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

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is taking direct final action on revisions to the Texas State Implementation Plan (SIP). This rulemaking covers three separate actions: Converting EPA's conditional approval of the Texas Nitrogen Oxides (NO_X) rules for the Houston/Galveston (H/GA) and Beaumont/Port Arthur (B/PA) ozone nonattainment areas to a full approval as Reasonably Available Control Technology (RACT); approving as RACT, revisions to the NO_X rules for lean burn, stationary, reciprocating internal combustion engines in the B/PA, H/GA, and Dallas/Fort Worth (D/FW) ozone nonattainment areas; and approving revisions to the NO_X rules for major stationary sources in the D/FW ozone nonattainment area, as meeting RACT.

The EPA is approving these SIP revisions to regulate emissions of NO_X as meeting the NO_X RACT requirements of the Federal Clean Air Act (the Act).

DATES:

This rule is effective on October 31, 2000 without further notice, unless EPA receives adverse comment by October 2, 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 including the Technical Support Document (TSD) 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 are we taking?

2. What action are we not taking in this rulemaking?

3. Why are we converting our conditional approval of the Texas NO_X rule to full approval?

4. What are the lean burn engine rule requirements?

5. What kind of major source categories in the DFW area will the November 15, 1999, and the March 15, 1999, SIP revisions affect?

6. Are Texas' revised NO_X emissions specifications in the Texas NO_X rule consistent with the Federal guidelines?

7. What are Nitrogen Oxides?

8. What is a nonattainment area?

9. What is Reasonably Available Control Technology?

10. What are Alternative Control Techniques (ACTs)?

11. What are the Clean Air Act's RACT requirements for NO_X emissions?

12. What are definitions of major sources for NO_X?

13. What is a State Implementation Plan?

14. What is the Federal approval process for a SIP?

15. What does Federal approval of a SIP mean to me?

16. What areas in Texas will this action affect?

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

1. What Action Are We Taking?

On November 15, 1999, the Governor of Texas submitted rule revisions to the 30 TAC, Chapter 117, “Control of Air Pollution From Nitrogen Compounds,” as a revision to the SIP for certain source categories operating in certain ozone nonattainment areas. On March 3, 2000, 65 FR 11468, EPA had conditionally approved the Texas NO_X rule Chapter 117 as it existed in 1998, as a revision to the Texas SIP as meeting the RACT requirements for the H/GA and B/PA ozone nonattainment areas for the certain source categories. We based our conditional approval on a written commitment received from the TNRCC. In a July 19, 1999, letter, Texas committed that they would address our concerns about the potential for “paper credits” by November 15, 1999. On November 15, 1999, Texas submitted to us another SIP revision meeting their commitment. The November 15, 1999, revision addresses our concerns about the potential for “paper credits.” For detailed information on our concern, see section 3 of this document.

In this action, we are fully approving the Texas NO_X rules, as they existed in 1998, as RACT in the H/GA and B/PA ozone nonattainment areas for the following source categories: Utility boilers, steam generators, auxiliary steam boilers, and gas turbines used to generate electricity in H/GA and B/PA areas; commercial, institutional, or industrial boiler (non-utility boiler) and process heaters with a maximum rated capacity of 40 million British thermal units (Btu) per hour or greater, stationary gas turbines with a megawatt (mW) rating of 1.0 mW or higher; stationery rich burn internal combustion engines of 150 horsepower (hp) or greater in the H/GA area, and stationary internal combustion engines of 300 hp or greater in the B/PA area; and nitric acid manufacturing and adipic acid manufacturing plants.

The November 15, 1999, SIP submittal also included provisions to regulate NO_X emissions from lean burn, stationary, reciprocating internal combustion engines operating in the B/PA, H/GA, or D/FW ozone nonattainment areas. We are approving these revisions to section 117.205, concerning control of NO_X emissions from lean burn engines, as meeting RACT in the B/PA, H/GA, and D/FW ozone nonattainment areas.

For more information on the SIP revision and EPA's RACT evaluation, please refer to our TSD dated January 2000.

On March 15, 1999, the Governor of Texas submitted rule revisions to the Chapter 117, “Control of Air Pollution From Nitrogen Compounds,” as a revision to the SIP for the D/FW ozone nonattainment area adding controls for the same source categories listed above for the H/GA and B/PA areas, but for nitric acid manufacturing and adipic acid manufacturing plants. We are approving revisions to the Texas SIP concerning control of NO_X emissions in the D/FW area, as meeting RACT for the source categories listed in section 5.

In addition, when we conditionally approved the Texas NO_X rules on March 3, 2000, we inadvertently forgot to codify sections 117.305, 117.405, and 117.455 concerning Emissions Specifications; and section 117.419 concerning Notification, Recordkeeping, and Reporting Requirements. Today, we are converting our conditional approval of the Texas NO_X rules to a full approval. We are also codifying all of the Texas NO_X rules, as they existed in 1998, revised in 1999 by Texas, and approved by us, in this document.

2. What Action Are We Not Taking in This Rulemaking?

We are not acting on the D/FW ozone attainment plan in this particular action or on any other ozone nonattainment area plan.

3. Why Are We Converting Our Conditional Approval of the Texas NO_X Rule to a Full Approval?

The definition of actual daily heat input in 117.570(b)(2), previously allowed for adding one standard deviation to a source's baseline heat input or emission rate to establish the baseline for generating emission credits. Adding one standard deviation to the baseline in the equation stated in 117.570(b)(2) could generate “paper credits.” We understood from Texas that this allowance was an inadvertent oversight and they committed in a July 19, 1999, letter to change the rule and submit it as a SIP revision to our office by November 15, 1999. We conditionally approved the rule based on their commitment. Texas has adequately addressed our concern about potential generation of “paper credits” in its November 15, 1999, submission. Therefore, we are converting our prior conditional approval of the Texas NO_X rule to a full approval.

4. What Are the Lean Burn Engine Rule Requirements?

The State added a new source category to its NO_X rules—stationary lean burn, reciprocating internal combustion engines. The November 15, 1999, SIP revision sets NO_X and Carbon Monoxide (CO)emission specifications, in grams per horse power hour (g/hp-hr), for stationary lean burn, reciprocating internal combustion engines of 150 hp or greater in the H/GA ozone nonattainment area, and stationary lean burn, reciprocating internal combustion engines of 300 hp or greater in the B/PA and D/FW ozone nonattainment areas. See sections 117.205(d) and (e) of this rule. The following table contains a summary of the lean burn engine rule requirements for these sources in the H/GA, B/PA, and D/FW nonattainment areas.

This level of control represents RACT for lean burn engines. We are approving the CO requirements as a strengthening of the Texas SIP under section 110 of the Act. For a comparison of this lean burn emission specification with the lean burn engine emission specifications from some of the other states, please refer to pages 9 and 10 of our TSD dated January 2000.

5. What Kind of Major Source Categories in the DFW Area Will the November 15, 1999, and the March 15, 1999, SIP Revisions Affect?

These revisions will affect NO_X emissions from the following source categories: (1) Utility boilers, steam generators, auxiliary steam boilers, and gas turbines used to generate electricity in the D/FW ozone nonattainment area. See section 117.101 of this rule; (2) commercial, institutional, or industrial boilers (non-utility boiler) and process heaters in the D/FW ozone nonattainment area with a maximum rated capacity of 40 million British thermal units (Btu) per hour or greater, and stationary gas turbines in the D/FW area with a megawatt rating of 1.0 mW or higher; (3) stationary rich burn, reciprocating internal combustion engines of 300 hp or greater in the D/FW ozone nonattainment area. See section 117.205(d) of this rule; and (4) stationary lean burn, reciprocating internal combustion engines of 300 hp or greater in the D/FW ozone nonattainment area. See section 117.205(e) of this rule.

There are no existing nitric acid manufacturing and adipic acid manufacturing plants in the D/FW ozone nonattainment area. See the approved Emissions Inventory for the D/FW area.

6. Are Texas' Revised NO_X Emissions Specifications in the Texas NO_X Rule Consistent With Federal Guidelines?

The revised emission specifications in the Texas NO_X rule are consistent with Federal guidelines. 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/GA, B/PA, and D/FW nonattainment areas.

7. 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.

8. 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.

9. 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.

10. 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 tons per year (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.

11. 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 guidance 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), could provide you with more information about NO_X requirements.

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 ACT documents for several industrial categories. See section 10 of this document. States can use the information contained in the ACTs to develop their RACT rules. The Texas NO_X rules as of 1998 required final installation of the actual NO_X controls as expeditiously as practicable, but no later than November 15, 1999, in the H/GA and B/PA ozone nonattainment areas. On November 21, 1994, we conditionally granted an exemption to the D/FW ozone nonattainment area from NO_X controls under section 182(f). The D/FW area failed to reach attainment by November 15, 1999, and modeling results indicated that NO_X controls would help the area attain the ozone NAAQS. On April 20, 1999, we rescinded our conditional NO_X waiver, under section 182(f), for the D/FW area. See 64 FR 19283. The compliance deadline with the NO_X RACT requirements for affected sources in the D/FW area is as soon as practicable, but no later than February 15, 2001. EPA generally views two years as an acceptable time frame to implement RACT requirements. The Texas deadline is less than two years. We are of the opinion that the compliance date of February 15, 2001, is practicable compared with the attainment demonstration dates of severe ozone nonattainment areas in the country. We will closely examine and question any attempts to extend the compliance dates beyond the February 15, 2001, date for such NO_X sources in the D/FW area in future.

12. 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 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.

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. 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. The D/FW area is a serious ozone nonattainment area, so the major source size for the D/FW area is 50 tpy or more, when uncontrolled.

13. 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.

14. 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 (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.

15. 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.

16. What Areas in Texas Will This Action Affect?

The rule revisions we are approving today affect the B/PA, H/GA, and D/FW ozone nonattainment areas. We have classified the B/PA area as a moderate ozone nonattainment area, and includes the following counties: Hardin, Jefferson, and Orange. We have classified the H/GA area as a severe ozone nonattainment area, and includes the following counties: Brazoria, Chambers, Fort Bend, Harris, Galveston, Liberty, Montgomery, and Waller. We have classified the D/FW area as a serious ozone nonattainment area, and includes the following counties: Collin, Dallas, Denton, and Tarrant. If you are in one of these counties, you should refer to the Texas NO_X rules to determine if and how today's action 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 October 31, 2000 without further notice unless we receive adverse comment by October 2, 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 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). For the same reason, this 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 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 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. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective October 31, 2000.

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 October 31, 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) of the Act.

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

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

PART 52—[AMENDED]

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

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

Subpart SS—Texas

2. In § 52.2270 the entry for Chapter 117 in the table in paragraph (c) is revised to read as follows: