Approval and Promulgation of Implementation Plans; Texas; Control of Emissions of Nitrogen Oxides (NOX

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is finalizing approval of rules for the control of NO_X emissions into the Texas State Implementation Plan (SIP). Texas submitted this SIP revision to us on May 30, 2007 (May 30, 2007 SIP revision), and we proposed approval of the May 30, 2007 SIP revision on July 11, 2008. The May 30, 2007 SIP revision to the Texas SIP is a substantive and non-substantive recodification and reformatting of the NO_X rules currently approved in the Texas SIP, and also includes a part of the Nitrogen Oxides (NO_X) reductions needed for the Dallas/Forth Worth (D/FW) area to attain the Federal 8-hour ozone National Ambient Air Quality Standard (NAAQS). Today's final rulemaking covers four separate actions. First, we are approving the repeal, from the Texas SIP, of the current Chapter 117 rules that correspond to the re-codified new rules and the revised and reformatted rules because the reformatted revision will better accommodate future additions/revisions to the rules. Second, we are approving revisions to the Texas SIP that add new controls for the D/FW major NO_X point sources. We are not, however, taking action on the Texas rules for cement plants in this document. We proposed approval of the rules for cement plants in a separate Federal Register document. Third, we are approving revisions to the Texas SIP that add new controls for D/FW minor NO_X sources. Fourth, we are approving revisions to the Texas SIP that add new controls for combustion sources in East Texas. These NO_X reductions will assist the D/FW area to attain the 8-hour ozone NAAQS. We are approving all of these actions as meeting the requirements of section 110 and part D of the Federal Clean Air Act (the Act).

DATES:

This rule will be effective on January 2, 2009.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2007-0523. 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 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 through 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 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.

FOR FURTHER INFORMATION CONTACT:

Mr. Alan Shar, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6691, fax (214) 665-7263, e-mail address shar.alan@epa.gov.

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. Background

A. What actions are we approving?

B. What is the relationship between the May 30, 2007 SIP revision and the ozone attainment demonstration plan for the D/FW area?

C. What sections of the May 30, 2007, SIP revision will become part of Texas SIP?

D. What sections of the May 30, 2007, SIP revision will not become part of Texas SIP?

E. What sections of the May 30, 2007, SIP revision are we reviewing in another Federal Register action?

F. What Counties in the D/FW area will the May 30, 2007, SIP revision affect?

G. What Counties in East and Central Texas will the May 30, 2007, SIP revision affect?

H. What are NO_X?

I. What is Ozone, and why do we regulate it?

J. What is a SIP?

K. What are the NO_X emissions requirements for point sources in the D/FW area that we are approving?

L. What are the NO_X emission requirements for stationary diesel engines in the D/FW area that we are approving?

M. What are the NO_X emissions specifications for minor sources of NO_X in the D/FW area that we are approving?

N. What are the NO_X emissions requirements for stationary reciprocating internal combustion engines (RICE) in East Texas that we are approving?

O. What are the NO_X emissions requirements for state-wide water heaters, small boilers, and process heaters that we are approving?

P. What are the compliance schedules for NO_X emissions sources that we are approving?

II. Final Action

III. Statutory and Executive Order Reviews

I. Background

A. What actions are we approving?

On May 30, 2007, TCEQ submitted rule revisions to 30 TAC, Chapter 117, “Control of Air Pollution from Nitrogen Compounds,” as a revision to the Texas SIP for point sources of NO_X (May 30, 2007 SIP revision). The State of Texas submitted the May 30, 2007 SIP revision to us, to, among other things, provide a portion of the NO_X reductions needed for the D/FW area to attain the Federal 8-hour ozone NAAQS.

On July 11, 2008 (73 FR 39900) we proposed approval of the May 30, 2007 SIP revision. The public comment period for our proposal expired on August 11, 2008.

We received relevant comments from TCEQ on our July 11, 2008 (73 FR 39900) publication, correcting or clarifying some of the citations used in our proposed approval document. We appreciate the State's input, and have accordingly corrected those citations in today's final document. See our Technical Support Document (TSD) prepared in conjunction with today's final action for more information.

We received no other comments on our proposed approval of the May 30, 2007 SIP revision. Therefore, we are finalizing our July 11, 2008 proposal (73 FR 39900), except section 117.9810, rulemaking action, today. We will act on section 117.9810 in a separate rulemaking action in future . We are taking four separate actions in today's final action.

First, we are approving revisions which involve repealing the current Chapter 117 rules from Texas SIP, and simultaneously approving into the Texas SIP, a new reformatted Chapter 117. We are approving the repeal of the current Chapter 117, and the recodification and reformatting of Chapter 117 because the reformatted revision will better accommodate future additions/revisions to the rules and will maintain consistency between the State rules and Federal SIP. We are approving all of the non-substantive reformatted, restructured, renumbered, reorganized, and administrative revisions to the wording of Chapter 117 into Texas SIP. In our proposal, we clarified that the specifically identified rules do not make any changes to the substance of the rules that we previously approved into the Texas SIP, Chapter 117. By approving the repeal of the current Chapter 117 from the Texas SIP, and approving the new Chapter 117's rules into the Texas SIP, we are making it clear that the new rules replace the previous rules in their entirety. We are approving these non-substantive reformatted, restructured, renumbered, reorganized, and administrative revisions to the wording of Chapter 117 under section 110 and part D of the Act. For a full list of affected sections see section C of this document.

Second, we are approving revisions to the D/FW NO_X major point source rules. Sections 117.410(a), 117.410(b) and 117.310(b) contain substantive changes in the reformatted Chapter 117 rules that result in additional NO_X reductions. These reductions were not previously a part of EPA-approved Texas SIP, Chapter 117.

Third, we are approving revisions to the D/FW minor source rules for the control of NO_X. Section 117.2110(a) contains substantive changes in the reformatted Chapter 117 rules that result in additional NO_X reductions which will help the D/FW area to attain the 1997 8-hour ozone standard. These reductions were not previously a part of EPA-approved Texas SIP, Chapter 117.

Fourth, we are proposing to approve revisions to the rules for the control of NO_X emissions from combustion sources in East Texas. Section 117.3310(a) contains substantive changes in the reformatted Chapter 117 rules that result in significant NO_X emissions reductions. These reductions were not previously a part of EPA-approved Texas SIP, Chapter 117.

Sections F through P of this document contain more information concerning each of these four actions.

B. What is the relationship between the May 30, 2007 SIP revision and the ozone attainment demonstration plan for the D/FW area?

The resulting emissions reductions of NO_X, an ozone precursor, from this SIP revision will assist in bringing the D/FW area into attainment with the 1997 8-hour ozone NAAQS, and help with the maintenance of the 1997 ozone NAAQS in the East and Central parts of the State. The D/FW 8-hour ozone nonattainment area (Collin, Dallas, Denton, Tarrant, Ellis, Johnson, Kaufman, Parker, and Rockwall Counties) is designated nonattainment, and classified as a moderate 8-hour non-attainment area for ozone. See 69 FR 23857 published on April 30, 2004. We proposed approval of the D/FW 8-hour ozone attainment demonstration plan in a separate rulemaking action, and will consider relevant written comments received on the D/FW 8-hour ozone attainment demonstration plan in a separate Federal Register publication.

C. What sections of the May 30, 2007, SIP revision will become part of Texas SIP?

Table 1 below contains a summary list of the sections of 30 TAC, Chapter 117 that we proposed for approval, in our July 11, 2008 (73 FR 39900) rulemaking action, for point sources of NO_X to become part of the Texas SIP. Table 1 below includes both the sections with substantive changes and the nonsubstantive changes.

Although we proposed approval of the new section 117.9810 concerning Use of Emission Reductions Generated from the Texas Emissions Reduction Plan (TERP) in our July 11, 2008 publication, we are taking no action upon 117.9810 today. We will take rulemaking action on 117.9810 in a separate publication in future.

Please keep in mind that the tables in this document are not intended to be exhaustive, but rather to provide a guide for readers to generally understand which affected sources are likely to be required to comply with the NO_X control requirements in conjunction with today's rulemaking action. To determine whether or how your facility would be affected by this particular action, you should refer to the actual text of 30 TAC Chapter 117, and the June 8, 2007 issue of the Texas Register (32 TexReg 3206). You can find the entire TCEQ Chapter 117 rules at: http://www.tceq.state.tx.us/rules/indxpdf.html#117.

Our TSD prepared for the July 11, 2008 (73 FR 39900) proposal contained detailed discussion of each of the above changes, and why EPA believed they should be approved into Texas SIP. We are approving the above sections of Table 1 into Texas SIP.

D. What sections of the May 30, 2007, SIP revision will not become part of Texas SIP?

Per TCEQ's request the following sections, listed in Table 2 below, of the May 30, 2007, SIP revision will not become a part of the EPA-approved Texas SIP. As stated in our proposal these rules mainly pertain to the control of ammonia or carbon monoxide emissions which are not ozone precursors and therefore, these rules are not necessary components of the Texas SIP. The rules listed in Table 2 are not already in the current Texas SIP and EPA continues to agree with Texas that these rules can remain outside the SIP.

Although the above sections of 30 TAC Chapter 117 will not become a part of the Texas SIP, they will continue to remain enforceable at the State level. As stated elsewhere in this document, we are taking no action upon 117.9810 today. We will take rulemaking action on 117.9810 in a separate publication in future.

E. What sections of the May 30, 2007, SIP revision are we reviewing in another Federal Register action?

Table 3 below contains a listing of sections of the May 30, 2007, SIP revision that we are not finalizing in today's action. We will review and act upon the cement kiln related sections of the May 30, 2007 SIP revision in a separate rulemaking action.

F. What Counties in the D/FW area will the May 30, 2007, SIP revision affect?

Table 4 below lists the Counties in the D/FW 8-hour Ozne nonattainment area that will be affected by today's action.

G. What Counties in East and Central Texas will the May 30, 2007, SIP revision affect?

Table 5 below lists the Counties in the East and Central Texas that will be affected by today's action.

H. What are NO_X?

Nitrogen oxides belong to the group of criteria air pollutants. NO_X are produced from burning fuels, including gasoline and coal. Nitrogen oxides react with volatile organic compounds (VOC) to form ozone or smog, and are also major components of acid rain. For more information on NO_X see http://www.epa.gov/air/urbanair/nox/.

I. What is Ozone and why do we regulate it?

Ozone is a gas composed of three oxygen atoms. Ground level ozone is generally not emitted directly from a vehicle's exhaust or an industrial smokestack, but is created by a chemical reaction between NO_X and VOCs in the presence of sunlight and high ambient temperatures. Thus, ozone is known primarily as a summertime air pollutant. NO_X and VOCs are precursors of ozone. Motor vehicle exhaust and industrial emissions, gasoline vapors, chemical solvents and natural sources emit NO_X and VOCs. Urban areas tend to have high concentrations of ground-level ozone, but areas without significant industrial activity and with relatively low vehicular traffic are also subject to increased ozone levels because wind carries ozone and its precursors hundreds of miles from their sources.

Repeated exposure to ozone pollution may cause lung damage. Even at very low concentrations, ground-level ozone triggers a variety of health problems including aggravated asthma, reduced lung capacity, and increased susceptibility to respiratory illnesses like pneumonia and bronchitis. It can also have detrimental effects on plants and ecosystems.

J. What is a SIP?

The SIP is a set of air pollution regulations, control strategies, other means or techniques and technical analyses developed by the state, to ensure that the state meets the NAAQS. The SIP is required by section 110 and other provisions of the Act. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emissions inventories, monitoring networks, and modeling demonstrations. Each state must submit these regulations and control strategies to EPA for approval and incorporation into the Federally-enforceable SIP. Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin.

K. What are the NO_X emissions requirements for point sources in the D/FW area that we are approving?

We approved NO_X emissions specifications for stationary sources in 66 FR 15195 published March 16, 2001. In addition to requiring NO_X emissions control requirements for those sources, we are approving the following NO_X emissions requirements for the following affected sources with emissions greater than 50 Tons Per Year (TPY) in the D/FW 8-hour ozone nonattainment area. We have included the Chapter 117 citation for each source category in the Table 6 below for convenience purposes.

We are approving these NO_X emissions specifications under Part D of the Act because their resulting emissions reductions will assist Texas in demonstrating attainment of the 1997 8-hour ozone standard in the D/FW 8-hour ozone nonattainment area. Therefore, we are approving these requirements into the Texas SIP.

L. What are the NO_X emission requirements for stationary diesel engines in the D/FW area that we are approving?

This SIP revision requires reductions of NO_X emissions from stationary diesel engines in the D/FW area. The following Table 7 contains a summary of the NO_X emission specifications for stationary diesel engines in the D/FW area. We have included the Chapter 117 citation for each source category in the Table 7 below for convenience purposes.

Also see section 117.2110(a)(3) concerning stationary diesel engines at minor sources within the D/FW 8-Hour Ozone Nonattainment Area.

As stated in our July 11, 2008 (73 FR 39900) proposal, we are approving the above-listed NO_X emission requirements for diesel engines because they are in agreement with those found in 40 CFR 89.112, and EPA's Document Number 420-R-98-016 dated August 1998, titled “Final Regulatory Impact Analysis: Control of Emissions from Nonroad Diesel Engines.” In addition, the above-listed NO_X emission requirements for diesel engines are consistent with those we approved for similar units at Table VI of 66 FR 57230 published on November 14, 2001. We are therefore approving these NO_X emission requirements into the Texas SIP under Part D of the Act because their resulting emissions reductions will assist Texas in demonstrating attainment of the 8-hour ozone standard within the D/FW 8-hour ozone nonattainment area.

M. What are the NO_X emissions specifications for minor sources of NO_X in the D/FW area that we are approving?

These minor sources include stationary reciprocating internal combustion engines that are not a major source of NO_X (emit, when uncontrolled, less than 50 Tons Per Year (TPY) of NO_X). See sections 117.2100 and 117.2103 for more information.

As an alternative, a minor source from the Table 8 above located within the D/FW area and having an annual capacity factor of 0.0383 or less may choose emissions specification of 0.060 lb/MMBtu, instead. See 117.2110(a)(4).

The NO_X emissions requirements for the above-listed minor sources of NO_X and their resulting emissions reductions will assist in demonstrating attainment of the 8-hour ozone NAAQS within the D/FW 8-hour ozone nonattainment area. Therefore, we are approving these requirements into the Texas SIP.

N. What are the NO_X emissions requirements for stationary reciprocating internal combustion engines (RICE) in East Texas that we are approving?

The gas-fired stationary reciprocating internal combustion engines located in Anderson, Brazos, Burleson, Camp, Cass, Cherokee, Franklin, Freestone, Gregg, Grimes, Harrison, Henderson, Hill, Hopkins, Hunt, Lee, Leon, Limestone, Madison, Marion, Morris, Nacogdoches, Navarro, Panola, Rains, Robertson, Rusk, Shelby, Smith, Upshur, Van Zandt, or Wood Texas Counties are subject to these requirements. See section 117.3300 for more information. The following Table 9 contains NO_X emissions requirements and related information for these affected units.

On July 19, 2007 TCEQ announced implementation of Texas Senate Bill 2000, passed in 2007 by the 80th Texas Legislative Session. The Bill directs the TCEQ to develop an incentive grant program for the partial reimbursement of capital costs for installing nonselective catalytic reduction (NSCR) systems to reduce emissions of NO_X from existing stationary gas-fired rich-burn compressor engines. For more information see http://www.tceq.state.tx.us/implementation/air/rules/sb2003.html (URL dating July 20, 2007).

The NO_X emissions requirements for the stationary reciprocating internal combustion engines in East and Central Texas and their resulting emissions reductions will assist in demonstrating attainment of the 8-hour ozone NAAQS within the Houston-Galveston-Brazoria, D/FW, and Beaumont/Port Arthur areas. Furthermore, these reductions will contribute to the continued maintenance of the standard in the eastern half of the State of Texas, and they enhance the Texas SIP. Therefore, we are approving these requirements into the Texas SIP under part D, and sections 110 and 116 of the Act, respectively.

O. What are the NO_X emissions requirements for state-wide water heaters, small boilers, and process heaters that we are approving?

The water heaters, small boilers, and process heaters that use natural gas and have a rated capacity of 2 million Btu per hour or less are subject to these requirements. See 117.3200 and 117.3203 for more information. The following Tables 10 and 11 contain type and size categories, and NO_X emissions requirements for these affected units.

The size categories and NO_X emissions requirements for these affected units are similar to those in place in other parts of the country. In our proposal and the corresponding TSD we explained how the revised state-wide residential water heater NO_X emission requirements meet the requirements of section 110(l) of the Act. Therefore, we are finding that the revised state-wide residential water heater NO_X emission requirements meet section 110(l) of the Act. Thus, we are approving the state-wide NO_X emission requirements for water heaters, small boilers, and process heaters into the Texas SIP.

P. What are the compliance schedules for NO_X emissions sources that we are approving?

The following Table 12 contains a summary of the NO_X-related compliance schedules for major sources, utility generating units, and minor sources affected by the May 30, 2007 SIP revision. See sections 117.9000 through 117.9500 for more information.

Including these compliance dates, summarized in Table 12 above, in the rule provides for enforceability and practicability of the NO_X rule, and enhances the Texas SIP; therefore, we are approving them into the Texas SIP.

II. Final Action

Today, we are finalizing approval of revisions to the 30 TAC Chapter 117 into the Texas SIP. This rulemaking covers four separate actions. First, we are approving the repeal of all non-substantive changes to the SIP's Chapter 117 rules and the reformatting of current Chapter 117 because the reformatted revision will better accommodate future additions/revisions to the rules. Second, we are approving substantive revisions to the current NO_X SIP's Chapter 117 rules for D/FW NO_X major point sources. Third, we are approving substantive revisions to the current Texas SIP's Chapter 117 rules for D/FW minor sources of NO_X . Fourth, we are approving substantive revisions to the current Texas SIP's Chapter 117 rules for combustion sources in East Texas. These NO_X reductions will assist the D/FW area in attaining the 1997 8-hour ozone NAAQS. Today, we are not taking action on the cement kiln related provisions of Chapter 117, see sections E and D of this document. We are also not taking action on new section 117.9810, see section C of this document.

III. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act;
• 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 (59 FR 7629, February 16, 1994); and
• Does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to 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.

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 action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 2, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Hydrocarbons
• Incorporation by reference
• Intergovernmental relations
• Nitrogen oxide
• Reporting and recordkeeping requirements
• Volatile organic compounds

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

PART 52—[AMENDED]

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

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

Subpart SS—Texas

2. In § 52.2270 the entry for Chapter 117 (Reg 7)—Control of Air Pollution from Nitrogen Compounds in the table in paragraph (c) is revised to read as follows: