Approval and Promulgation of Air Quality Implementation Plans; Texas; Revisions To Control Volatile Organic Compound Emissions; Volatile Organic Compound Control for El Paso, Gregg, Nueces, and Victoria Counties and the Ozone Standard Nonattainment Areas of Beaumont/Port Arthur, Dallas/Fort Worth, and Houston/Galveston

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving certain control measures adopted by the State of Texas on the following dates: September 7, 2001, July 18, 2002, January 28, 2003, November 7, 2003, and December 17, 2004. The effect of this action is to finalize the proposed approval of these measures published on September 28, 2006 in the Federal Register (71 FR 56920) because they enhance the Texas VOC Reasonably Available Control Technology (RACT) State Implementation Plan (SIP) by improving volatile organic compound (VOC) emission controls in Texas. This action is being taken under Section 110(l) and part D of the Clean Air Act.

DATES:

This rule will be effective on March 28, 2008.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2005-TX-0015. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Planning Section (6PD-L), 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 FOIA 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 cents 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.

FOR FURTHER INFORMATION CONTACT:

Ellen Belk, Air Planning Section, (6PD-L), Environmental Protection Agency (EPA), Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone number: (214) 665-2164; fax number: (214) 665-7263; e-mail address: belk.ellen@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Comments Received on EPA's Proposal and EPA's Response

III. Final Action

IV. Statutory and Executive Order Reviews

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us, or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words State or Texas mean the State of Texas, unless the context indicates otherwise.

I. Background

On September 7, 2001, July 18, 2002, January 28, 2003, November 7, 2003, and December 17, 2004, the State of Texas submitted revised rules for incorporation into the Texas VOC RACT SIP. The SIP revisions include additions and amendments to Title 30 of the Texas Administrative Code, Chapter 115, Control of Air Pollution from Volatile Organic Compounds (30 TAC 115).

The State of Texas adopted these rules as revisions to the approved SIP. The State rules (1) add new requirements to control VOC emissions from industrial wastewater systems in El Paso County, the Beaumont/Port Arthur and Houston/Galveston 8-hour ozone standard nonattainment areas, and four counties in the Dallas/Fort Worth 8-hour ozone standard nonattainment area: Collin, Dallas, Denton, and Tarrant Counties, and (2) amend requirements to identify and correct emissions from VOC leaks from facilities that refine petroleum or process natural gas, gasoline or petrochemicals in these areas and from petroleum refineries in Gregg, Nueces, and Victoria Counties.

On September 28, 2006, we published (1) a direct final rule approving revisions to Texas regulations to control VOC emissions and making ministerial corrections to the table in 40 CFR 52.2270(c) (71 FR 56872) and (2) a proposal for the rule (71 FR 56920). The rule and proposal stated that if any relevant adverse comments were received by the end of the public comment period on October 30, 2006, the direct final rule would be withdrawn and we would respond to the comments in a subsequent final action. Relevant adverse comments were received during the comment period, and the direct final rule was withdrawn on November 21, 2006 (71 FR 67311). Our September 28, 2006 proposal (71 FR 56920) provides the basis for today's final action.

II. Comments Received on EPA's Proposal and EPA's Response

EPA received one letter commenting on the September 28, 2006, direct-final rule and proposal. The comments in the letter can be placed in two categories: (1) Comment on leak repair, and (2) comment on monitoring.

(1) Comment on Leak Repair

Comment: The commenter stated that, while there are a number of provisions strengthening controls of VOC monitoring and reporting requirements in the proposal, there are also a number of provisions that appear to weaken controls, and was concerned that these provisions may result in the emission of additional VOCs, thereby further jeopardizing reaching attainment in ozone nonattainment areas. The commenter was concerned the provisions allowing additional time for leak repair in situations involving installation of improved technologies may result in significant emissions during the repair delay. The specific revision of concern discussed fugitive emission control requirements for delay of leak repairs (30 TAC 115.352). The commenter stated that “While the goal of this provision appears to be encouraging installation of improved technologies to prevent future leaks, * * * VOC emissions during the repair delay could be significant.”

Response: EPA agrees with the commenter that these rules include a number of provisions improving controls of volatile organic compounds, monitoring and reporting requirements, but disagrees with the commenter that the revisions may result in increased VOC emissions that jeopardize attainment. To the contrary, the revisions do not weaken controls but provide for a more focused and targeted approach in the VOC inspection and monitoring program taking into account safety and better monitoring methods. The provisions allow delay of repair for pumps, compressors, or agitators when an owner/operator chooses to replace existing seal designs with upgraded technologies (30 TAC 115.352(2)(C)). When the repair of a pump, compressor, or agitator will include an upgraded seal design, the repair must be completed as soon as practicable, but not later than six months after the leak is detected. Overall, this revision will result in fewer and smaller leaks by winnowing out components that repeatedly leak. EPA's guidelines for New Source Performance Standards and RACT allow for delay of repair, recognizing the value of replacement of components that repeatedly leak. It is recognized in the field that individual leaks are not likely to become excessive due to considerations of safety and product loss. Companies that choose to replace repeatedly leaking components with the upgraded seal technologies that do not continually leak will be able to have the time to install the better, more effective technology that results in fewer emissions in the long term, as opposed to quickly repairing the equipment and continuing operation with less effective methods of preventing leaks.

(2) Comment on Monitoring

Comment: The commenter was concerned about the revisions to monitoring requirements for flanges, and questioned whether the provisions for monitoring were a relaxation. The specific revision of concern addressed monitoring for leaks (30 TAC 115.354 and 115.357) in petroleum refining and petrochemical processing facilities. The commenter was concerned that this revision relaxes monitoring requirements and will allow VOC emissions to go undetected.

Response: The monitoring provisions for flanges allow flanges to be excluded from weekly sight, sound, or smell inspection requirements if they are monitored at least once each calendar year using EPA Method 21, or if they are unsafe to inspect. If a flange is not safe to inspect, then it must be inspected as soon as possible during a time that it is safe to inspect. Annual monitoring of flanges with EPA Method 21 is better for detecting leaks than weekly visual, audible, and/or olfactory inspections since it is more sensitive and accurate in identifying VOC leaks. The Method 21 instrument will detect not only the leaks likely to be detected by sight, sound, and smell, but also smaller leaks which may have previously been undetected by sight, sound, and smell.

Overall, greater emission reductions are expected as a result of annual monitoring with Method 21. Test Method 21 is a long established, reproducible method which allows for the use of new technologies as it does not mandate the use of a specific instrument. Safety requirements are an inherent aspect of this Method. The Method identifies the reagents, standards, and the calibration performance evaluation procedures. The Method has been in use since May 1981. Method 21 includes requirements for sample collection, preservation, storage, custody, and transport requirements for reproducibility purposes that enhance both the detection and enforcement aspects of the program. The Method contains quality control measures that will ensure precision and accuracy of instrument response to reference standard. For these reasons, EPA disagrees that the monitoring provisions are a relaxation of the rule. These monitoring provisions encourage facilities to use the more sensitive and more accurate Method 21 for inspecting for leaks, which will lead to better leak detection and consequently, to reduced emissions.

III. Final Action

We have carefully considered the comments received and still believe we should approve the SIP revisions submitted by Texas. The revisions enhance VOC emission controls. The control of VOC emissions will help to attain and maintain the 8-hour national ambient air quality standard (NAAQS) for ozone in Texas. Our approval of the revisions will not interfere with any applicable requirement concerning attainment or any other applicable requirement of the CAA in compliance with the requirements of section 110(l) of the CAA. Under section 110(l) EPA may not approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment or any other applicable requirement of the CAA, including RACT. This approval will make the revised regulations federally enforceable. EPA is approving the SIP revisions included in the submittals by the State of Texas on (1) September 7, 2001, (2) July 18, 2002, (3) January 28, 2003, (4) November 7, 2003, and (5) December 17, 2004, pertaining to control of VOC emissions. These SIP revisions were adopted by the State of Texas on the following dates: (1) August 8, 2001, (2) April 26, 2002, (3) December 13, 2002, (4) October 22, 2003, and (5) December 1, 2004.

We are also making ministerial corrections to the table in 40 CFR 52.2270(c) to reflect accurately previous approved SIP submittal dates, Federal Register citations of EPA action and EPA approved State regulations. The ministerial corrections revise the table entries for sections 115.125, 115.146, 115.148, 115.162, 115.163, 115.164, and 115.165 to reflect EPA approval of these State regulations on December 20, 2000 (65 FR 79745) and July 16, 2001 (66 FR 36913). Table entries for section 115.332 to 115.339, and section 115.342 to 115.349 are being removed to reflect EPA approval of the repeal of these State regulations on January 26, 1999 (64 FR 3841).

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason and because this action will not have a significant, adverse effect on the supply, distribution, or use of energy, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Because this rule merely approves a state rule implementing a Federal standard, EPA lacks the discretionary authority to modify today's regulatory decision on the basis of environmental justice considerations.

In reviewing SIP submissions under the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note), EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 28, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen oxides
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

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

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart SS—Texas

2. The table in § 52.2270(c) entitled “EPA Approved Regulations in the Texas SIP” is amended under Chapter 115 (Reg 5) as follows:

a. By revising Subchapter B—General Volatile Organic Compound Sources.

b. By revising Subchapter D—Petroleum Refining and Petrochemical Processes.

c. By revising Subchapter F—Miscellaneous Industrial Sources.

d. By revising Subchapter J—Administrative Provisions.

The amendments read as follows: