Environmental Protection Agency (EPA).
The EPA is approving revisions to the Texas State Implementation Plan (SIP) for the permitting of new major sources and major modifications in areas which do not meet the national ambient air quality standards (NAAQS) promulgated by EPA (nonattainment areas). The EPA is approving these revisions to satisfy the provisions of the Clean Air Act (Act) which relate to the permitting of new and modified sources which are located in nonattainment areas. Today's action approves the recodification of and revisions to the nonattainment permitting regulations. Today's action also approves revisions relating to when nonattainment area permitting requirements apply to emissions of nitrogen oxides (NOX) as a precursor to ozone in an ozone nonattainment area.
This rule is effective on August 16, 2000.
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 Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Texas Natural Resource Conservation Commission, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Stanley M. Spruiell of EPA Region 6 Air Permits Section at (214) 665-7212 at the address above, or at email@example.com.End Further Info End Preamble Start Supplemental Information
Throughout this document “we,” “us,” or “our” means EPA.
Table of Contents
I. What action are we taking?
II. What is the background for this action?
III. What did Texas submit? Start Printed Page 43987
IV. What are the Federal requirements for permitting major sources and major modifications in nonattainment areas?
V. Summary of Texas' 182(f) NOX waivers
VI. Why can we approve this request?
VII. Final action
VIII. Administrative requirements
I. What Action Are We Taking?
We are finalizing our approval of the recodification of and revisions to Title 30, Texas Administrative Code (TAC) Chapter 116, “Control of Air Pollution by Permits for New Construction or Modification,” as indicated in Table 1 below:
|Recodified section of 30 TAC chapter 116||Submittal dates of recodified section||Title or description||Former section of 30 TAC chapter 116|
|Section 116.12||August 31, 1993 July 18, 1996 April 13, 1998 March 16, 1999||Nonattainment Review Definitions||Section 101.1.|
|Section 116.150||August 31, 1993 November 1, 1995 April 13, 1998 March 16, 1999||New Major Source or Major Modification in Ozone Nonattainment Areas||Section 116.3(a)(7) and (8).|
|Section 116.151||August 31, 1993 April 13, 1998||New Major Source or Major Modification in Nonattainment Area Other than Ozone||Section 116.3(a)(10).|
|Section 116.170||August 31, 1993||Applicability for Reduction Credits||Section 116.3(c).|
This proposal includes portions of revisions submitted by the Governor of Texas to EPA on the following dates:
- August 31, 1993.
- November 1, 1995.
- July 18, 1996.
- April 13, 1998.
- March 16, 1999.
We are taking this rulemaking action under sections 110, 301 and part D of the Act. We are acting only on those parts of these submittals which relate to permitting sources in nonattainment areas.
II. What Is the Background for This Action?
On January 18, 2000, we published a notice of proposed rulemaking (NPR) proposing full approval of the recodification of and revisions to Texas' regulations for the permitting of new major sources and major modifications in nonattainment areas. The Governor submitted revisions to these nonattainment area permitting requirements as described above.
As explained in the NPR, we have determined that Texas' recodification of and revisions to its nonattainment permitting requirements continue to meet the requirements of part D of the Act and 40 CFR 51.165 (Permit Requirements). The NPR provided opportunity for the public to comment on the proposed action. The public comment period for our action ended February 17, 2000. We received no comments on the NPR. As a result, we are finalizing our proposed approval without changes. For more details on these submittals, please refer to the proposed rulemaking.
III. What Did Texas Submit?
Table 2 below summarizes each individual SIP submittal that we are approving in today's action.
|Date adopted by state||Date submitted to EPA||Description of SIP submittal|
|August 16, 1993||August 31, 1993||Recodification and revisions to SIP relating to permitting under part D of the Act. This includes submittal of the following recodified Sections of Chapter 116: —Section 116.12, —Section 116.150, and —116.151, and —Section 116.170(1) and (3).|
|October 26, 1995||November 1, 1995||Revisions to Section 116.150 to address nonattainment permitting requirements for NOX (as an ozone precursor) in the Dallas-Fort Worth, El Paso, Houston-Galveston, and Beaumont-Port Arthur ozone nonattainment areas consistent with waivers approved by EPA pursuant to section 182(f) of the Act.|
|May 15, 1996||July 18, 1996||Revisions to Table I of Section 116.12 to conform to NOX waivers approved by EPA pursuant to section 182(f) of the Act.|
|March 18, 1998||April 13, 1998||Revisions to Sections 116.12, Table I of Section 116.12, and 116.150, and 116.151. Texas revised the SIP to reinstate NOX as an ozone precursor in the Houston-Galveston and Beaumont-Port Arthur ozone nonattainment areas.|
|February 24, 1999||March 16, 1999||Revisions to Chapter 116, which reinstate the requirement to review NOX as an ozone precursor in the Dallas-Fort Worth ozone nonattainment area.|
IV. What Are the Federal Requirements for Permitting Major Sources and Major Modifications in Nonattainment Areas?
A. What Are the Statutory Requirements for Permitting Major Sources and Major Modifications in Nonattainment Areas?
The statutory requirements governing permitting in nonattainment areas are in part D of the Act. Specifically, the Act requires that a major source or major modification meet the criteria in Table 3 below.
|Requirement of Act||Where specified in the Act||Citation in state regulations|
|Base emissions offsets on the same emissions baseline used in the demonstration of reasonable further progress.||Section 173(a)(1)(A)||Section 116.150(a)(4), Section 116.151(3).|
|Apply Lowest Achievable Emission Rate (LAER)||Section 173(a)(2)||Section 116.150(a)(1), Section 116.151(1).|
|Demonstrate that all other major stationary sources under the same ownership or operation in the State are complying with the Act||Section 173(a)(3)||Section 116.150(a)(2), Section 116.151(2).|
|State cannot issue a permit if the EPA Administrator finds that the State is not adequately enforcing the provisions of the applicable implementation plan for the nonattainment area in which the source proposes to construct or modify||Section 173(a)(4)||The EPA has made no such determination for Texas. If EPA makes this determination in the future, EPA will address this matter with Texas at that time.|
|• Analyze alternative sites, sizes, production processes, and environmental control techniques for proposed sources||Section 173(a)(5)||Section 116.150(a)(4). Section 116.151(4).|
|• Demonstrate that the benefits of the proposed source significantly outweigh the environmental and social costs associated with its location, construction, or modification|
|Prohibits use of growth allowance included in a SIP prior to the Act Amendments of 1990 in an area which receives notice that such plan is substantially inadequate||Section 173(b)||Not Applicable.|
|A sources may obtain offsets in another nonattainment area under the following conditions||Section 173(c)(1)||Section 116.150(a)(3). Section 116.151(3).|
|• The area in which the offsetting reductions originate has an equal or higher nonattainment classification, and|
|• The emissions from the nonattainment area where the offsetting reductions originate will contribute to a NAAQS violation in the area in which the source would construct|
|A new or modified major stationary source must offset a proposed emissions increase with real reductions in actual emissions||Section 173(c)(1)||Section 116.150(a)(3). Section 116.151(3). Section 116.12(14)—Definition of “Offset ratio”.|
|Must not use emission reductions otherwise required by the Act||Section 173(c)(2)||Section 116.170(1).|
|A State may allow any existing or modified source that tests rocket engines or motors to use alternative or innovative means to offset emissions increases from firing and related cleaning||Section 173(e)||Section 116.170(3).|
B. Who Is Affected by This Action?
The requirements described in Table 3 above apply to each owner and/or operator who constructs or modifies a stationary source in a nonattainment area in Texas if the stationary source is major for the air pollutant for which the area is nonattainment. A stationary source is major if it emits, or has the potential to emit, the nonattaining pollutant, or precursor thereto, in amounts greater than the major source threshold for the nonattaining pollutant.
C. What Are the Major Source Thresholds for Nonattainment Pollutants?
The major source threshold varies, depending on the pollutant and the classification of the nonattainment area. Any owner or operator who proposes to construct a major stationary source must obtain a permit which complies with the regulations that we are approving herein. Table 4 below lists the major source threshold for each pollutant.
|Pollutant: classification||Major source threshold in tons per year (TPY)||Where specified in the Act|
|Marginal||100 of volatile organic compounds (VOC) or NOX||Section 302(j).|
|Moderate||100 of VOC or NOX||Section 302(j).|
|Serious||50 of VOC or NOX||Section 182(c).|
|Severe||25 of VOC or NOX||Section 182(d). Start Printed Page 43989|
|Carbon monoxide (CO):|
|Particulate matter less than 10 micrometers (PM-10):|
|Sulfur dioxide (SO2)||100||Section 302(j).|
Table 4 above refers to classifications for areas designated nonattainment for ozone, CO, and PM-10. These nonattainment classifications are defined in the Act as follows:
- Section 181(a) defines five area classifications for ozone. These five classifications are marginal, moderate, serious, severe, and extreme. Texas has no extreme ozone nonattainment areas and does not address such areas in its regulations.
- Section 186(a) defines two area classifications for CO. These two classifications are moderate and serious.
- Section 188 defines two area classifications for PM-10. These two classifications are moderate and serious.
A detailed description of the individual area classifications for ozone, CO, and PM-10 nonattainment areas is contained in EPA's General Preamble for the Implementation of Title I of the 1990 Amendments, 57 FR 13498 (April 16, 1992).
D. What Is a Major Modification?
A major modification is any physical change, or change in the method of operating, a major stationary source which significantly increases net emissions of the air pollutant, or precursor, for which the area is nonattainment and for which the source is a major source before the modification.
Any owner or operator who proposes a major modification must obtain a permit that complies with the regulations that we are approving herein. Table 5 below lists the significance level for each pollutant which is used in determining whether a net emissions increase is a major modification.
|Pollutant: Classification||Significance level in TPY||Where specified in the Act or regulations|
|Marginal||40 of VOC or NOX||40 CFR 51.165(a)(x).|
|Moderate||40 of VOC or NOX||40 CFR 51.165(a)(x).|
|Serious||25 of VOC or NOX||Section 182(c)(6) of the Act.|
|Severe||25 of VOC or NOX||Section 182(c)(6) of the Act.|
|Moderate||100||40 CFR 51.165(a)(x).|
|SO2||40||40 CFR 51.165(a)(x).|
|NOX||40||40 CFR 51.165(a)(x).|
|Lead||0.6||40 CFR 51.165(a)(x).|
|a—No significance level is specified in the Act nor in the regulations. The significance levels specified in Table 5 are the significance levels that we approved for Texas on September 27, 1995 (60 FR 49781).|
The major source thresholds and significance thresholds in Tables 4 and 5 above are required by Texas in section 116.12—Definition of “major modification,” Table I.
E. What Are the Offset Requirements in Ozone Nonattainment Areas?
Section 182 of the Act also specifies the offset ratios that are required for marginal, moderate, serious, severe and extreme ozone nonattainment areas. Table 6 below lists the applicable offset ratio for each type of ozone nonattainment area.
|Ozone nonattainment classification||Offset ratio||Clean Air Act citation for offset ratio|
|Marginal||1.10 to 1||Section 182(a)(4).|
|Moderate||1.15 to 1||Section 182(b)(5).|
|Serious||1.20 to 1||Section 182(c)(10).|
|Severe||1.30 to 1||Section 182(d)(2).|
The offset ratios in Table 6 above are required by Texas in section 116.12—Definition of “major modification,” Table I.
F. Does the Act Have Other Provisions That Apply in Serious and Severe Ozone Nonattainment Areas?
Sections 182(c)(6), (7), and (8) of the Act contain provisions which apply to modifications at major sources located in serious and severe ozone nonattainment areas.
Tables 7 and 8 below summarize the requirements of sections 182(c)(6), (7), and (8) and describe how Texas addresses these requirements in Chapter 116. The reader should refer to the NPR which contains detailed discussions of the Act's requirements and our analysis of how Chapter 116 meets these requirements of the Act.
|Section of Act||Summary of Act's requirement||Section of chapter 116 which addresses Act's requirement||Summary of requirement of chapter 116|
|Section 182(c)(6)—De minimis rule||Netting Trigger. The source determines the “increase in net emissions” from the proposed modification. The net emissions from the proposed modification (the “project net”) is the sum of all proposed creditable emissions increases and decreases proposed at the source between: (A) the date of application for the modification and (B) the date the modification begins emitting. An increase or decrease is creditable if it meets the criteria described in 40 CFR 51.165(a)(1)(vi)||Section 116.150||Netting Trigger. Proposed project triggers contemporaneous netting unless the proposed project meets at least one of the following conditions: —The proposed increase is less than five TPY without consideration of other decreases at the source, or —The “project net” is zero or less. Texas definition of “project net” in Section 116.12 is consistent with that term as described in the second column of this Table.|
|Section 182(c)(6)—De minimis rule||Contemporaneous Period. If the project net is an emissions increase, then the source aggregates the project net emissions increase with all other “net increases in emissions from the source” over a period of five consecutive calendar years which includes the year in which the source increase occurs (the “contemporaneous net”). If the contemporaneous net increase is greater than 25 TPY, then the proposed modification is subject to nonattainment new source review (NNSR)||Section 116.12. Definition of “contemporaneous period”||Contemporaneous Period. As described in Table 8 below.|
|Section 182(c)(7)—Special rule for modifications of sources emitting less than 100 tons per year||Project is not a modification subject to NNSR if source elects to internally offset the same pollutant at an offset ratio of at least 1.3 to 1 the proposed increase of VOC or NOXa||Section 116.150(a)(3)(A)||NNSR is not required if the project increases are offset with internal offsets of the same pollutant at a ratio of at least 1.3 to 1.|
|Best available control technology (BACT) is substituted for LAER, if a source elects not to use internal offsets||Section 116.150(a)(1)||If source elects not to use internal offsets, it can substitute BACT for LAER.|
|Section 182(c)(8)—Special rule for modifications of sources emitting 100 tons per year or more||The requirements of LAER otherwise required by section 173(a)(2) of the Act do not apply, if the source elects to internally offset the same pollutant at 1.3 to 1 such proposed increase of VOC or NOXa||Section 116.150(a)(3)(B)||Source can substitute BACT for LAER, if the project increases are offset with internal offsets of the same pollutant at a ratio of at least 1.3 to 1.|
|A source which elects to avoid LAER by satisfying the provisions of section 182(c)(8) may use the 1.3 to 1 internal offset ratio in lieu of the general offset ratio||Section 116.150(a)(3)(B)||Internal offsets used as described above can also be applied to satisfy the offset requirement.|
|a Applies to a proposed increase of VOC or NOX from any discrete operation, unit, or other pollutant emitting activity at the source.|
|Pollutant||Contemporaneous period begins||Contemporaneous period ends|
|If source has potential to emit (PTE) less than 250 TPY|
|VOC||Five years before commencement of construction||Date that new or modified source begins operation.|
|NOX||Latter of —November 15, 1992, or —Five years before commencement of construction||Date that new or modified source begins operation. Start Printed Page 43991|
|If source has PTE equal to or greater than 250 TPY|
|VOC||The earlier of —Five years before commencement of construction, or —November 15, 1992||Date that new or modified source begins operation.|
|NOX||November 15, 1992||Date that new or modified source begins operation.|
V. Summary of Texas' 182(f) NOX Waivers
A. What Does Section 182(f) of the Act Require?
Section 182(f) sets forth the presumption that NOX is an ozone precursor unless the Administrator makes a finding of nonapplicability or grants a waiver pursuant to criteria contained therein. Specifically, section 182(f) provides that requirements applicable for major stationary sources of VOC shall apply to major stationary sources of NOX, unless otherwise determined by the Administrator, based upon certain determinations related to the benefits or contribution of NOX control to air quality, ozone attainment, or ozone air quality.
B. Did We Approve NOX Waivers in Texas?
We approved petitions submitted by Texas under section 182(f) to waive NOX provisions in Texas, as follows:
- On November 28, 1994, we conditionally approved two petitions from Texas, each dated June 17, 1994. This action exempted Dallas-Fort Worth (DFW)  and El Paso (ELP)  ozone nonattainment areas from NOX control requirements of section 182(f) of the Act. See 59 FR 60709.
- On April 19, 1995, we approved a petition from Texas dated August 17, 1994. This action temporarily exempted the Houston-Galveston (HGA)  and Beaumont-Port Arthur (BPA)  ozone nonattainment areas from the NOX control requirements of section 182(f) of the Act. These temporary exemptions expired December 31, 1996. See 60 FR 19515.
- On May 23, 1997, we approved a petition from Texas dated March 8, 1996, to extend the NOX waiver in HGA and BPA until December 31, 1997. See 62 FR 28344.
- On April 20, 1999, we approved a petition from Texas dated November 13, 1998, to rescind the conditional NOX exemption for the DFW ozone nonattainment area. Texas petitioned for rescission of the exemption after EPA reclassified DFW from a moderate ozone nonattainment area to a serious ozone nonattainment area. The modeling for this serious ozone nonattainment area SIP shows that control of NOX sources will help the area to attain the air quality standard for ozone. See 64 FR 19283.
C. What Is the Current Status of Texas NOX Waivers?
On December 31, 1997, the NOX waiver in HGA and BPA expired. On February 12, 1998, we published a document in the Federal Register concerning Texas' decision not to petition for further extension of the NOX exemption in the HGA and BPA areas. See 63 FR 7071. Since the extension of the temporary exemption expired on December 31, 1997, the State must implement the numerous requirements relating to NOX in the HGA and BPA areas. Accordingly, any new source review (NSR) permits that Texas had not deemed to be administratively complete prior to January 1, 1998, must comply with the NOX NSR requirements, consistent with the policy set forth in the EPA's NSR Supplemental Guidance memorandum dated September 3, 1992, from John Seitz, Director, EPA's Office of Air Quality Planning and Standards.
On February 18, 1998, we published our finding that the DFW nonattainment area has not attained the 1-hour ozone NAAQS by the applicable attainment date in the Act for moderate ozone nonattainment areas, November 15, 1996. As a result of this finding, the DFW ozone nonattainment area was reclassified by operation of law as a serious ozone nonattainment area, effective March 20, 1998. Texas was required to submit a new SIP, no later that March 20, 1999, addressing attainment of that standard by November 15, 1999. Texas submitted a revised plan on March 16, 1999, in satisfaction of this requirement.
In its revised plan, Texas again recognizes NOX as an ozone precursor in the DFW nonattainment area. Texas also forwarded a petition to us on November 13, 1998, requesting that we withdraw the waiver for NOX that we had approved on November 28, 1994, for the DFW nonattainment area. On April 20, 1999, we approved this petition and reinstated NOX as an ozone precursor in the DFW nonattainment area.
D. What Rule Changes Did Texas Submit to Accommodate the Section 182(f) NOX Waivers?
Texas submitted the following SIP revisions indicated in Table 9 below to incorporate the section 182(f) NOX waivers and subsequent reinstatement for NOX as an ozone precursor:
|Date of SIP submittal||Description|
|November 1, 1995||Texas submitted revisions to Section 116.150 to implement the NOX waivers approved for the DAL, ELP, HGA, and BPA ozone nonattainment areas.|
|July 18, 1996||Texas submitted revisions to Table I in Section 116.12 5 to remove NOX as an ozone precursor, consistent with EPA's approval of the NOX waivers.|
|April 13, 1998||Texas submitted revisions to Sections 116.12 (Table I) and 116.150(c), to reinstate NOX as an ozone precursor in the HGA and BPA areas following the expiration of the temporary waivers for those areas on December 31, 1997.|
|Start Printed Page 43992|
|March 16, 1999||Texas submitted revisions to Sections 116.12 (definition of “major modification” and Table I) and 116.150(b), to again require NOX to be treated as an ozone precursor in the DFW area.|
|5 Table I of section 116.12 specifies the various classifications of nonattainment along with the associated emission levels which designate a major modification for those areas. A detailed discussion of the changes to Table I is included in section of the preamble describing the submitted definition of “major modification.”|
The above described revisions to section 116.150 are discussed in the following paragraphs.
E. What Are Texas' Provisions for Addressing NOX Waivers in DFW and ELP?
Texas addresses the NOX waivers for DFW and ELP in section 116.150(b) submitted November 1, 1995. section 116.150(b) is consistent with the NOX waiver approved by EPA on November 28, 1994. Following the redesignation of DFW to a serious ozone nonattainment area, Texas revised section 116.150(b) to revoke applicability of the NOX waiver in DFW. As revised, section 116.150(b) now identifies ELP as the only area in Texas where a section 182(f) waiver continues to apply. Texas submitted these revisions to section 116.150(b) on March 16, 1999.
F. What Are Texas' Provisions for Addressing NOX Waivers in HGA and BPA?
Texas addresses the NOX waivers for HGA and BPA in section 116.150(c) submitted November 1, 1995. This section temporarily removed the requirements relating to NOX emissions (as an ozone precursor) in these areas.
Section 116.150(c) exempted NOX from otherwise applicable nonattainment area permitting requirements  (except for NOX offsets). The requirements for obtaining NOX offsets continue to apply, and will be included in the source's permit. However, the requirement to obtain such offsets was held in abeyance until January 1, 1998.
Section 116.150(c) further required a source to document any proposed increase of NOX equal to or greater than 40 TPY and submit documentation of netting calculations associated with the proposed increase, and the source must otherwise comply with the requirements of sections 116.150(a).
Texas submitted further revisions to section 116.150(c) on April 13, 1998. This submittal reinstates the NSR requirements for NOX in HGA and BPA, effective January 1, 1998. The submittal further provides that sources with NOX offsets in the HGA and BPA areas held in abeyance should have obtained the required NOX offsets no later than January 1, 2000.
VI. Why Can We Approve the Requested SIP Revisions?
Consistent with the above discussion and with the NPR we find that the NNSR regulations submitted by Texas meet the requirements of the Act. We therefore approve these regulations as revisions to the Texas SIP.
VII. Final Action
We are approving the revisions to 30 TAC Chapter 116 which relate to the permitting of major sources and major modifications in nonattainment areas. Specifically, for the reasons stated herein, we are approving sections 116.12, 116.150, 116.151, 116.170, and 116.170(1) and (3).
VIII. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) revokes and replaces Executive Order 12612, “Federalism,” and Executive Order 12875, “Enhancing the Intergovernmental Partnership.” Executive Order 13132 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
This final 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, 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of Start Printed Page 43993the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it approves a State program.
Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”
Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Act forbids EPA to base its actions concerning SIPs on such grounds. See Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves 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.
G. Submission to Congress and the Comptroller General
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 can not 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 August 16, 2000.
H. Petitions for Judicial Review
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 September 15, 2000. 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).Start List of Subjects
List of Subjects in 40 CFR Part 52
- Environmental protection
- Air pollution control
- Carbon Monoxide
- Incorporation by reference
- Intergovernmental relations
- Nitrogen oxides
- Particulate matter
- Reporting and recordkeeping requirements
- Sulfur oxides
- Volatile organic compounds
Dated: July 5, 2000.
Acting Regional Administrator, Region 6.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:End Amendment Part Start Part
PART 52—[AMENDED]End Part Start Amendment Part
1. The authority citation for part 52 continues to read as follows:End Amendment Part
Subpart SS—TexasStart Amendment Part
2. In § 52.2270(c) the first table is amended by deleting the entry for Section 101.1 Table I (Definitions—Major Source/Major Modification Emission Thresholds), revising the entries for Section 101.1 (Definitions) and for Section 116.03 (Consideration for Granting a Permit to Construct and Operate), and by adding new entries in numeric order to read as follows:End Amendment Part
(c) * * * Start Printed Page 43994
|State citation||Title/subject||State approval date||EPA approval date||Explanation|
|Chapter 101—General Rules|
|Section 101.1||Definitions||08/16/93||[07/17/00 and page number]||Ref 52.2299(c)(102) Note: Nonattainment review definitions repealed from 101.1 and added to 116.12.|
|* * * * * * *|
|Chapter 116 (Reg 6)—Control of Air Pollution by Permits for New Construction or Modification|
|* * * * *|
|Section 116.03||Consideration for Granting a Permit to Construct and Operate||08/16/93||[07/17/00 and page number]||Ref 52.2299(c)(102) Note:(a)(7), (8), (9), (10), (11), and (12); (c); (d); and (e) NOT in SIP.|
|* * * * * * *|
|* * * * * * *|
|Section 116.12||Nonattainment Review Definitions||02/24/99||[07/17/00 and page number]||Includes Table I, Major Source/Major Modification Emission Thresholds.|
|* * * * * * *|
|Subchapter B—New Source Review Permits|
|Section 116.150||New Major Source or Major Modification in Ozone Nonattainment Area||02/24/99||[07/17/00 and page number]|
|Section 116.151||New Major Source or Major Modification in Nonattainment Area Other than Ozone||03/18/98||[07/17/00 and page number]|
|* * * * * * *|
|Subchapter B—New Source Review Permits Emission Reductions: Offsets|
|Section 116.170||Applicability for Reduction Credits||08/16/93||[07/17/00 and page number]||Note: 116.170(2) Not in SIP.|
1. Includes the following Texas counties: Collin, Dallas, Denton, and Tarrant Counties in TexasBack to Citation
2. Includes El Paso County in TexasBack to Citation
3. Includes the following Texas counties: Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller.Back to Citation
4. Includes the following Texas counties: Hardin, Jefferson, and Orange Counties.Back to Citation
6. Section 116.150(c) exempts NOX from the application of lowest achievable emission rate, statewide compliance by all sources under common control with the applicant, and alternate site analysis, which are otherwise required by section 116.150(a)(1), (2), and (4), respectively.Back to Citation
[FR Doc. 00-17876 Filed 7-14-00; 8:45 am]
BILLING CODE 6560-50-U