Approval and Promulgation of Implementation Plans: Texas; Reasonably Available Control Technology for Major Stationary Sources of Nitrogen Oxides for the Houston/Galveston and Beaumont/Port Arthur Ozone Nonattainment Areas

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is conditionally approving a revision to the Texas State Implementation Plan (SIP). The revisions concern Reasonably Available Control Technology (RACT) at stationary sources of nitrogen oxides (NO_X) in the Houston/Galveston (H/G), and the Beaumont/Port Arthur (B/PA) ozone nonattainment areas. The EPA is approving these revisions to regulate emissions of NO_X in accordance with the NO_X RACT requirements of the Federal Clean Air Act (the Act).

EFFECTIVE DATE:

This rule is effective on April 3, 2000.

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, Air Planning Section (6PD-L), 1445 Ross Avenue, Dallas, TX 75202-2733.

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

FOR FURTHER INFORMATION CONTACT:

Mr. Alan Shar, P.E., Air Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, TX 75202-2733; telephone (214) 665-6691.

I. Table of Contents

1. What Are We approving?

2. Did EPA Receive Comments on the Proposed Conditional Approval Action?

3. What Are Nitrogen Oxides?

4. What Is Reasonably Available Control Technology?

5. What Are the Clean Air Act's RACT Requirements for NO_X Emissions?

6. What Are Definitions of Major Sources for NO_X?

7. What Are Alternative Control Techniques (ACTs)?

8. What Is a State Implementation Plan?

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

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

11. What Is a Nonattainment Area?

12. What Counties in Texas Will This Rule Affect?

13. What Are the Rule Revisions We Are Approving?

14. What Kind of Major Source Categories Will This Rule Affect?

15. Are NO_X Emission Specifications in Texas Rule Comparable With Federal Guidelines?

16. Why Is This a Conditional Approval?

SUPPLEMENTARY INFORMATION:

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

1. What Are We Approving?

We are finalizing our conditional approval of revisions to the Texas Rule 30 TAC Chapter 117 for the control of air pollution from nitrogen compounds. These measures will reduce NO_X emissions in the H/G and B/PA ozone nonattainment areas. By this approval we are agreeing that the State of Texas will be implementing the RACT on sources listed in section 13 of this document. Specifically, we are finalizing our conditional approval of the revisions submitted on June 15, 1993; August 31, 1993; June 9, 1994; August 3, 1994; September 21, 1994; December 29, 1994; March 6, 1996; August 9, 1996; May 21, 1997; and May 20, 1998. For detailed listing of each one of these revisions, please refer to our document of proposed rulemaking (64 FR 58011), that we published on October 28, 1999. As proposed, our approval is conditioned on Texas revising Regulation 117.570 to remove the ability to add one standard deviation to the emissions baseline for trading purposes. Furthermore, the Texas Accelerated Vehicle Retirement (AVR) program is not a part of the approved SIP (see 62 FR 66576, December 19, 1997, and 63 FR 41756, August 5, 1998); consequently, if a source plans to rely upon any emission reduction credits generated or claimed through the AVR program, for interim compliance with Chapter 117, the State will have to submit a separate source specific SIP revision to us for approval.

Texas must submit the approvals of the alternative case-specific specifications under sections 117.121, 117.221, 117.321 and 117.426 to the EPA for approval as source-specific SIP revisions. Texas must also submit approvals of a petition for phased RACT under section 117.540 to the EPA for approval as source-specific SIP revision. Otherwise, a source operating under such a State approval is subject to Federal enforcement action for violation of the required specifications and/or compliance deadline.

2. Did EPA Receive Comments on the Proposed Conditional Approval Action?

No, we did not receive comments on our proposed conditional approval action. We proposed conditional approval of these SIP revisions on October 28, 1999. The public comment period for our action ended on November 28, 1999. As a result, we are finalizing our proposed conditional approval without changes. For more details on these submittals, please refer to the proposed rulemaking action.

3. What Are Nitrogen Oxides?

Nitrogen oxides belong to the group of criteria air pollutants. The 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.

4. What Is Reasonably Available Control Technology?

Reasonably Available Control Technology is defined as the lowest emission limitation that a particular source can meet by applying a control technique that is reasonably available considering technological and economic feasibility. See 44 FR 53761, September 17, 1979. This requirement is established by sections 182(b)(2) and 182(f) of the Act. These sections, taken together, establish the requirements for Texas to submit a NO_X RACT regulation for all major stationary sources of NO_X in ozone nonattainment areas classified as moderate and above. A State may choose to develop its own RACT requirements on a case by case basis, considering the economic and technical circumstances of an individual source.

5. What Are the Clean Air Act's RACT Requirements for NO_X Emissions?

Section 182(b)(2) requires States, with areas classified as moderate ozone nonattainment, to implement RACT with respect to all major sources of VOCs. Section 182(f) states that, “The plan provisions required under this subpart for major stationary sources of VOCs shall also apply to major stationary sources (as defined in section 302 and subsections (c), (d), and (e) of the section) of oxides of nitrogen.” This NO_X RACT requirement also applies to all major sources in ozone nonattainment areas with higher than moderate nonattainment classifications.

On November 25, 1992 (57 FR 55620), we published a document of proposed rulemaking entitled “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO_X Supplement). The NO_X Supplement describes and provides preliminary guidance on the requirements of section 182(f) of the Act. You should refer to the NO_X supplement for further information on the NO_X requirements. The EPA's mandatory Economic Incentive Program (EIP) rules for criteria pollutants appear in 40 CFR part 51, Subpart U (59 FR 16710). The EPA's discretionary EIP rules concerning emission trading appear in the 1994 EIP guidance document (59 FR 16690). In addition, other EPA guidance memoranda, such as those included in the “NO_X Policy Document for the Clean Air Act of 1990,” (EPA-452/R96-005, March 1996), should also be referred to for more information about NO_X requirements.

On August 17, 1994, the Texas Natural Resource Conservation Commission (TNRCC) petitioned us under section 182(b) to temporarily exempt the B/PA and H/G ozone nonattainment areas from the NO_X requirements of the Act. The TNRCC asked for the exemption based on air quality modeling that indicated that the control of NO_X would not contribute to attainment of the National Ambient Air Quality Standards (NAAQS). We approved the petition on April 19, 1995.

The temporary exemption was to expire on December 31, 1996, with RACT compliance no later than May 31, 1997. On March 6, 1996, the TNRCC asked us to extend the temporary waiver. The TNRCC asked for an extension of the temporary waiver based on section 182(f) of the Act. Section 182(f) allows for a waiver of certain federally required NO_X control measures, if the State demonstrates that NO_X reductions do not contribute to ozone attainment in moderate or above areas. The State submitted modeling information with a petition predicting that the NO_X reductions would be counterproductive to ozone attainment in portions of H/G and B/PA areas. The EPA approved the petition and granted an extension until December 31, 1997, to allow time for carrying out further modeling. Based on this further modeling, TNRCC allowed the waiver to expire. We provided notice that the waiver had expired in the Federal Register on February 12, 1998 (63 FR 7071). The NO_X RACT compliance date was extended to no later than November 15, 1999.

Section 182(b)(2) requires submittal of RACT rules for major stationary sources of VOC (and NO_X) emissions not covered by either a pre or post-enactment control techniques guideline (CTG) document. There were no NO_X CTGs issued before enactment and we have not issued a CTG document for any NO_X sources since enactment of the Act. However, we published ACTs documents for several industrial categories. See section 7 of this document. States can use the information contained in the ACTs to develop their RACT rules. The Texas rules covering NO_X sources and submitted as SIP revisions require final installation of the actual NO_X controls as expeditiously as practicable, but no later than November 15, 1999.

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. According to section 182(c) 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.

According to section 182(d) 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.

Houston is a severe ozone nonattainment area, so the major source size for Houston is 25 tpy or more, when uncontrolled. Beaumont is a moderate ozone nonattainment area, so the major source size for Beaumont is 100 tpy or more, when uncontrolled.

7. What Are Alternative Control Techniques (ACTs)?

Section 183(c) of the Act provides that we will issue technical documents which identify alternative controls for stationary sources of oxides of nitrogen which emit, when uncontrolled, 25 tpy or more of this pollutant. These ACT documents are to be subsequently revised and updated by us. The information in the ACT documents is generated from EPA papers, literature sources and contacts, control equipment vendors, engineering firms, and Federal, State, and local regulatory agencies. States can use information in the ACT to develop their RACT regulations. The following table contains a list of ACT documents for various source categories of NO_X with their corresponding EPA publication numbers.

8. 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.

9. 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 pubic 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 (CFR) 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.

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

It is primarily the function of a State to 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, if the State fails to do so.

11. 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. It has been estimated that 60 percent of Americans live in nonattainment areas. The H/G and B/PA are nonattainment areas for ozone.

12. What Counties in Texas Will This Rule Affect?

This rule affects the H/G and B/PA ozone nonattainment areas. The B/PA area is classified as moderate ozone nonattainment and includes the following counties: Hardin, Jefferson, and Orange. The H/G is classified as severe ozone nonattainment and includes the following counties: Brazoria, Chambers, Fort Bend, Harris, Galveston, Liberty, Montgomery, and Waller. If you are in one of these counties, you should refer to the rules to determine if and how this rule will affect you.

13. What Texas Rule Revisions Is EPA Approving?

The State of Texas submitted the NO_X RACT program Chapter 117, “Control of Air Pollution From Nitrogen Compounds,” as a number of revisions to the SIP. This rulemaking will approve those ten revisions submitted to us dating from June 15, 1993, to May 20, 1998. For detailed address of these revisions, refer to our document of proposed rulemaking (64 FR 58014), dated October 28, 1999.

14. What Kind of Major Source Categories Will This Rule Affect?

This rule will affect NO_X emissions from the following existing source categories in Texas: (a) Utility boilers, steam generators, auxiliary steam boilers, and gas turbines used to generate electricity in H/G and B/PA ozone nonattainment areas (See section 117.101 of this rule); (b) commercial, institutional, or industrial boiler (non-utility boiler) and process heaters in H/G and B/PA with a maximum rated capacity of 40 million British thermal units (Btu) per hour or greater, stationary gas turbines in H/G and B/PA with a megawatt (mW) rating of 1.0 mW or higher; (c) stationery rich burn internal combustion engines of 150 horsepower (hp) or greater in the H/G ozone nonattainment area, and stationary internal combustion engines of 300 hp or greater in the B/PA ozone nonattainment area (See section 117.3210 of this rule); and (d) nitric acid manufacturing (See section 117.401 of this rule) and adipic acid manufacturing (See section 117.301 of this rule) plants in H/G and B/PA ozone nonattainment areas.

15. Are NO_X Emissions Specifications in Texas Rule Consistent With Federal Guidelines?

The emission specifications in the Texas rule are consistent with Federal guidelines. For detailed comparison of these emission specifications refer to 64 FR 58015, October 28, 1999. The following table contains a summary of the type of affected sources, their corresponding emission limit, and relevant applicability information for these sources in the H/G and B/PA nonattainment areas.

16. Why Is This a Conditional Approval?

The allowable NO_X emission rates are calculated based on a rolling 30-day average method (see equation 117.223(b)(1) of this rule) and based on a maximum daily cap method (see equation 117.223(b)(2) of this rule). The definition of actual daily heat input in 117.570(b)(2), and the definition of actual historical average of the daily heat input in 117.223(b)(1) allow sources to add one standard deviation to their baseline heat input or emission rate to establish the baseline for generating emission credits. Adding one standard deviation to the baseline in equation 117.570(b)(2) could generate “paper credits.”

We understood from Texas that this allowance was an inadvertent oversight and they committed in the July 19, 1999, letter to change the rule and submit it as a SIP revision to our office by November 15, 1999. We are conditionally approving the rule based on their commitment. See 64 FR 58011, October 28, 1999. We have received a SIP revision submitted to us on November 15, 1999, that modifies the NO_X RACT for the B/PA ozone nonattainment area. The November 15, 1999, submittal addresses the inadvertent oversight, in equation 117.570(b)(2), mentioned above, and should avoid generation of “paper credits” in the ozone nonattainment areas. In this document, we are not acting on the Texas November 15, 1999, SIP revision. In this document, we are only finalizing our conditional approval of the Texas NO_X RACT rules that appeared in the 64 FR 58011, October 28, 1999. We will address the correction in a future rulemaking action.

II. Final Action

Pursuant to sections 110 and 302 and Part D of the Act, we are finalizing the conditional approval of revisions to the Texas Rule 30 TAC Chapter 117 for the control of air pollution from nitrogen compounds. Please refer to section 16 of this document for the terms and description of this condition. These measures will reduce NO_X emissions in the H/G and B/PA ozone nonattainment areas. In this final action we are agreeing that the State of Texas will be implementing the RACT in the H/G and B/PA on sources listed in section 13 of this document.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled ‘Regulatory Planning and Review.”

B. Executive Order 13132

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.

C. Executive Order 13045

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 the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it approves a State program.

D. Executive Order 13084

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 new 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 April 3, 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 May 2, 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).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon Monoxide
• Hydrocarbons
• Nitrogen dioxide
• Nitrogen oxides
• 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 the table in paragraph (c) is amended under Chapter 117 by:

a. Removing existing entries “Section 117. Rule 701” through “Section 117. Rule 703”.

b. Adding new headings and entries 117.10 through 117.601 in numerical order.

The additions read as follows: