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

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[Federal Register: November 28, 2000 (Volume 65, Number 229)]
[Rules and Regulations]
[Page 70792-70795]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28no00-16]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-130-1-7473a; FRL-6907-8]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action on revisions to the
Texas State Implementation Plan (SIP). These revisions concern 30 TAC,
Chapter 101, General Air Quality Rules, General Rules, specifically,
the reporting and recordkeeping requirements for excess emissions
resulting from Startup, Shutdown, Malfunction, and Maintenance (SSM)
episodes. The EPA is approving these revisions to regulate excess
emissions in accordance with the requirements of the Federal Clean Air
Act (the Act) and EPA's policy on excess emissions.

DATES: This rule is effective on January 29, 2001 without further
notice, unless EPA receives adverse comment by December 28, 2000. If
EPA receives such comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.

ADDRESSES: Written comments on this action should be addressed to Mr.
Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region
6 Office listed below. 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, Air Planning Section (6PD-
L), 1445 Ross Avenue, Dallas, Texas 75202-2733
Texas Natural Resource Conservation Commission, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, P.E., Air Planning
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-6691.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What action is EPA taking?
2. Where can I find EPA policies on excess emission during SSM?
3. Is there a difference between EPA's old policy on excess emission
and the new policy?
4. What does the new policy say?
5. What does the current Texas approved SIP rule say about excess
emission during SSM?
6. What are advantages of the new Texas rule revision?
7. What is a Reportable Quantity?
8. What does a source do if its excess emission during SSM is less
than RQ?
9. Who has to report an excess emission during SSM?
10. Do minor sources have to report excess emission during SSM?
11. What areas in Texas will this rule affect?
12. What is a State Implementation Plan?
13. What is the Federal approval process for a SIP?
14. What does Federal approval of a SIP mean to me?

Throughout this document ``we,'' ``us,'' and ``our'' means EPA.

1. What Action Is EPA Taking?

On July 31, 2000, George W. Bush, the Governor of Texas submitted
the Texas 30 TAC Chapter 101, General Air Quality Rules, General Rules,
as a revision to the existing Texas SIP. Texas specifically submitted
revisions to sections 101.01 concerning Definitions; 101.06 concerning
Upset Reporting and Recordkeeping Requirements; 101.07 concerning
Maintenance, Startup and Shutdown Reporting, Recordkeeping and
Operational Requirements; and 101.11 concerning Demonstrations.
In this document, we are approving these revisions to the Texas
SIP. For more information on the SIP revision and our evaluation,
please refer to our Technical Support Document (TSD) dated October
2000.

2. Where Can I Find EPA Policies on Excess Emission During SSM?

You can find our policies on excess emissions during SSM in the
following documents: (1) Memoranda from Kathleen Bennett, formerly
Assistant Administrator for Air, Noise and Radiation dated September
28, 1982, and February 15, 1983 (the Bennett Memo--old policy), and (2)
Memorandum from Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, dated September 20, 1999 (the
Herman Memo--new policy). The Herman Memo supplements the Bennett Memo.
Our TSD dated October 2000, contains both of these documents.

[[Page 70793]]

3. Is There a Difference Between EPA's Old Policy on Excess
Emission and the New Policy?

No, there is not a significant difference between EPA's old policy
and the new policy on excess emission. The new policy on excess
emission during SSM episodes supplements and reaffirms the old policy.
As in the old policy, we reiterate that, under the Act, all excess
emissions during SSM episodes are violations of applicable emission
limitations. However, we believe it would be inequitable to penalize a
source for occurrences beyond the company's control. A source has the
burden of proving that the excess emissions were due to circumstances
entirely beyond the control of the operator or the owner.
For a review of the Herman Memo and Bennett Memo, please refer to
our TSD dated October, 2000.

4. What Does the New Policy Say?

The new policy discusses our intent to generally treat excess
emissions of lead and sulfur dioxide differently from those of other
pollutants. See pages 1 and 2 of the attachment to the Herman Memo. The
new policy specifies a list of objective criteria that a source with
excess emissions should meet in order for the source to avoid potential
enforcement action. See pages 3, and 4 of the attachment to the Herman
Memo. The new policy also contains suggestions for creating source
category specific rules concerning excess emission during startup and
shutdown that will comply with the Act. See pages 5 and 6 of Attachment
to the Herman Memo.

5. What Does the Current Texas Approved SIP Rule Say About Excess
Emission During SSM?

We approved the current SIP rule, for Texas, on excess emissions
during SSM episodes in the Federal Register (37 FR 10895) dated May 31,
1972. Since that time, Texas has adopted revisions to its rule on
excess emissions, but those revisions have never been approved in the
SIP. Section 101.06 of the approved SIP rule says that, a source must
report its ``major'' upset condition with excessive emissions to the
local air pollution control agency or the Executive Director. However,
the approved SIP rule did not specify what constituted a ``major''
upset condition.

6. What Are Advantages of the New Texas Rule Revision?

The revisions to Chapter 101, General Air Quality Rules, General
Rules will have the following advantages by: (1) Streamlining paper
work and resources, (2) assisting enforcement in focusing on major and
more frequent upsets, (3) making reporting criteria more consistent
among various media (air and hazardous waste programs), and (4)
adopting the burden of proof criteria similar to those listed in the
Herman Memo of September 20, 1999.

7. What Is a Reportable Quantity?

Reportable Quantity (RQ) is a threshold limit below which a source
does not have to report its excess emission to the TNRCC. In this rule
when a source exceeds an emission limitation by so many pounds of an
individual air contaminant or so many pounds of mixtures of air
contaminants, the source will have to report its excess emissions to
the TNRCC. We have adopted and used the RQ concept in the 40 CFR parts
355 and 370 (63 FR 31267, dated June 8, 1998), Emergency Planning and
Community Right-To-Know Act (EPCRA), and in the Table 302.4 of 40 CFR
Chapter 1 (July 1, 1997 Edition), the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), in the past.
Therefore, use of RQ as a gauge or baseline default value for reporting
emissions or discharges is not a new regulatory idea.

8. What Does a Source Do If Its Excess Emission During SSM Is Less
Than RQ?

If excess emission during an SSM episode is less than RQ, the
source does not have to report that particular excess emission to the
TNRCC. The source that experiences an excess emission less than RQ will
still have to maintain information about such excess emissions and make
the information available to the State and EPA during inspections or
upon request.

9. Who Has To Report an Excess Emission During SSM?

All sources that experience an excess emission equal to or greater
than RQ, during an SSM episode, need to report their excess emissions.
This rule does not exempt a small source from reporting its excess
emission during an SSM episode, if the excess emission equals or
exceeds the RQ limit.

10. Do Minor Sources Have To Report Their Excess Emission During
SSM?

Yes, minor sources have to report their excess emission during an
SSM episode. Synthetic minor sources have to report their excess
emission during SSM episodes, too. Reporting excess emissions has to do
with the amount of RQ, and has nothing to do with the size (minor,
synthetic minor, or major) of a facility or the source category/type of
facility.

11. 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 must submit these regulations and control strategies to
us for approval and incorporation into the federally enforceable SIP.
Each State has a SIP designed to protect air quality. These SIPs can be
extensive, containing State regulations or other enforceable documents
and supporting information such as emission inventories, monitoring
networks, and modeling demonstrations.

12. 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
rule making 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.

[[Page 70794]]

13. 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 against violators of
these regulations.

14. What Areas in Texas Will These Rules Affect?

These rule revisions will affect the entire State of Texas and is
not specific to a certain area or part of the State. If you are in
Texas, you need to refer to these rules to find out if and how these
rules will affect you.

Final Action

The EPA is publishing this rule without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the ``Proposed Rules'' section of today's Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if adverse comments
are received. This rule will be effective on January 29, 2001 without
further notice unless we receive adverse comment by December 28, 2000.
If EPA receives adverse comments, we will publish a timely withdrawal
in the Federal Register informing the public that the rule will not
take effect. We will address all public comments in a subsequent final
rule based on the proposed rule. We will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time.

Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. This proposed action merely approves state law as meeting
federal requirements and imposes no additional requirements beyond
those imposed by state law. Accordingly, the Regional Administrator
certifies that this proposed 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 proposes to
approve 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). For the same reason, this proposed rule
also does not significantly or uniquely affect the communities of
tribal governments, as specified by Executive Order 13084 (63 FR 27655,
May 10, 1998). This proposed rule will 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), 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 Clean Air Act. This proposed 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 Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. The proposed rule does
not involve special consideration of environmental justice related
issues as required by Executive Order 12898 (59 FR 7629, February 16,
1994). As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this proposed 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 proposed 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.).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental
relations, Reporting and recordkeeping requirements.

Dated: November 15, 2000.
Jerry Clifford,
Acting Regional Administrator, Region 6.

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 Sec. 52.2270 the table in paragraph (c) is amended under
Chapter 101 by:
a. Revising the heading immediately above the entry for section
101.1 to read ``Chapter 101--General Air Quality Rules, Subchapter A--
General Rules.''
b. Revising the entries for sections 101.1, 101.6, 101.7, and
101.11.
The revisions read as follows:

Sec. 52.2270 Identification of plan.

* * * * *
(c) * * *

EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State
State citation Title/Subject adoption EPA citation date Explanation
date
----------------------------------------------------------------------------------------------------------------
Chapter 101--General Air Quality Rules
Subchapter A--General Rules
----------------------------------------------------------------------------------------------------------------
Section 101.1.................. Definitions.... 06/29/2000 11/28/00 65 FR 70794............ Reportable
Quantity and
Reportable
Upset only.

[[Page 70795]]

* * * * * *
*
Section 101.6.................. Upset reporting 06/29/2000 11/28/00 65 FR 70794............ ...............
and
recordkeeping
requirements.
Section 101.7.................. Maintenance, 06/29/2000 11/28/00 65 FR 70794............ ...............
startup and
shutdown
reporting,
recordkeeping
and
operational
requirements.
* * * * * *
*
Section 101.11................. Demonstrations. 06/29/2000 11/28/00 65 FR 70794............ ...............
* * * * * *
*
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[FR Doc. 00-30107 Filed 11-27-00; 8:45 am]
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Approval and Promulgation of Implementation Plans; Texas; Excess Emissions During Startup, Shutdown, Malfunction and Maintenance

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