Approval and Promulgation of Implementation Plans; Texas; Electric Generating Facilities; and Major Stationary Sources of Nitrogen Oxides for the Dallas/Fort Worth Ozone Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving revisions to the Texas State Implementation Plan (SIP). The revisions concern two separate actions. First, we are approving revisions to the Texas Nitrogen Oxides (NO_X) rules for electric generating facilities in East and Central Texas. These new limits for electric generating facilities in East and Central Texas will contribute to attainment of the 1-hour ozone National Ambient Air Quality Standard (NAAQS) in the Houston/Galveston (H/GA), Dallas/Fort Worth (D/FW), and Beaumont/Port Arthur (B/PA) 1-hour ozone nonattainment areas. They will also contribute to continued maintenance of the standard in the eastern half of Texas and will strengthen the existing Texas SIP. Second, we are approving revisions to the Texas NO_X rules for major stationary sources in the D/FW 1-hour ozone nonattainment area. These new limits for stationary sources will contribute to attainment of the 1-hour ozone standard in the D/FW nonattainment area. The EPA is approving these revisions to regulate emissions of NO_X as meeting the requirements of the Federal Clean Air Act (the Act).

EFFECTIVE DATE:

This rule is effective on April 16, 2001.

ADDRESSES:

Copies of documents relevant to this action are available for public inspection during normal business hours at the following locations. Anyone wanting to examine these documents should make an appointment with the appropriate office at least two working days in advance.

Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

Texas Natural Resource Conservation Commission, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT:

Brooke Ivener, Air Planning Section (6PD), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7362.

SUPPLEMENTARY INFORMATION:

I. Background

1. What Are We Approving?

2. What Does the SIP Revision for Electric Generating Facilities in East and Central Texas Say?

3. What Does the SIP Revision for Major Stationary Sources in the D/FW Area Say?

4. What Are NO_X?

5. What Is a Nonattainment Area?

6. What Are Definitions of Major Sources for NO_X?

7. What Is a State Implementation Plan?

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

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

10. What Areas in Texas Will This Action Affect?

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

1. What Are We Approving?

On October 31, 2000, the EPA proposed to approve three revisions to the Texas SIP rules for the control of air pollution from nitrogen compounds, submitted by the State on April 30, 2000 (65 FR 64914): (1) Revisions to NO_X rules for electric generating facilities in East and Central Texas; (2) revisions to NO_X rules for major stationary sources in the D/FW 1-hour ozone nonattainment area; and (3) revisions to NO_X rules for cement kilns in East and Central Texas. Today, we are approving the revisions to the NO_X rules for electric generating facilities in East and Central Texas and the revisions to the NO_X rules for major stationary sources in the D/FW area as revisions to the Texas NO_X SIP. We are finalizing our approval at this time on these two rule revisions because we received no comments on them during the public comment period. We are not taking action at this time on the NO_X rules for cement kilns in East and Central Texas because we did receive comments on them. We will address these comments in a separate rulemaking.

Specifically, we are approving the following rule revisions with regards to utility electric generating facilities in East and Central Texas: New sections 117.131 concerning Applicability, 117.133 concerning Exemptions, 117.134 concerning Gas Fired Steam Generation, 117.135 concerning Emission Specification, 117.138 concerning System Cap, 117.141 concerning Initial Demonstration of Compliance, 117.143 concerning Continuous Demonstration of Compliance, 117.145 concerning Final Control Plan Procedures, 117.147 concerning Revision of Final Control Plan, 117.149 concerning Notification, Recordkeeping, and Reporting Requirements, 117.512 concerning Compliance Schedule for Utility Electric Generation in East and Central Texas; and a revision to the existing SIP-approved section 117.10 concerning Definitions. We are approving these rule revisions under part D of the Act because Texas is relying on these NO_X reductions to demonstrate attainment of the 1-hour ozone standard in the H/GA, B/PA, and D/FW 1-hour ozone nonattainment areas in the State of Texas. We are also approving these rule revisions under sections 110 and 116 of the Act because the State is relying upon the NO_X reductions to show continued maintenance of the standard in the eastern half of the State and they strengthen the existing Texas SIP. With regard to NO_X control measures for major stationary sources in the D/FW area, we are approving: Revised sections 117.104 concerning Gas-Fired Steam Generation, 117.106 concerning Emission Specifications for Attainment Demonstrations, 117.108 concerning System Cap, 117.115 concerning Final Control Procedures for Reasonably Available Control Technologies, 117.116 concerning Final Control Plan Procedures for Attainment Demonstration Emission Specifications, 117.205 concerning Emission Specifications for Reasonably Available Control Technology by removing comments from the “explanation” field, 117.206 concerning Emission Specifications for Attainment Demonstrations, 117.216 concerning Final Control Plan Procedures for Attainment Demonstration Emission Specifications, 117.223 concerning Source Cap by correcting an inadvertent mistake made in the previous codification of the “explanation” field and correcting the reference from 117.223 (1)(B) to 117.223 (b)(1)(B), 117.510 concerning Compliance Schedule for Utility Electric Generation in Ozone Nonattainment Areas, 117.520 concerning Compliance Schedule for Industrial, Commercial, and Institutional Combustion Sources in Ozone Nonattainment Areas, and 117.570 concerning Trading; and the repeal of existing SIP-approved sections 117.109 and 117.601 for the nonattainment areas. We are approving these D/FW NO_X point source rule revisions under part D of the Act because Texas is relying on these NO_X control measures for major stationary sources in the D/FW area to demonstrate attainment of the 1-hour ozone standard in the D/FW ozone nonattainment area.

2. What Does the SIP Revision for Electric Generating Facilities in East and Central Texas Say?

This revision requires reductions of NO_X from electric utility power boilers and gas turbines in East and Central Texas. The following two tables contain a summary of the April 30, 2000, SIP revision for electric generating facilities and gas turbines in East and Central Texas.

We are approving the NO_X emission specifications and compliance dates for electric generating facilities in East and Central Texas as a part of the Texas 1-hour ozone SIP under part D of the Act because the State is relying on the NO_X control measures to demonstrate attainment of the 1-hour ozone standard in the H/GA, B/PA, and D/FW ozone nonattainment areas in the State of Texas. We are also approving these rules under sections 110 and 116 because they contribute to continued maintenance of the standard in the eastern half of the State of Texas and they strengthen the existing Texas SIP.

3. What Does the SIP Revision for Major Stationary Sources in the D/FW Area Say?

This revision requires reductions in emissions of NO_X from major stationary sources operating in the D/FW ozone nonattainment area. The following three tables contain a summary of the April 30, 2000, SIP revision for major stationary sources operating in the D/FW ozone nonattainment area.

4. What Are NO _X ?

Nitrogen oxides belong to the group of criteria air pollutants. NO_X results 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.

5. What Is a Nonattainment Area?

A nonattainment area is a geographic area in which the level of a criteria air pollutant is higher than the level allowed by Federal standards. A single geographic area may have acceptable levels of one criteria air pollutant but unacceptable levels of one or more other criteria air pollutants; thus, a geographic area can be attainment for one criteria pollutant and nonattainment for another criteria pollutant at the same time.

6. What Are Definitions of Major Sources for NO_X?

Section 302 of the Act generally defines “major stationary source” as a facility or source of air pollution which emits, when uncontrolled, 100 tons per year (tpy) or more of air pollution. This general definition applies unless another specific provision of the Act explicitly defines major source differently. Therefore, for NO_X, a major source is one which emits, when uncontrolled, 100 tpy or more of NO_X in marginal and moderate areas. The B/PA area is a moderate ozone nonattainment area, so the major source size for the B/PA area is 100 tpy or more, when uncontrolled. According to sections 182(c) and 182(f) of the Act, a major source in a serious nonattainment area is a source that emits, when uncontrolled, 50 tpy or more of NO_X. The D/FW area is a serious ozone nonattainment area, so the major source size for D/FW is 50 tpy or more, when uncontrolled.

According to section 182(d) and 182(f)of the Act, a major source in a severe nonattainment area is a source that emits, when uncontrolled, 25 tpy or more of NO_X. The H/GA area is a severe ozone nonattainment area, so the major source size for the H/GA area is 25 tpy or more, when uncontrolled.

7. What Is a State Implementation Plan?

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

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

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

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

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

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

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

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

10. What Areas in Texas Will This Action Affect?

The following table contains lists of affected counties and the revisions we are approving.

If you are in one of these Texas counties, you should refer to the Texas NO_X rules to determine if and how the actions stated in this document will affect you.

II. Final Action

Pursuant to sections 110 and 116 and part D of the Act, we are finalizing the approval of revisions to Texas Rule 30 TAC, Chapter 117, regulations for the control of air pollution from nitrogen compounds, as a revision to the Texas NO_X SIP. This includes the final approval of revisions to the Texas NO_X rules for electric generating facilities in East and Central Texas, and the final approval of revisions to the Texas NO_X rules for major stationary sources in the D/FW 1-hour ozone nonattainment area. Collectively, these measures will reduce ozone concentrations in the H/GA, D/FW, and B/PA ozone nonattainment areas.

III. Administrative Requirements

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. 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 (Public Law 104-4). This rule also does 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), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This 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. The 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). This rule will be effective April 16, 2001.

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 15, 2001. 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) of the Act.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Hydrocarbons
• Nitrogen dioxide
• Nitrogen oxides
• Nonattainment
• Ozone
• 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(c), the table is amended under Chapter 117 as follows:

a. Under Subchapter A, revising the entry for section 117.10;

b. Under Subchapter B, revising the “Division 1” heading to read “Division 1—Utility Electric Generation in Ozone Nonattainment Areas,” revising the entries for sections 117.104, 117.106, 117.108, 117.115, and 117.116, and removing the entry for section 117.109;

c. Under Subchapter B, by redesignating “Division 2” with all of its entries as “Division 3,” and adding a new “Division 2” heading to read “Division 2—Utility Electric Generation in East and Central Texas,” and adding new sections 117.131, 117.133, 117.134, 117.135, 117.138, 117.141, 117.143, 117.145, 117.147, and 117.149;

d. Under Subchapter B, revising “Division 3” heading to read “Division 3—Industrial, Commercial, and Institutional Combustion Sources in Ozone Nonattainment Areas”, and revising the entries for sections 117.205, 117.206, 117.216, and 117.223;

e. Under Subchapter E, adding a new entry for section 117.512, revising the entries for sections 117.510, 117.520, and 117.570;

f. Removing the “Subchapter F: Gas-Fired Steam Generation” heading and removing the entry for section 117.601.

The additions read as follows: