1998
12/10/1998
12/10/1998
11/18/1998
11/18/1998
11/18/1998
12/10/1998
12/10/1998
12/10/1998
Initial adoption.
Initial adoption.
Initial adoption.
Subchapter B—Authority of the Executive Director
Section 35.11—Purpose and Applicability ...........
Section 35.12—Authority of the Executive Director.
Section 35.13—Eligibility of the Executive Director.
12/10/1998
12/10/1998
11/18/1998
11/18/1998
12/10/1998
12/10/1998
Initial adoption.
Initial adoption.
12/10/1998
11/18/1998
12/10/1998
Initial adoption.
Subchapter C—General Provisions
Section 35.21—Action by the Commission or Executive Director.
Section 35.22—Term and Renewal of Orders .....
§ 35.23—Effect of Orders .....................................
Section 35.24—Application for Emergency or
Temporary Orders.
Section 35.25—Notice and Opportunity for Hearing.
Section 35.26—Contents of Emergency or Temporary Orders.
Section 35.27—Hearing Required ........................
Section 35.28—Hearing Requests .......................
§ 35.29—Procedures for a Hearing ......................
Section 35.30—Application Fees .........................
12/10/1998
11/18/1998
12/10/1998
Initial adoption.
12/10/1998
12/10/1998
12/10/1998
11/18/1998
11/18/1998
11/18/1998
12/10/1998
12/10/1998
12/10/1998
Initial adoption.
Initial adoption.
Initial adoption.
12/10/1998
11/18/1998
12/10/1998
Initial adoption.
12/10/1998
11/18/1998
12/10/1998
Initial adoption.
12/10/1998
12/10/1998
12/10/1998
12/10/1998
11/18/1998
11/18/1998
11/18/1998
11/18/1998
12/10/1998
12/10/1998
12/10/1998
12/10/1998
Initial
Initial
Initial
Initial
adoption.
adoption.
adoption.
adoption.
Subchapter K—Air Orders 1
Section 35.801—Emergency Orders Because of
Catastrophe.
§§ 35.802—Application for an Emergency Order
12/10/1998
7/17/2006
8/31/1993
12/10/1998
11/18/1998
6/28/2006
8/16/1993
11/18/1998
12/10/1998
7/19/2006
9/13/1993
12/10/1998
7/17/2006
6/28/2006
7/19/2006
Section 35.803—Public Notification .....................
8/31/1993
12/10/1998
8/16/1993
11/18/1998
9/13/1993
12/10/1998
Section 35.804—Issuance of an Emergency
Order.
12/10/1998
11/18/1998
12/10/1998
7/17/2006
8/31/1993
6/28/2006
8/16/1993
7/19/2006
9/13/1993
12/10/1998
11/18/1998
12/10/1998
7/17/2006
6/28/2006
7/19/2006
8/31/1993
8/16/1993
9/13/1993
12/10/1998
11/18/1998
12/10/1998
8/31/1993
8/16/1993
9/13/1993
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Section 35.805—Contents of an Emergency
Order.
Section 35.806—Requirement to Apply for a Permit or Modification.
Section 35.807—Affirmation of an Emergency
Order.
VerDate Mar<15>2010
16:28 Feb 04, 2013
Jkt 229001
PO 00000
Frm 00039
Fmt 4702
Sfmt 4702
Initial adoption.
Revisions to section 35.801.
Initial adoption as section 116.411.
• Redesignated to section 35.802;
• Revisions to introductory paragraph;
• Revisions to paragraphs (1)–(8);
• New paragraph (9); and
• Redesignate former paragraph (9) to paragraph (10) with revisions.
Revisions to introductory paragraph (1) and
paragraph (5).
Initial adoption as section 116.412
• Redesignated to section 35.803; and
• Revisions to introductory paragraph.
Initial adoption.
Revision to paragraphs (1) and (1)(C).
Initial adoption as section 116.415.
Redesignated to section 35.805; and
Revision to introductory paragraph and paragraphs (1)–(4).
• Reorganization of paragraph (3) to paragraphs
(3), (3)(A), and (3)(B);
• New paragraph 3)(C);
• New paragraph (4); and
• Redesignation of existing paragraph (4) to
paragraph (5) with revisions.
Initial adoption as § 116.416.
• Redesignated to section 35.806; and
• Revisions to introductory paragraph.
Initial adoption as section 116.414.
E:\FR\FM\05FEP1.SGM
05FEP1
Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Proposed Rules
8079
TABLE 2—SUMMARY OF THE INDIVIDUAL REVISIONS TO EACH SECTION EVALUATED—Continued
Date
submitted to
EPA
Adopted by
State
Effective as
State rule
Comments
12/10/1998
11/18/1998
12/10/1998
7/17/2006
6/28/2006
7/19/2006
8/31/1993
8/16/1993
9/13/1993
• Redesignated to section 35.807; and
• Revisions to the introductory paragraph, paragraphs (1)–(3);
• New paragraph (4);
• Redesignation of former (4)–(5) to paragraphs
(5)–(6) with revisions.
• Revisions to paragraph (1).
• Reorganization of paragraph (5) into paragraphs (5), (5)(A), and (5)(B); and
• New paragraph (5)(C).
Initial adoption as section 116.417.
12/10/1998
11/18/1998
12/10/1998
7/17/2006
8/31/1993
6/28/2006
8/16/1993
7/19/2006
9/13/1993
12/10/1998
Section—title
11/18/1998
12/10/1998
Section 35.808—Modification of an Emergency
Order.
Section 35.809—Setting Aside an Emergency
Order.
• Redesignated to section 35.808; and
• Revisions to paragraphs (1)–(3).
Revision to paragraph (1).
Adopted as § 116.418.
• Redesignated to section 35.809; and
• Revision to introductory paragraph.
30 TAC Chapter 116—Control of Air Pollution by Permits for New Construction or Modification
Subchapter K—Emergency Orders
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Section 116.1200—Applicability ...........................
In general, the regulations governing
Emergency Orders are found in 30 TAC
Chapter 35—Emergency and Temporary
Orders and Permits; Temporary
Suspension or Amendment of Permit
Conditions. These regulations provide
the process by which the Texas
Commission on Environmental Quality
(TCEQ) may issue a Temporary Order,
Emergency Order, Mandatory Order,
Permissive Order, and Prohibitory Order
and include provisions that apply to
both air orders and non-air orders. As
part of this action, we are reviewing
only those portions that are applicable
to the issuance of air Emergency Orders.
Under the CAA, SIPs can only include
provisions addressing criteria pollutants
and their precursors, so the portions of
the Texas submittals related to non-air
orders cannot be included in the SIP.
Therefore, EPA is returning the non-air
portions of the aforementioned
submittals to the State.
Under the provisions in 30 TAC
Chapter 35, the TCEQ may issue an
Emergency Order under its air quality
program which authorizes immediate
action for the addition, replacement, or
repair of facilities, control equipment, or
the repair or replacement of roads,
bridges, and other infrastructure
whenever a catastrophe necessitates
1 On August 18, 1993, sections 116.411 through
116.418 were adopted under Chapter 116,
Subchapter E—Emergency Orders. On November
18, 1998, these regulations were replaced with
sections 35.802 through 35.809 and placed in
Chapter 35, Subchapter K.
VerDate Mar<15>2010
18:30 Feb 04, 2013
Jkt 229001
8/31/1993
12/10/1998
2/1/2006
8/16/1993
11/18/1998
1/11/2006
9/13/1993
12/10/1998
2/1/2006
such construction and emissions
otherwise precluded under the Texas
Clean Air Act. See 30 TAC 35.801.
Additional information on these
regulations, and the specific provisions
included in the regulations, is provided
in TSD for this action.
Today, EPA proposes to disapprove
the regulations identified in Table 2
above, except for provisions that do not
relate to the air quality requirements of
the Act. EPA is returning the following
non-air portions of the submitted rules
to the State: 30 TAC 35.13; 35.24(b) and
(e)(6)–(7); and 35.25(e)(1)–(8) and (11)–
(15). While we are proposing
disapproval of the Emergency Orders
Program, EPA does recognize the merits
of such a state-only Program that allows
for application review and order
issuance to authorize proposed actions
following catastrophes that often
necessitate immediate action by owners
and operators to minimize additional
downstream impacts resulting from the
catastrophe. Texas’s Emergency Orders
Program does allow for coordination
between the source and the TCEQ to
facilitate expedited review while
maintaining a review process, as
described in the June 17, 2006 SIP
submittal. Other State and local
agencies operate programs similar to the
Emergency Orders program. In these
cases, the regulations containing the
provisions related to those programs are
located within the states’ air quality
permitting regulations, not in the SIP.
PO 00000
Frm 00040
Fmt 4702
Sfmt 4702
Initial adoption as section 116.410.
Revised introductory paragraph.
Redesignated to section 116.1200.
EPA may exercise its enforcement
discretion on a case-by-case basis to
evaluate the owner or operator’s
proposed action in response to a
catastrophe and utilizes enforcement
discretion to allow for appropriate
immediate actions to minimize impacts
and restore the sources to full operation.
II. What is EPA’s evaluation of the
Texas Emergency Orders Program?
A. Does the Emergency Orders Program
meet the requirements for projects that
are subject to New Source Review
(NSR)?
The Emergency Orders Program could
be used to authorize construction via
the issuance of an Order prior to a
source submitting an application for a
NSR preconstruction permit. The issued
Emergency Order is an interim
authorization for the emissions of air
contaminants that are associated with
the construction or modification of any
source or facility in response to a
catastrophe, as defined in 30 TAC
35.801. Under the Emergency Orders
Program, an owner or operator can
apply for an Emergency Order that
would ‘‘authorize immediate action for
the addition, replacement, or repair of
facilities or control equipment, or the
repair or replacement of roads, bridges,
or other infrastructure, and authorizing
associated emissions of air
contaminants.’’ See 30 TAC 35.801.
E:\FR\FM\05FEP1.SGM
05FEP1
8080
Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS
1. Summary of the Federal Program for
Major NSR
The requirements for Major NSR are
in Title I, Parts C and D of the CAA and
in 40 CFR 51.165 and 51.166 and apply
to the construction and modification of
major stationary sources. The Major
NSR requirements apply to projects that
would be new major stationary sources
and projects that would be major
modifications under the requirements
for Prevention of Significant
Deterioration (PSD) under 40 CFR
51.166 and the requirements for
Nonattainment Area New Source
Review (NNSR) under 40 CFR 51.165.
The requirements for Major NSR
apply to the construction or
modification of stationary sources
which emit, or have the potential to
emit a regulated NSR pollutant at
greater than 100 tons per year for most
stationary sources. See CAA § 302(j).2
Major NSR is required under two
programs as described below:
Prevention of Significant
Deterioration (PSD). The requirements
for PSD are under the CAA Title I, Part
C and under 40 CFR 51.166. PSD
applies to the construction and
modification of major stationary sources
for the emissions of any pollutant for
which the region (or portion thereof) is
designated attainment or unclassifiable.
See CAA at § 161 and 40 CFR
51.166(a)(7)(i). Requirements of the PSD
Permitting Program include the
following:
• The PSD permit must be issued
prior to commencement of construction
and set forth emission limitations which
conform to the CAA. CAA § 165(a)(1)
and 40 CFR 51.166(a)(7).
• The proposed permit has been
subject to review in accordance with
CAA requirements and the regulations
promulgated under CAA, and the permit
has been subject to public hearing and
opportunity for interested persons to
submit comments. CAA § 165(a)(2) and
40 CFR 51.166(a)(7) & (q).
• The emissions from the
construction or operation of the source
will not cause, or contribute to, air
pollution in excess of the following: (1)
Maximum allowable increase or
maximum allowable concentration for
any pollutant in any area in which PSD
applies; (2) National Ambient Air
2 In certain nonattainment areas, the CAA
specifies lower thresholds based upon the degree of
nonattainment. See CAA at §§ 182(c), (d), and (d);
187(c)(1); and 189(b)(3). See 40 CFR
51.165(a)(1)(iv). Also, in a PSD area, under the CAA
§ 169(1), a major stationary source is either 100 tons
per year or more if the source belongs to a category
identified in the definition, otherwise it is major if
it emits or has the potential to emit 250 tons per
year or more. See 40 CFR 51.166(b)(1).
VerDate Mar<15>2010
16:28 Feb 04, 2013
Jkt 229001
Quality Standard; and (3) Any other
applicable emission standard or
standard of performance under the Act.
CAA § 165(a)(3) and 40 CFR 51.166(c).
• The source is subject to best
available control technology and the
permitted emissions represent that
technology. CAA § 165(a)(4) and
51.166(j).
• The requirements for protection of
Class I areas have been met by the
source. CAA § 165(a)(5) and 40 CFR
51.166(p).
• There has been an analysis of the
air quality impacts projected to occur as
the result of growth associated with the
source. CAA § 165(a)(6) and 40 CFR
51.166(o).
• Monitoring has been conducted, as
necessary, to determine the effect which
emissions from any such facility may
have, or is having, on air quality in any
area which may be affected by
emissions from such source. CAA
§ 165(a)(7) and 40 CFR 51.166(m).
• Specific requirements applicable to
source proposed to be located in Class
III areas have been met by the source.
CAA § 165(a)(8).
Nonattainment New Source Review
(NNSR). The requirements for NNSR are
under the CAA Title I, Part D and under
40 CFR 51.165. NNSR applies to the
construction and modification of major
stationary sources for the emissions of
any pollutant for which the region (or
portion thereof) is designated
nonattainment. See CAA at § 172(c)(5)
and 40 CFR 51.165(a)(2)(i).
Requirements of the NNSR Program
include the following:
• Emission increases must be offset
by reductions that are greater than the
increase. CAA § 173(a)(1).
• The proposed source is required to
comply with lowest achievable emission
rate. CAA § 173(a)(2).
• The owner or operator must
demonstrate that all major stationary
sources owned by such person (or
entity) are in compliance, or on a
schedule for compliance, with all
applicable emission limitations and
standards under the Act. CAA
§ 173(a)(3).
• EPA has not determined that the
State is not adequately implementing
the SIP for the nonattainment area in
which the proposed source is to be
constructed or modified. CAA
§ 173(a)(4).
• An analysis of alternative sites,
sizes, production processes, and
environmental control techniques for
such proposed source demonstrates that
benefits of the proposed source
significantly outweigh the
environmental and social costs imposed
PO 00000
Frm 00041
Fmt 4702
Sfmt 4702
as a result of its location, construction,
or modification. CAA § 173(a)(5).
The PSD and NNSR Programs each
require a new major stationary source or
major modification to obtain a
preconstruction permit prior to
commencing construction. For PSD see
CAA at § 165(a)(1) and 40 CFR
51.166(a)(7)(iii). For NNSR see CAA
§ 172(c)(5) and 40 CFR 51.165(a)(2)(i)–
(iii). Accordingly, a new or modified
major stationary source or major
modification may not be constructed
without a permit that meets the
requirements of the applicable Major
NSR Program.
2. What is EPA’s evaluation?
As discussed in detail in the TSD for
this action, in the July 17, 2006 SIP
submittal TCEQ characterizes its
Emergency Orders Program as a program
which ‘‘contemplate(s) and call(s) for a
comprehensive technical review.’’
However, notwithstanding the fact that
TCEQ states that the ‘‘comprehensive
review’’ for an Emergency Order is at
least as comprehensive as the TCEQ’s
review of permit applications, the
Emergency Orders Program does not
meet all the requirements applicable to
NSR. Specifically, the issuance of
Emergency Orders to projects that are
subject to Major NSR fail to meet the
requirements of the Clean Air Act and
the implementing regulations as
follows:
• The Emergency Orders Program
does not satisfy the public participation
required for NSR at the time the
Emergency Order is issued. Public
participation requirements that are
applicable to projects that are subject to
Major NSR are not met prior to the
issuance of the Emergency Order, which
would authorize the construction of
such projects. Instead, the applicable
public participation for Major NSR
projects will take place after the
issuance of the Emergency Order when
the applicant submits their application
for a Major NSR permit. The source has
60 days following the issuance of the
Emergency Order to submit the permit
application. See 30 TAC 35.806.
Meanwhile, the applicant is authorized
by the Emergency Order to begin
construction of the Major NSR project
prior to permit application submission
and permit issuance. Consequently, the
public is not afforded an opportunity to
review and comment on the proposed
project (as required under the CAA and
implementing regulations) until after
construction has begun; thus the public
has not been provided meaningful
opportunity to participate prior to
commencement of construction of the
Major NSR project. See 40 CFR 51.161
E:\FR\FM\05FEP1.SGM
05FEP1
Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS
and 51.166(q). It is important to note,
that while we are evaluating the
Emergency Orders Program against the
Major NSR requirements, the Minor
NSR Program also requires public
participation as part of the construction
permitting process.3
• The Emergency Orders Program
does not meet the requirement that a
NSR permit be issued prior to the
commencement of construction of a
Major Source. The CAA contemplates a
Major NSR permit that is issued as a
final authorization that certifies that the
Major NSR permit meets all the
requirements of PSD and NNSR. See
CAA at section 165(a) and 173(a) and 40
CFR 51.165(a)(2)(i) through (ii), and
51.166(a)(7)(i) through (v). In contrast,
the Emergency Order is an interim
authorization for immediate action,
including construction, following a
catastrophe and is not a final issued
Major NSR permit. Notwithstanding the
fact that the TCEQ conducts a review of
Emergency Order applications, which
TCEQ characterized as being equivalent
to the technical review of a permit, as
discussed above, the technical review
does not include all required
preconstruction review elements and
the issued order is an interim
authorization and not a final issued
Major NSR permit. The Emergency
Orders Program does require that a
source submit an application for any
necessary air permits, including Major
NSR permits, within 60 days following
the issuance of an Emergency Order. See
30 TAC 35.806. These permits are
required to be applied for and issued in
accordance with the applicable New
Source Review requirements. However,
the New Source Review permitting
would occur following the
commencement of construction at the
source. Therefore, the Emergency
Orders Program does not meet the CAA
requirement that the Major NSR permit
be issued prior to a source commencing
construction. For PSD see CAA at
§ 165(a)(1) and 40 CFR 51.166(a)(7)(iii).
For NNSR see CAA § 172(c)(5) and 40
CFR 51.165(a)(2)(i)–(iii).
Based on our review of the Emergency
Orders Program, which includes
authorizations of NSR actions, and
comparison with the applicable
requirements for Major NSR, we are
3 The Minor NSR requirements for public
participation are found at 40 CFR 51.161, and
require prior to construction or modification the
availability for public inspection of information
regarding the construction (including the State’s
analysis of the effect on air quality), a 30-day period
for submittal of public comment, and a notice by
prominent advertisement in the area affected. EPA
recognizes a state’s ability to tailor the scope of its
Minor NSR program as necessary to achieve and
maintain the NAAQS. See 77 FR 74140.
VerDate Mar<15>2010
16:28 Feb 04, 2013
Jkt 229001
proposing to disapprove the Program on
the basis that it does not meet all
applicable requirements. While we are
proposing disapproval of the Emergency
Orders Program, EPA would like to
recognize the merits of having a stateonly Program that allows for application
review and order issuance to authorize
proposed actions following catastrophes
that often necessitate immediate action
by owners and operators to minimize
additional downstream impacts
resulting from the catastrophe. Texas’s
Emergency Orders Program does allow
for coordination between the source and
the TCEQ to facilitate expedited review
while maintaining a review process, as
described in the June 17, 2006 SIP
submittal.
Other State and local agencies operate
programs similar to the Emergency
Orders Program to allow for the
authorization of owners and operators to
take immediate actions, including
construction, following catastrophes
that include natural disasters, such as
hurricanes, floods, and earthquakes, and
plant fires or explosions. In these cases,
the regulations containing the
provisions related to the program
operated by the State or local agency are
located within the states’ air quality
permitting regulations, not in the SIP,
and EPA may exercise enforcement
discretion on a case-by-case basis to
evaluate the owner or operators’
proposed actions in response to
catastrophe. For example, in 2005, the
EPA Region 6 office utilized
enforcement discretion to allow
facilities impacted by Hurricane Rita to
take appropriate immediate actions to
bring the sources back up to full
operation and minimize additional
impacts resulting from the catastrophe.
In this case, EPA issued Administrative
Compliance Orders after conducting
case-by-case review of the proposed
actions at a particular facility.4 5 More
recently, EPA has exercised
enforcement discretion in response to
the impacts caused by Hurricane Sandy
in both Regions 1 and 2. Following this
natural disaster, EPA issued a No Action
Assurance to allow loading and
unloading of fuel at bulk gasoline and
marine loading terminals and associated
truck loading racks in New York and
New Jersey without the required vapor
recovery/combustion if the facility was
not equipped with this control
4 Administrative Compliance Order dated
September 28, 2005 issued by the EPA Region 6
Compliance Assurance and Enforcement Division to
Georgia Pacific for the Port Hudson facility.
5 Administrative Compliance Order dated
November 17, 2005 issued by the EPA Region 6
Compliance Assurance and Enforcement Division to
the Municipality of Chambers County.
PO 00000
Frm 00042
Fmt 4702
Sfmt 4702
8081
equipment or the equipment had been
damaged by Sandy.6 EPA exercised its
enforcement discretion by issuing a No
Action Assurance to address severe fuel
shortages resulting from Hurricane
Sandy’s impacts. In each of the
examples here, and in fact in any
disaster situation, EPA has acted very
quickly to gather facts and take
appropriate action, so that critical
systems are not impeded from operating
as a result of the catastrophe.
While we are proposing disapproval
of the Emergency Orders Program on the
basis that the Program does not meet the
necessary federal requirements for
approval into the Texas SIP, this
proposed action will not impact how
the TCEQ has been operating the
Program in response to catastrophes
since the Program’s original adoption
into the State’s regulations in August
1993. EPA will continue to exercise
enforcement discretion on a case-bycase basis for actions proposed by
sources in Texas in response to
catastrophes, while the TCEQ continues
to rely upon the technical review
process provided by the Emergency
Orders Program to ensure that the
proposed actions are consistent with the
applicable State requirements and will
not interfere with the attainment or
maintenance of national ambient air
quality standards or violate applicable
portions of the control strategy.
III. Proposed Action
Under section 110(k)(3) of the Act,
and for the reasons stated above, EPA
proposes to disapprove the following
revisions to the Texas SIP.
• New 30 TAC 35.1—Purpose—
submitted December 10, 1998.
• New 30 TAC 35.2—Applicability—
submitted December 10, 1998.
• New 30 TAC 35.3—Definitions—
submitted December 10, 1998.
• New 30 TAC 35.11—Purpose and
Applicability—submitted December 10,
1998.
• New 30 TAC 35.12—Authority of
the Executive Director—submitted
December 10, 1998.
• New 30 TAC 35.21—Action by the
Commission or Executive Director—
submitted December 10, 1998.
• New 30 TAC 35.22—Term and
Renewal of Orders—submitted
December 10, 1998.
• New 30 TAC 35.23—Effect of
Orders—submitted December 10, 1998.
• New 30 TAC 35.24—Application
for Emergency or Temporary Orders—
6 No Action Assurance dated November 2, 2012
issued by the EPA Assistant Administrator to the
states of New York and New Jersey. Available at:
https://www.epa.gov/enforcement/air/documents/
policies/mobile/naa-vaporrecovery.pdf.
E:\FR\FM\05FEP1.SGM
05FEP1
mstockstill on DSK4VPTVN1PROD with PROPOSALS
8082
Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Proposed Rules
submitted December 10, 1998. No action
is proposed on subsection (b) and
paragraphs (e)(6)–(7) which are outside
the scope of the SIP.
• New 30 TAC 35.25—Notice and
Opportunity for Hearing—submitted
December 10, 1998. No action is
proposed on paragraphs (e)(1)–(8) and
(11)–(15) which are outside the scope of
the SIP.
• New 30 TAC 35.26—Contents of
Emergency or Temporary Order—
submitted December 10, 1998.
• New 30 TAC 35.27—Hearing
Required—submitted December 10,
1998.
• New 30 TAC 35.28—Hearing
Requests—submitted December 10,
1998.
• New 30 TAC 35.29—Procedures for
a Hearing—submitted December 10,
1998.
• New 30 TAC 35.30—Application
Fees—submitted December 10, 1998.
• New 30 TAC 35.801—Emergency
Orders Because of a Catastrophe—
submitted December 10, 1998; revision
submitted July 17, 2006.
• New 30 TAC 35.802—Applications
for an Emergency Order—submitted
August 31, 1993 (as 30 TAC 116.411);
revision submitted December 10, 1998
(as redesignated to 30 TAC 35.802);
revision submitted July 17, 2006.
• New 30 TAC 35.803—Public
Notification—submitted August 31,
1993 (as 30 TAC 116.412); and revision
submitted December 10, 1998 (as
redesignated to 30 TAC 35.803).
• New 30 TAC 35.804—Issuance of
an Emergency Order—submitted
December 10, 1998; revision submitted
July 17, 2006.
• New 30 TAC 35.805—Contents of
an Emergency Order—submitted August
31, 1993 (as 30 TAC 116.415); revision
submitted December 10, 1998 (as
redesignated to 30 TAC 35.805);
revision submitted July 17, 2006.
• New 30 TAC 35.806—Requirement
to Apply for a Permit or Modification—
submitted August 31, 1993 (as 30 TAC
116.416); revision submitted December
10, 1998 (as redesignated to 30 TAC
35.806).
• New 30 TAC 35.807—Affirmation
of an Emergency Order—submitted
August 31, 1993 (as 30 TAC 116.414);
revision submitted December 10, 1998
(as redesignated to 30 TAC 35.807);
revision submitted July 17, 2006.
• New 30 TAC 35.808—Modification
of an Emergency Order—submitted
August 31, 1993 (as 30 TAC 116.417);
revision submitted December 10, 1998
(as redesignated to 30 TAC 35.808);
revision submitted July 17, 2006.
• New 30 TAC 35.809—Setting Aside
an Emergency Order—submitted August
VerDate Mar<15>2010
16:28 Feb 04, 2013
Jkt 229001
31, 1993 (as 30 TAC 116.418); revision
submitted December 10, 1998 (as
redesignated to 30 TAC 35.809).
• New 30 TAC 116.1200—
Applicability—submitted August 31,
1993 (as 30 TAC 116.411); revisions
submitted December 10, 1998; revision
submitted February 1, 2006 (as
redesignated to 30 TAC 116.1200).
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866, Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and is therefore not
subject to review under the Executive
Order.
B. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., because this
proposed SIP disapproval under section
110 and subchapter I, part D of the
Clean Air Act will not in-and-of itself
create any new information collection
burdens but simply disapproves certain
State requirements for inclusion into the
SIP. Burden is defined at 5 CFR
1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to conduct
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements unless the
agency certifies that the rule will not
have a significant economic impact on
a substantial number of small entities.
Small entities include small businesses,
small not-for-profit enterprises, and
small governmental jurisdictions. For
purposes of assessing the impacts of
today’s rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s proposed rule on
small entities, I certify that this action
will not have a significant impact on a
substantial number of small entities.
This rule does not impose any
requirements or create impacts on small
PO 00000
Frm 00043
Fmt 4702
Sfmt 4702
entities. This proposed SIP disapproval
under section 110 and subchapter I, part
D of the Clean Air Act will not in-andof itself create any new requirements
but simply disapproves certain State
requirements for inclusion into the SIP.
Accordingly, it affords no opportunity
for EPA to fashion for small entities less
burdensome compliance or reporting
requirements or timetables or
exemptions from all or part of the rule.
The fact that the Clean Air Act
prescribes that various consequences
(e.g., higher offset requirements) may or
will flow from this disapproval does not
mean that EPA either can or must
conduct a regulatory flexibility analysis
for this action. Therefore, this action
will not have a significant economic
impact on a substantial number of small
entities.
We continue to be interested in the
potential impacts of this proposed rule
on small entities and welcome
comments on issues related to such
impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 ‘‘for State, local, or tribal
governments or the private sector.’’ EPA
has determined that the proposed
disapproval action does not include a
Federal mandate that may result in
estimated costs of $100 million or more
to either State, local, or tribal
governments in the aggregate, or to the
private sector. This action proposes to
disapprove pre-existing requirements
under State or local law, and imposes
no new requirements. Accordingly, no
additional costs to State, local, or tribal
governments, or to the private sector,
result from this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’
This action does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
E:\FR\FM\05FEP1.SGM
05FEP1
Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Proposed Rules
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, because it
merely disapproves certain State
requirements for inclusion into the SIP
and does not alter the relationship or
the distribution of power and
responsibilities established in the Clean
Air Act. Thus, Executive Order 13132
does not apply to this action.
F. Executive Order 13175, Coordination
With Indian Tribal Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (59 FR 22951, November 9,
2000), because the SIP EPA is proposing
to disapprove would not apply in Indian
country located in the State, and EPA
notes that it will not impose substantial
direct costs on tribal governments or
preempt tribal law. Thus, Executive
Order 13175 does not apply to this
action.
G. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This action is not subject to
Executive Order 13045 because it
because it is not an economically
significant regulatory action based on
health or safety risks subject to
Executive Order 13045 (62 FR 19885,
April 23, 1997).This proposed SIP
disapproval under section 110 and
subchapter I, part D of the Clean Air Act
will not in-and-of itself create any new
regulations but simply disapproves
certain State requirements for inclusion
into the SIP.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
H. Executive Order 13211, Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This proposed rule is not subject to
Executive Order 13211 (66 FR 28355,
May 22, 2001) because it is not a
significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
VerDate Mar<15>2010
16:28 Feb 04, 2013
Jkt 229001
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. NTTAA directs EPA
to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards.
The EPA believes that this action is
not subject to requirements of Section
12(d) of NTTAA because application of
those requirements would be
inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA lacks the discretionary authority
to address environmental justice in this
proposed action. In reviewing SIP
submissions, EPA’s role is to approve or
disapprove state choices, based on the
criteria of the Clean Air Act.
Accordingly, this action merely
proposes to disapprove certain State
requirements for inclusion into the SIP
under section 110 and subchapter I, part
D of the Clean Air Act and will not inand-of itself create any new
requirements. Accordingly, it does not
provide EPA with the discretionary
authority to address, as appropriate,
disproportionate human health or
environmental effects, using practicable
and legally permissible methods, under
Executive Order 12898.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Carbon monoxide, Lead, Nitrogen
dioxide, Ozone, Particulate matter,
Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
PO 00000
Frm 00044
Fmt 4702
Sfmt 4702
8083
Dated: January 28, 2013.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2013–02499 Filed 2–4–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2012–0913; FRL–9775–7]
Partial Disapproval of State
Implementation Plan; Arizona;
Regional Haze Requirements
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to
disapprove in part revisions to the
Arizona State Implementation Plan (SIP)
to implement the regional haze program
addressing visibility impairment in
mandatory Class I areas covered by the
requirements related to the Grand
Canyon Visibility Transport
Commission, an optional program for
certain western states. These SIP
revisions were submitted to address the
requirements of the Clean Air Act (CAA
or Act) requiring states to prevent any
future and remedy any existing
impairment of visibility in mandatory
Class I areas caused by man-made
pollution. We are taking comments on
this proposal and plan to follow with a
final action.
DATES: Any comments must be received
on or before March 7, 2013.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2012–0913, by one of the
following methods:
1. Federal eRulemaking Portal:
www.regulations.gov. Follow the on-line
instructions.
2. Email: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel
(Air-4), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through
www.regulations.gov or email.
www.regulations.gov is an ‘‘anonymous
SUMMARY:
E:\FR\FM\05FEP1.SGM
05FEP1
]]>Agencies
[Federal Register Volume 78, Number 24 (Tuesday, February 5, 2013)]
[Proposed Rules]
[Pages 8076-8083]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02499]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2006-0600; FRL-9776-4]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to New Source Review (NSR) State Implementation Plan (SIP);
Emergency Orders
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing disapproval of revisions to the SIP for the
State of Texas that relate to Emergency Orders. This includes portions
of SIP revisions that relate to Emergency Orders that were submitted by
Texas on August 31, 1993; December 10, 1998; February 1, 2006; and July
17, 2006. EPA is proposing disapproval of these revisions because these
regulations do not meet the requirement of the Clean Air Act (the
``Act'' or ``CAA''), EPA regulations, and applicable policy and
guidance. EPA is proposing this action under section 110 and parts C
and D of Title I of the Act. EPA is returning the non-air portions of
the aforementioned SIP submittals to the State because these provisions
cannot be included in the SIP.
DATES: Comments must be received on or before March 7, 2013.
ADDRESSES: Submit your comments identified by Docket ID No. EPA-R06-
OAR-2006-0600 by one of the following methods:
(1) Federal eRulemaking Portal: https://www.regulations.gov. Follow
the on-line instructions for submitting comments.
(2) Email: Ms. Ashley Mohr at mohr.ashley@epa.gov.
(3) Fax: Ms. Ashley Mohr, Air Permits Section (6PD-R), at fax
number 214-665-6762.
(4) Mail: Ms. Ashley Mohr, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
(5) Hand or Courier Delivery: Ms. Ashley Mohr, Air Permits Section
(6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733. Such deliveries are accepted only between the
hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays.
Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2006-0600. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any
[[Page 8077]]
personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
https://www.regulations.gov or email. The https://www.regulations.gov web
site is an ``anonymous access'' system, which means that EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send an email comment directly to EPA
without going through https://www.regulations.gov your email address
will be automatically captured and included as part of the comment that
is placed in the public docket and made available on the internet. If
you submit an electronic comment, EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 Freedom of
Information Act Review Room between the hours of 8:30 a.m. and 4:30
p.m. weekdays except for legal holidays. Contact the person listed in
the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese
at (214) 665-7253 to make an appointment. If possible, please make the
appointment at least two working days in advance of your visit. There
will be a 15 cent per page fee for making photocopies of documents. On
the day of the visit, please check in at the EPA Region 6 reception
area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
The State submittals, which are part of the EPA docket, are also
available for public inspection at the State Air Agency during official
business hours by appointment: Texas Commission on Environmental
Quality (TCEQ), Office of Air Quality, 12124 Park 35 Circle, Austin,
Texas 78753.
FOR FURTHER INFORMATION CONTACT: Ms. Ashley Mohr, Air Permits Section
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733; telephone (214) 665-7289; fax
number (214) 665-6762; email address mohr.ashley@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever any
reference to ``we,'' ``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background
II. What is EPA's evaluation of the Texas Emergency Orders Program?
A. Does the Emergency Orders Program meet the requirements for
projects that are subject to New Source Review (NSR)?
1. Summary of the Federal Program for Major NSR
2. What is EPA's evaluation?
III. Proposed Action
IV. Statutory and Executive Order Reviews
I. Background
On August 31, 1993, TCEQ submitted its regulations for Emergency
Orders. Revisions to these regulations were submitted on December 10,
1998; February 1, 2006; and July 17, 2006. The pending SIP revisions
are summarized in Tables 1 and 2 below. Additional information is
included in the Technical Support Document (TSD) for this action, which
is in the docket.
Table 1--Summary of Pending SIP Submittals Addressed in This Action
----------------------------------------------------------------------------------------------------------------
Date
Date Date effective Sections related to emergency
Description of SIP submittal submitted adopted by as State orders
to EPA State rule
----------------------------------------------------------------------------------------------------------------
Original Recodification of Chapter 116.... 8/31/1993 8/16/1993 9/13/1993 Chapter 116: Submittal of
sections 116.410 through
116.418.
Emergency and Temporary Orders............ 12/10/1998 11/18/1998 12/10/1998 Chapter 35: Submittal of
sections 35.1-35.3, 35.11-
35.13, 35.21-35-30, and
35.801-35.809
Chapter 116: Revisions to
section 116.410; Repeal of
sections 116.411-116.418,
which were replaced by
sections 35.802-35.809
Federal New Source Review Permits Rules... 2/1/2006 1/11/2006 2/1/2006 Chapter 116: Recodification
of Sec. 116.410 to Sec.
116.1200.
Revision to Provisions for Emergency 7/17/2006 6/28/2006 7/19/2006 Chapter 35: Revisions to
Orders. sections 35.801, 35.802,
35.804, 35.805, 35,807, and
35.808.
----------------------------------------------------------------------------------------------------------------
[[Page 8078]]
Table 2--Summary of the Individual Revisions to Each Section Evaluated
----------------------------------------------------------------------------------------------------------------
Date Effective
Section--title submitted Adopted by as State Comments
to EPA State rule
----------------------------------------------------------------------------------------------------------------
30 TAC Chapter 35--Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permits
Conditions
================================================================================================================
Subchapter A--Purpose, Applicability, and Definitions
----------------------------------------------------------------------------------------------------------------
Section 35.1--Purpose..................... 12/10/1998 11/18/1998 12/10/1998 Initial adoption.
Section 35.2--Applicability............... 12/10/1998 11/18/1998 12/10/1998 Initial adoption.
Section 35.3--Definitions................. 12/10/1998 11/18/1998 12/10/1998 Initial adoption.
----------------------------------------------------------------------------------------------------------------
Subchapter B--Authority of the Executive Director
================================================================================================================
Section 35.11--Purpose and Applicability........................................................................
Section 35.12--Authority of the Executive Director..............................................................
Section 35.13--Eligibility of the Executive Director............................................................
----------------------------------------------------------------------------------------------------------------
Subchapter C--General Provisions
================================================================================================================
Section 35.21--Action by the Commission or Executive Director...................................................
Section 35.22--Term and Renewal of Orders.......................................................................
Sec. 35.23--Effect of Orders..................................................................................
Section 35.24--Application for Emergency or Temporary Orders....................................................
Section 35.25--Notice and Opportunity for Hearing...............................................................
Section 35.26--Contents of Emergency or Temporary Orders........................................................
Section 35.27--Hearing Required.................................................................................
Section 35.28--Hearing Requests.................................................................................
Sec. 35.29--Procedures for a Hearing..........................................................................
Section 35.30--Application Fees.................................................................................
----------------------------------------------------------------------------------------------------------------
Subchapter K--Air Orders \1\
================================================================================================================
Section 35.801--Emergency Orders Because of Catastrophe.........................................................
Sec. Sec. 35.802--Application for an Emergency Order.........................................................
Section 35.803--Public Notification.............................................................................
Section 35.804--Issuance of an Emergency Order..................................................................
Section 35.805--Contents of an Emergency Order..................................................................
Section 35.806--Requirement to Apply for a Permit or Modification...............................................
Section 35.807--Affirmation of an Emergency Order...............................................................
[[Page 8079]]
Section 35.808--Modification of an Emergency Order..............................................................
Section 35.809--Setting Aside an Emergency Order................................................................
----------------------------------------------------------------------------------------------------------------
30 TAC Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Section 116.1200--Applicability........... 8/31/1993 8/16/1993 9/13/1993 Initial adoption as section
116.410.
12/10/1998 11/18/1998 12/10/1998 Revised introductory
paragraph.
2/1/2006 1/11/2006 2/1/2006 Redesignated to section
116.1200.
----------------------------------------------------------------------------------------------------------------
In general, the regulations governing Emergency Orders are found in
30 TAC Chapter 35--Emergency and Temporary Orders and Permits;
Temporary Suspension or Amendment of Permit Conditions. These
regulations provide the process by which the Texas Commission on
Environmental Quality (TCEQ) may issue a Temporary Order, Emergency
Order, Mandatory Order, Permissive Order, and Prohibitory Order and
include provisions that apply to both air orders and non-air orders. As
part of this action, we are reviewing only those portions that are
applicable to the issuance of air Emergency Orders. Under the CAA, SIPs
can only include provisions addressing criteria pollutants and their
precursors, so the portions of the Texas submittals related to non-air
orders cannot be included in the SIP. Therefore, EPA is returning the
non-air portions of the aforementioned submittals to the State.
---------------------------------------------------------------------------
\1\ On August 18, 1993, sections 116.411 through 116.418 were
adopted under Chapter 116, Subchapter E--Emergency Orders. On
November 18, 1998, these regulations were replaced with sections
35.802 through 35.809 and placed in Chapter 35, Subchapter K.
---------------------------------------------------------------------------
Under the provisions in 30 TAC Chapter 35, the TCEQ may issue an
Emergency Order under its air quality program which authorizes
immediate action for the addition, replacement, or repair of
facilities, control equipment, or the repair or replacement of roads,
bridges, and other infrastructure whenever a catastrophe necessitates
such construction and emissions otherwise precluded under the Texas
Clean Air Act. See 30 TAC 35.801. Additional information on these
regulations, and the specific provisions included in the regulations,
is provided in TSD for this action.
Today, EPA proposes to disapprove the regulations identified in
Table 2 above, except for provisions that do not relate to the air
quality requirements of the Act. EPA is returning the following non-air
portions of the submitted rules to the State: 30 TAC 35.13; 35.24(b)
and (e)(6)-(7); and 35.25(e)(1)-(8) and (11)-(15). While we are
proposing disapproval of the Emergency Orders Program, EPA does
recognize the merits of such a state-only Program that allows for
application review and order issuance to authorize proposed actions
following catastrophes that often necessitate immediate action by
owners and operators to minimize additional downstream impacts
resulting from the catastrophe. Texas's Emergency Orders Program does
allow for coordination between the source and the TCEQ to facilitate
expedited review while maintaining a review process, as described in
the June 17, 2006 SIP submittal. Other State and local agencies operate
programs similar to the Emergency Orders program. In these cases, the
regulations containing the provisions related to those programs are
located within the states' air quality permitting regulations, not in
the SIP. EPA may exercise its enforcement discretion on a case-by-case
basis to evaluate the owner or operator's proposed action in response
to a catastrophe and utilizes enforcement discretion to allow for
appropriate immediate actions to minimize impacts and restore the
sources to full operation.
II. What is EPA's evaluation of the Texas Emergency Orders Program?
A. Does the Emergency Orders Program meet the requirements for projects
that are subject to New Source Review (NSR)?
The Emergency Orders Program could be used to authorize
construction via the issuance of an Order prior to a source submitting
an application for a NSR preconstruction permit. The issued Emergency
Order is an interim authorization for the emissions of air contaminants
that are associated with the construction or modification of any source
or facility in response to a catastrophe, as defined in 30 TAC 35.801.
Under the Emergency Orders Program, an owner or operator can apply for
an Emergency Order that would ``authorize immediate action for the
addition, replacement, or repair of facilities or control equipment, or
the repair or replacement of roads, bridges, or other infrastructure,
and authorizing associated emissions of air contaminants.'' See 30 TAC
35.801.
[[Page 8080]]
1. Summary of the Federal Program for Major NSR
The requirements for Major NSR are in Title I, Parts C and D of the
CAA and in 40 CFR 51.165 and 51.166 and apply to the construction and
modification of major stationary sources. The Major NSR requirements
apply to projects that would be new major stationary sources and
projects that would be major modifications under the requirements for
Prevention of Significant Deterioration (PSD) under 40 CFR 51.166 and
the requirements for Nonattainment Area New Source Review (NNSR) under
40 CFR 51.165.
The requirements for Major NSR apply to the construction or
modification of stationary sources which emit, or have the potential to
emit a regulated NSR pollutant at greater than 100 tons per year for
most stationary sources. See CAA Sec. 302(j).\2\ Major NSR is required
under two programs as described below:
---------------------------------------------------------------------------
\2\ In certain nonattainment areas, the CAA specifies lower
thresholds based upon the degree of nonattainment. See CAA at
Sec. Sec. 182(c), (d), and (d); 187(c)(1); and 189(b)(3). See 40
CFR 51.165(a)(1)(iv). Also, in a PSD area, under the CAA Sec.
169(1), a major stationary source is either 100 tons per year or
more if the source belongs to a category identified in the
definition, otherwise it is major if it emits or has the potential
to emit 250 tons per year or more. See 40 CFR 51.166(b)(1).
---------------------------------------------------------------------------
Prevention of Significant Deterioration (PSD). The requirements for
PSD are under the CAA Title I, Part C and under 40 CFR 51.166. PSD
applies to the construction and modification of major stationary
sources for the emissions of any pollutant for which the region (or
portion thereof) is designated attainment or unclassifiable. See CAA at
Sec. 161 and 40 CFR 51.166(a)(7)(i). Requirements of the PSD
Permitting Program include the following:
The PSD permit must be issued prior to commencement of
construction and set forth emission limitations which conform to the
CAA. CAA Sec. 165(a)(1) and 40 CFR 51.166(a)(7).
The proposed permit has been subject to review in
accordance with CAA requirements and the regulations promulgated under
CAA, and the permit has been subject to public hearing and opportunity
for interested persons to submit comments. CAA Sec. 165(a)(2) and 40
CFR 51.166(a)(7) & (q).
The emissions from the construction or operation of the
source will not cause, or contribute to, air pollution in excess of the
following: (1) Maximum allowable increase or maximum allowable
concentration for any pollutant in any area in which PSD applies; (2)
National Ambient Air Quality Standard; and (3) Any other applicable
emission standard or standard of performance under the Act. CAA Sec.
165(a)(3) and 40 CFR 51.166(c).
The source is subject to best available control technology
and the permitted emissions represent that technology. CAA Sec.
165(a)(4) and 51.166(j).
The requirements for protection of Class I areas have been
met by the source. CAA Sec. 165(a)(5) and 40 CFR 51.166(p).
There has been an analysis of the air quality impacts
projected to occur as the result of growth associated with the source.
CAA Sec. 165(a)(6) and 40 CFR 51.166(o).
Monitoring has been conducted, as necessary, to determine
the effect which emissions from any such facility may have, or is
having, on air quality in any area which may be affected by emissions
from such source. CAA Sec. 165(a)(7) and 40 CFR 51.166(m).
Specific requirements applicable to source proposed to be
located in Class III areas have been met by the source. CAA Sec.
165(a)(8).
Nonattainment New Source Review (NNSR). The requirements for NNSR
are under the CAA Title I, Part D and under 40 CFR 51.165. NNSR applies
to the construction and modification of major stationary sources for
the emissions of any pollutant for which the region (or portion
thereof) is designated nonattainment. See CAA at Sec. 172(c)(5) and 40
CFR 51.165(a)(2)(i). Requirements of the NNSR Program include the
following:
Emission increases must be offset by reductions that are
greater than the increase. CAA Sec. 173(a)(1).
The proposed source is required to comply with lowest
achievable emission rate. CAA Sec. 173(a)(2).
The owner or operator must demonstrate that all major
stationary sources owned by such person (or entity) are in compliance,
or on a schedule for compliance, with all applicable emission
limitations and standards under the Act. CAA Sec. 173(a)(3).
EPA has not determined that the State is not adequately
implementing the SIP for the nonattainment area in which the proposed
source is to be constructed or modified. CAA Sec. 173(a)(4).
An analysis of alternative sites, sizes, production
processes, and environmental control techniques for such proposed
source demonstrates that benefits of the proposed source significantly
outweigh the environmental and social costs imposed as a result of its
location, construction, or modification. CAA Sec. 173(a)(5).
The PSD and NNSR Programs each require a new major stationary
source or major modification to obtain a preconstruction permit prior
to commencing construction. For PSD see CAA at Sec. 165(a)(1) and 40
CFR 51.166(a)(7)(iii). For NNSR see CAA Sec. 172(c)(5) and 40 CFR
51.165(a)(2)(i)-(iii). Accordingly, a new or modified major stationary
source or major modification may not be constructed without a permit
that meets the requirements of the applicable Major NSR Program.
2. What is EPA's evaluation?
As discussed in detail in the TSD for this action, in the July 17,
2006 SIP submittal TCEQ characterizes its Emergency Orders Program as a
program which ``contemplate(s) and call(s) for a comprehensive
technical review.'' However, notwithstanding the fact that TCEQ states
that the ``comprehensive review'' for an Emergency Order is at least as
comprehensive as the TCEQ's review of permit applications, the
Emergency Orders Program does not meet all the requirements applicable
to NSR. Specifically, the issuance of Emergency Orders to projects that
are subject to Major NSR fail to meet the requirements of the Clean Air
Act and the implementing regulations as follows:
The Emergency Orders Program does not satisfy the public
participation required for NSR at the time the Emergency Order is
issued. Public participation requirements that are applicable to
projects that are subject to Major NSR are not met prior to the
issuance of the Emergency Order, which would authorize the construction
of such projects. Instead, the applicable public participation for
Major NSR projects will take place after the issuance of the Emergency
Order when the applicant submits their application for a Major NSR
permit. The source has 60 days following the issuance of the Emergency
Order to submit the permit application. See 30 TAC 35.806. Meanwhile,
the applicant is authorized by the Emergency Order to begin
construction of the Major NSR project prior to permit application
submission and permit issuance. Consequently, the public is not
afforded an opportunity to review and comment on the proposed project
(as required under the CAA and implementing regulations) until after
construction has begun; thus the public has not been provided
meaningful opportunity to participate prior to commencement of
construction of the Major NSR project. See 40 CFR 51.161
[[Page 8081]]
and 51.166(q). It is important to note, that while we are evaluating
the Emergency Orders Program against the Major NSR requirements, the
Minor NSR Program also requires public participation as part of the
construction permitting process.\3\
---------------------------------------------------------------------------
\3\ The Minor NSR requirements for public participation are
found at 40 CFR 51.161, and require prior to construction or
modification the availability for public inspection of information
regarding the construction (including the State's analysis of the
effect on air quality), a 30-day period for submittal of public
comment, and a notice by prominent advertisement in the area
affected. EPA recognizes a state's ability to tailor the scope of
its Minor NSR program as necessary to achieve and maintain the
NAAQS. See 77 FR 74140.
---------------------------------------------------------------------------
The Emergency Orders Program does not meet the requirement
that a NSR permit be issued prior to the commencement of construction
of a Major Source. The CAA contemplates a Major NSR permit that is
issued as a final authorization that certifies that the Major NSR
permit meets all the requirements of PSD and NNSR. See CAA at section
165(a) and 173(a) and 40 CFR 51.165(a)(2)(i) through (ii), and
51.166(a)(7)(i) through (v). In contrast, the Emergency Order is an
interim authorization for immediate action, including construction,
following a catastrophe and is not a final issued Major NSR permit.
Notwithstanding the fact that the TCEQ conducts a review of Emergency
Order applications, which TCEQ characterized as being equivalent to the
technical review of a permit, as discussed above, the technical review
does not include all required preconstruction review elements and the
issued order is an interim authorization and not a final issued Major
NSR permit. The Emergency Orders Program does require that a source
submit an application for any necessary air permits, including Major
NSR permits, within 60 days following the issuance of an Emergency
Order. See 30 TAC 35.806. These permits are required to be applied for
and issued in accordance with the applicable New Source Review
requirements. However, the New Source Review permitting would occur
following the commencement of construction at the source. Therefore,
the Emergency Orders Program does not meet the CAA requirement that the
Major NSR permit be issued prior to a source commencing construction.
For PSD see CAA at Sec. 165(a)(1) and 40 CFR 51.166(a)(7)(iii). For
NNSR see CAA Sec. 172(c)(5) and 40 CFR 51.165(a)(2)(i)-(iii).
Based on our review of the Emergency Orders Program, which includes
authorizations of NSR actions, and comparison with the applicable
requirements for Major NSR, we are proposing to disapprove the Program
on the basis that it does not meet all applicable requirements. While
we are proposing disapproval of the Emergency Orders Program, EPA would
like to recognize the merits of having a state-only Program that allows
for application review and order issuance to authorize proposed actions
following catastrophes that often necessitate immediate action by
owners and operators to minimize additional downstream impacts
resulting from the catastrophe. Texas's Emergency Orders Program does
allow for coordination between the source and the TCEQ to facilitate
expedited review while maintaining a review process, as described in
the June 17, 2006 SIP submittal.
Other State and local agencies operate programs similar to the
Emergency Orders Program to allow for the authorization of owners and
operators to take immediate actions, including construction, following
catastrophes that include natural disasters, such as hurricanes,
floods, and earthquakes, and plant fires or explosions. In these cases,
the regulations containing the provisions related to the program
operated by the State or local agency are located within the states'
air quality permitting regulations, not in the SIP, and EPA may
exercise enforcement discretion on a case-by-case basis to evaluate the
owner or operators' proposed actions in response to catastrophe. For
example, in 2005, the EPA Region 6 office utilized enforcement
discretion to allow facilities impacted by Hurricane Rita to take
appropriate immediate actions to bring the sources back up to full
operation and minimize additional impacts resulting from the
catastrophe. In this case, EPA issued Administrative Compliance Orders
after conducting case-by-case review of the proposed actions at a
particular facility.4 5 More recently, EPA has exercised
enforcement discretion in response to the impacts caused by Hurricane
Sandy in both Regions 1 and 2. Following this natural disaster, EPA
issued a No Action Assurance to allow loading and unloading of fuel at
bulk gasoline and marine loading terminals and associated truck loading
racks in New York and New Jersey without the required vapor recovery/
combustion if the facility was not equipped with this control equipment
or the equipment had been damaged by Sandy.\6\ EPA exercised its
enforcement discretion by issuing a No Action Assurance to address
severe fuel shortages resulting from Hurricane Sandy's impacts. In each
of the examples here, and in fact in any disaster situation, EPA has
acted very quickly to gather facts and take appropriate action, so that
critical systems are not impeded from operating as a result of the
catastrophe.
---------------------------------------------------------------------------
\4\ Administrative Compliance Order dated September 28, 2005
issued by the EPA Region 6 Compliance Assurance and Enforcement
Division to Georgia Pacific for the Port Hudson facility.
\5\ Administrative Compliance Order dated November 17, 2005
issued by the EPA Region 6 Compliance Assurance and Enforcement
Division to the Municipality of Chambers County.
\6\ No Action Assurance dated November 2, 2012 issued by the EPA
Assistant Administrator to the states of New York and New Jersey.
Available at: https://www.epa.gov/enforcement/air/documents/policies/mobile/naa-vaporrecovery.pdf.
---------------------------------------------------------------------------
While we are proposing disapproval of the Emergency Orders Program
on the basis that the Program does not meet the necessary federal
requirements for approval into the Texas SIP, this proposed action will
not impact how the TCEQ has been operating the Program in response to
catastrophes since the Program's original adoption into the State's
regulations in August 1993. EPA will continue to exercise enforcement
discretion on a case-by-case basis for actions proposed by sources in
Texas in response to catastrophes, while the TCEQ continues to rely
upon the technical review process provided by the Emergency Orders
Program to ensure that the proposed actions are consistent with the
applicable State requirements and will not interfere with the
attainment or maintenance of national ambient air quality standards or
violate applicable portions of the control strategy.
III. Proposed Action
Under section 110(k)(3) of the Act, and for the reasons stated
above, EPA proposes to disapprove the following revisions to the Texas
SIP.
New 30 TAC 35.1--Purpose--submitted December 10, 1998.
New 30 TAC 35.2--Applicability--submitted December 10,
1998.
New 30 TAC 35.3--Definitions--submitted December 10, 1998.
New 30 TAC 35.11--Purpose and Applicability--submitted
December 10, 1998.
New 30 TAC 35.12--Authority of the Executive Director--
submitted December 10, 1998.
New 30 TAC 35.21--Action by the Commission or Executive
Director--submitted December 10, 1998.
New 30 TAC 35.22--Term and Renewal of Orders--submitted
December 10, 1998.
New 30 TAC 35.23--Effect of Orders--submitted December 10,
1998.
New 30 TAC 35.24--Application for Emergency or Temporary
Orders--
[[Page 8082]]
submitted December 10, 1998. No action is proposed on subsection (b)
and paragraphs (e)(6)-(7) which are outside the scope of the SIP.
New 30 TAC 35.25--Notice and Opportunity for Hearing--
submitted December 10, 1998. No action is proposed on paragraphs
(e)(1)-(8) and (11)-(15) which are outside the scope of the SIP.
New 30 TAC 35.26--Contents of Emergency or Temporary
Order--submitted December 10, 1998.
New 30 TAC 35.27--Hearing Required--submitted December 10,
1998.
New 30 TAC 35.28--Hearing Requests--submitted December 10,
1998.
New 30 TAC 35.29--Procedures for a Hearing--submitted
December 10, 1998.
New 30 TAC 35.30--Application Fees--submitted December 10,
1998.
New 30 TAC 35.801--Emergency Orders Because of a
Catastrophe--submitted December 10, 1998; revision submitted July 17,
2006.
New 30 TAC 35.802--Applications for an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.411); revision submitted
December 10, 1998 (as redesignated to 30 TAC 35.802); revision
submitted July 17, 2006.
New 30 TAC 35.803--Public Notification--submitted August
31, 1993 (as 30 TAC 116.412); and revision submitted December 10, 1998
(as redesignated to 30 TAC 35.803).
New 30 TAC 35.804--Issuance of an Emergency Order--
submitted December 10, 1998; revision submitted July 17, 2006.
New 30 TAC 35.805--Contents of an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.415); revision submitted
December 10, 1998 (as redesignated to 30 TAC 35.805); revision
submitted July 17, 2006.
New 30 TAC 35.806--Requirement to Apply for a Permit or
Modification--submitted August 31, 1993 (as 30 TAC 116.416); revision
submitted December 10, 1998 (as redesignated to 30 TAC 35.806).
New 30 TAC 35.807--Affirmation of an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.414); revision submitted
December 10, 1998 (as redesignated to 30 TAC 35.807); revision
submitted July 17, 2006.
New 30 TAC 35.808--Modification of an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.417); revision submitted
December 10, 1998 (as redesignated to 30 TAC 35.808); revision
submitted July 17, 2006.
New 30 TAC 35.809--Setting Aside an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.418); revision submitted
December 10, 1998 (as redesignated to 30 TAC 35.809).
New 30 TAC 116.1200--Applicability--submitted August 31,
1993 (as 30 TAC 116.411); revisions submitted December 10, 1998;
revision submitted February 1, 2006 (as redesignated to 30 TAC
116.1200).
IV. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because this proposed SIP disapproval under section 110 and subchapter
I, part D of the Clean Air Act will not in-and-of itself create any new
information collection burdens but simply disapproves certain State
requirements for inclusion into the SIP. Burden is defined at 5 CFR
1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 and subchapter I, part D of
the Clean Air Act will not in-and-of itself create any new requirements
but simply disapproves certain State requirements for inclusion into
the SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. The fact that
the Clean Air Act prescribes that various consequences (e.g., higher
offset requirements) may or will flow from this disapproval does not
mean that EPA either can or must conduct a regulatory flexibility
analysis for this action. Therefore, this action will not have a
significant economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 ``for State, local, or tribal governments or the private
sector.'' EPA has determined that the proposed disapproval action does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This action proposes to
disapprove pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national
[[Page 8083]]
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132, because it merely disapproves certain State
requirements for inclusion into the SIP and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. Thus, Executive Order 13132 does not
apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (59 FR 22951, November 9, 2000), because the SIP
EPA is proposing to disapprove would not apply in Indian country
located in the State, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997).This proposed SIP disapproval under section 110 and subchapter I,
part D of the Clean Air Act will not in-and-of itself create any new
regulations but simply disapproves certain State requirements for
inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices, based on the criteria
of the Clean Air Act. Accordingly, this action merely proposes to
disapprove certain State requirements for inclusion into the SIP under
section 110 and subchapter I, part D of the Clean Air Act and will not
in-and-of itself create any new requirements. Accordingly, it does not
provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Carbon monoxide, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 28, 2013.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2013-02499 Filed 2-4-13; 8:45 am]
BILLING CODE 6560-50-P
