[Federal Register Volume 78, Number 24 (Tuesday, February 5, 2013)]
[Proposed Rules]
[Pages 8076-8083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02499]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2006-0600; FRL-9776-4]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to New Source Review (NSR) State Implementation Plan (SIP);
Emergency Orders
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing disapproval of revisions to the SIP for the
State of Texas that relate to Emergency Orders. This includes portions
of SIP revisions that relate to Emergency Orders that were submitted by
Texas on August 31, 1993; December 10, 1998; February 1, 2006; and July
17, 2006. EPA is proposing disapproval of these revisions because these
regulations do not meet the requirement of the Clean Air Act (the
``Act'' or ``CAA''), EPA regulations, and applicable policy and
guidance. EPA is proposing this action under section 110 and parts C
and D of Title I of the Act. EPA is returning the non-air portions of
the aforementioned SIP submittals to the State because these provisions
cannot be included in the SIP.
DATES: Comments must be received on or before March 7, 2013.
ADDRESSES: Submit your comments identified by Docket ID No. EPA-R06-
OAR-2006-0600 by one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
(2) Email: Ms. Ashley Mohr at [email protected].
(3) Fax: Ms. Ashley Mohr, Air Permits Section (6PD-R), at fax
number 214-665-6762.
(4) Mail: Ms. Ashley Mohr, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
(5) Hand or Courier Delivery: Ms. Ashley Mohr, Air Permits Section
(6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733. Such deliveries are accepted only between the
hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays.
Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2006-0600. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any
[[Page 8077]]
personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
http://www.regulations.gov or email. The http://www.regulations.gov web
site is an ``anonymous access'' system, which means that EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send an email comment directly to EPA
without going through http://www.regulations.gov your email address
will be automatically captured and included as part of the comment that
is placed in the public docket and made available on the internet. If
you submit an electronic comment, EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 Freedom of
Information Act Review Room between the hours of 8:30 a.m. and 4:30
p.m. weekdays except for legal holidays. Contact the person listed in
the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese
at (214) 665-7253 to make an appointment. If possible, please make the
appointment at least two working days in advance of your visit. There
will be a 15 cent per page fee for making photocopies of documents. On
the day of the visit, please check in at the EPA Region 6 reception
area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
The State submittals, which are part of the EPA docket, are also
available for public inspection at the State Air Agency during official
business hours by appointment: Texas Commission on Environmental
Quality (TCEQ), Office of Air Quality, 12124 Park 35 Circle, Austin,
Texas 78753.
FOR FURTHER INFORMATION CONTACT: Ms. Ashley Mohr, Air Permits Section
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733; telephone (214) 665-7289; fax
number (214) 665-6762; email address [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever any
reference to ``we,'' ``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background
II. What is EPA's evaluation of the Texas Emergency Orders Program?
A. Does the Emergency Orders Program meet the requirements for
projects that are subject to New Source Review (NSR)?
1. Summary of the Federal Program for Major NSR
2. What is EPA's evaluation?
III. Proposed Action
IV. Statutory and Executive Order Reviews
I. Background
On August 31, 1993, TCEQ submitted its regulations for Emergency
Orders. Revisions to these regulations were submitted on December 10,
1998; February 1, 2006; and July 17, 2006. The pending SIP revisions
are summarized in Tables 1 and 2 below. Additional information is
included in the Technical Support Document (TSD) for this action, which
is in the docket.
Table 1--Summary of Pending SIP Submittals Addressed in This Action
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Date
Date Date effective Sections related to emergency
Description of SIP submittal submitted adopted by as State orders
to EPA State rule
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Original Recodification of Chapter 116.... 8/31/1993 8/16/1993 9/13/1993 Chapter 116: Submittal of
sections 116.410 through
116.418.
Emergency and Temporary Orders............ 12/10/1998 11/18/1998 12/10/1998 Chapter 35: Submittal of
sections 35.1-35.3, 35.11-
35.13, 35.21-35-30, and
35.801-35.809
Chapter 116: Revisions to
section 116.410; Repeal of
sections 116.411-116.418,
which were replaced by
sections 35.802-35.809
Federal New Source Review Permits Rules... 2/1/2006 1/11/2006 2/1/2006 Chapter 116: Recodification
of Sec. 116.410 to Sec.
116.1200.
Revision to Provisions for Emergency 7/17/2006 6/28/2006 7/19/2006 Chapter 35: Revisions to
Orders. sections 35.801, 35.802,
35.804, 35.805, 35,807, and
35.808.
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[[Page 8078]]
Table 2--Summary of the Individual Revisions to Each Section Evaluated
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Date Effective
Section--title submitted Adopted by as State Comments
to EPA State rule
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30 TAC Chapter 35--Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permits
Conditions
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Subchapter A--Purpose, Applicability, and Definitions
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Section 35.1--Purpose..................... 12/10/1998 11/18/1998 12/10/1998 Initial adoption.
Section 35.2--Applicability............... 12/10/1998 11/18/1998 12/10/1998 Initial adoption.
Section 35.3--Definitions................. 12/10/1998 11/18/1998 12/10/1998 Initial adoption.
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Subchapter B--Authority of the Executive Director
================================================================================================================
Section 35.11--Purpose and Applicability........................................................................
Section 35.12--Authority of the Executive Director..............................................................
Section 35.13--Eligibility of the Executive Director............................................................
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Subchapter C--General Provisions
================================================================================================================
Section 35.21--Action by the Commission or Executive Director...................................................
Section 35.22--Term and Renewal of Orders.......................................................................
Sec. 35.23--Effect of Orders..................................................................................
Section 35.24--Application for Emergency or Temporary Orders....................................................
Section 35.25--Notice and Opportunity for Hearing...............................................................
Section 35.26--Contents of Emergency or Temporary Orders........................................................
Section 35.27--Hearing Required.................................................................................
Section 35.28--Hearing Requests.................................................................................
Sec. 35.29--Procedures for a Hearing..........................................................................
Section 35.30--Application Fees.................................................................................
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Subchapter K--Air Orders \1\
================================================================================================================
Section 35.801--Emergency Orders Because of Catastrophe.........................................................
Sec. Sec. 35.802--Application for an Emergency Order.........................................................
Section 35.803--Public Notification.............................................................................
Section 35.804--Issuance of an Emergency Order..................................................................
Section 35.805--Contents of an Emergency Order..................................................................
Section 35.806--Requirement to Apply for a Permit or Modification...............................................
Section 35.807--Affirmation of an Emergency Order...............................................................
[[Page 8079]]
Section 35.808--Modification of an Emergency Order..............................................................
Section 35.809--Setting Aside an Emergency Order................................................................
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30 TAC Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
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Section 116.1200--Applicability........... 8/31/1993 8/16/1993 9/13/1993 Initial adoption as section
116.410.
12/10/1998 11/18/1998 12/10/1998 Revised introductory
paragraph.
2/1/2006 1/11/2006 2/1/2006 Redesignated to section
116.1200.
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In general, the regulations governing Emergency Orders are found in
30 TAC Chapter 35--Emergency and Temporary Orders and Permits;
Temporary Suspension or Amendment of Permit Conditions. These
regulations provide the process by which the Texas Commission on
Environmental Quality (TCEQ) may issue a Temporary Order, Emergency
Order, Mandatory Order, Permissive Order, and Prohibitory Order and
include provisions that apply to both air orders and non-air orders. As
part of this action, we are reviewing only those portions that are
applicable to the issuance of air Emergency Orders. Under the CAA, SIPs
can only include provisions addressing criteria pollutants and their
precursors, so the portions of the Texas submittals related to non-air
orders cannot be included in the SIP. Therefore, EPA is returning the
non-air portions of the aforementioned submittals to the State.
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\1\ On August 18, 1993, sections 116.411 through 116.418 were
adopted under Chapter 116, Subchapter E--Emergency Orders. On
November 18, 1998, these regulations were replaced with sections
35.802 through 35.809 and placed in Chapter 35, Subchapter K.
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Under the provisions in 30 TAC Chapter 35, the TCEQ may issue an
Emergency Order under its air quality program which authorizes
immediate action for the addition, replacement, or repair of
facilities, control equipment, or the repair or replacement of roads,
bridges, and other infrastructure whenever a catastrophe necessitates
such construction and emissions otherwise precluded under the Texas
Clean Air Act. See 30 TAC 35.801. Additional information on these
regulations, and the specific provisions included in the regulations,
is provided in TSD for this action.
Today, EPA proposes to disapprove the regulations identified in
Table 2 above, except for provisions that do not relate to the air
quality requirements of the Act. EPA is returning the following non-air
portions of the submitted rules to the State: 30 TAC 35.13; 35.24(b)
and (e)(6)-(7); and 35.25(e)(1)-(8) and (11)-(15). While we are
proposing disapproval of the Emergency Orders Program, EPA does
recognize the merits of such a state-only Program that allows for
application review and order issuance to authorize proposed actions
following catastrophes that often necessitate immediate action by
owners and operators to minimize additional downstream impacts
resulting from the catastrophe. Texas's Emergency Orders Program does
allow for coordination between the source and the TCEQ to facilitate
expedited review while maintaining a review process, as described in
the June 17, 2006 SIP submittal. Other State and local agencies operate
programs similar to the Emergency Orders program. In these cases, the
regulations containing the provisions related to those programs are
located within the states' air quality permitting regulations, not in
the SIP. EPA may exercise its enforcement discretion on a case-by-case
basis to evaluate the owner or operator's proposed action in response
to a catastrophe and utilizes enforcement discretion to allow for
appropriate immediate actions to minimize impacts and restore the
sources to full operation.
II. What is EPA's evaluation of the Texas Emergency Orders Program?
A. Does the Emergency Orders Program meet the requirements for projects
that are subject to New Source Review (NSR)?
The Emergency Orders Program could be used to authorize
construction via the issuance of an Order prior to a source submitting
an application for a NSR preconstruction permit. The issued Emergency
Order is an interim authorization for the emissions of air contaminants
that are associated with the construction or modification of any source
or facility in response to a catastrophe, as defined in 30 TAC 35.801.
Under the Emergency Orders Program, an owner or operator can apply for
an Emergency Order that would ``authorize immediate action for the
addition, replacement, or repair of facilities or control equipment, or
the repair or replacement of roads, bridges, or other infrastructure,
and authorizing associated emissions of air contaminants.'' See 30 TAC
35.801.
[[Page 8080]]
1. Summary of the Federal Program for Major NSR
The requirements for Major NSR are in Title I, Parts C and D of the
CAA and in 40 CFR 51.165 and 51.166 and apply to the construction and
modification of major stationary sources. The Major NSR requirements
apply to projects that would be new major stationary sources and
projects that would be major modifications under the requirements for
Prevention of Significant Deterioration (PSD) under 40 CFR 51.166 and
the requirements for Nonattainment Area New Source Review (NNSR) under
40 CFR 51.165.
The requirements for Major NSR apply to the construction or
modification of stationary sources which emit, or have the potential to
emit a regulated NSR pollutant at greater than 100 tons per year for
most stationary sources. See CAA Sec. 302(j).\2\ Major NSR is required
under two programs as described below:
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\2\ In certain nonattainment areas, the CAA specifies lower
thresholds based upon the degree of nonattainment. See CAA at
Sec. Sec. 182(c), (d), and (d); 187(c)(1); and 189(b)(3). See 40
CFR 51.165(a)(1)(iv). Also, in a PSD area, under the CAA Sec.
169(1), a major stationary source is either 100 tons per year or
more if the source belongs to a category identified in the
definition, otherwise it is major if it emits or has the potential
to emit 250 tons per year or more. See 40 CFR 51.166(b)(1).
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Prevention of Significant Deterioration (PSD). The requirements for
PSD are under the CAA Title I, Part C and under 40 CFR 51.166. PSD
applies to the construction and modification of major stationary
sources for the emissions of any pollutant for which the region (or
portion thereof) is designated attainment or unclassifiable. See CAA at
Sec. 161 and 40 CFR 51.166(a)(7)(i). Requirements of the PSD
Permitting Program include the following:
The PSD permit must be issued prior to commencement of
construction and set forth emission limitations which conform to the
CAA. CAA Sec. 165(a)(1) and 40 CFR 51.166(a)(7).
The proposed permit has been subject to review in
accordance with CAA requirements and the regulations promulgated under
CAA, and the permit has been subject to public hearing and opportunity
for interested persons to submit comments. CAA Sec. 165(a)(2) and 40
CFR 51.166(a)(7) & (q).
The emissions from the construction or operation of the
source will not cause, or contribute to, air pollution in excess of the
following: (1) Maximum allowable increase or maximum allowable
concentration for any pollutant in any area in which PSD applies; (2)
National Ambient Air Quality Standard; and (3) Any other applicable
emission standard or standard of performance under the Act. CAA Sec.
165(a)(3) and 40 CFR 51.166(c).
The source is subject to best available control technology
and the permitted emissions represent that technology. CAA Sec.
165(a)(4) and 51.166(j).
The requirements for protection of Class I areas have been
met by the source. CAA Sec. 165(a)(5) and 40 CFR 51.166(p).
There has been an analysis of the air quality impacts
projected to occur as the result of growth associated with the source.
CAA Sec. 165(a)(6) and 40 CFR 51.166(o).
Monitoring has been conducted, as necessary, to determine
the effect which emissions from any such facility may have, or is
having, on air quality in any area which may be affected by emissions
from such source. CAA Sec. 165(a)(7) and 40 CFR 51.166(m).
Specific requirements applicable to source proposed to be
located in Class III areas have been met by the source. CAA Sec.
165(a)(8).
Nonattainment New Source Review (NNSR). The requirements for NNSR
are under the CAA Title I, Part D and under 40 CFR 51.165. NNSR applies
to the construction and modification of major stationary sources for
the emissions of any pollutant for which the region (or portion
thereof) is designated nonattainment. See CAA at Sec. 172(c)(5) and 40
CFR 51.165(a)(2)(i). Requirements of the NNSR Program include the
following:
Emission increases must be offset by reductions that are
greater than the increase. CAA Sec. 173(a)(1).
The proposed source is required to comply with lowest
achievable emission rate. CAA Sec. 173(a)(2).
The owner or operator must demonstrate that all major
stationary sources owned by such person (or entity) are in compliance,
or on a schedule for compliance, with all applicable emission
limitations and standards under the Act. CAA Sec. 173(a)(3).
EPA has not determined that the State is not adequately
implementing the SIP for the nonattainment area in which the proposed
source is to be constructed or modified. CAA Sec. 173(a)(4).
An analysis of alternative sites, sizes, production
processes, and environmental control techniques for such proposed
source demonstrates that benefits of the proposed source significantly
outweigh the environmental and social costs imposed as a result of its
location, construction, or modification. CAA Sec. 173(a)(5).
The PSD and NNSR Programs each require a new major stationary
source or major modification to obtain a preconstruction permit prior
to commencing construction. For PSD see CAA at Sec. 165(a)(1) and 40
CFR 51.166(a)(7)(iii). For NNSR see CAA Sec. 172(c)(5) and 40 CFR
51.165(a)(2)(i)-(iii). Accordingly, a new or modified major stationary
source or major modification may not be constructed without a permit
that meets the requirements of the applicable Major NSR Program.
2. What is EPA's evaluation?
As discussed in detail in the TSD for this action, in the July 17,
2006 SIP submittal TCEQ characterizes its Emergency Orders Program as a
program which ``contemplate(s) and call(s) for a comprehensive
technical review.'' However, notwithstanding the fact that TCEQ states
that the ``comprehensive review'' for an Emergency Order is at least as
comprehensive as the TCEQ's review of permit applications, the
Emergency Orders Program does not meet all the requirements applicable
to NSR. Specifically, the issuance of Emergency Orders to projects that
are subject to Major NSR fail to meet the requirements of the Clean Air
Act and the implementing regulations as follows:
The Emergency Orders Program does not satisfy the public
participation required for NSR at the time the Emergency Order is
issued. Public participation requirements that are applicable to
projects that are subject to Major NSR are not met prior to the
issuance of the Emergency Order, which would authorize the construction
of such projects. Instead, the applicable public participation for
Major NSR projects will take place after the issuance of the Emergency
Order when the applicant submits their application for a Major NSR
permit. The source has 60 days following the issuance of the Emergency
Order to submit the permit application. See 30 TAC 35.806. Meanwhile,
the applicant is authorized by the Emergency Order to begin
construction of the Major NSR project prior to permit application
submission and permit issuance. Consequently, the public is not
afforded an opportunity to review and comment on the proposed project
(as required under the CAA and implementing regulations) until after
construction has begun; thus the public has not been provided
meaningful opportunity to participate prior to commencement of
construction of the Major NSR project. See 40 CFR 51.161
[[Page 8081]]
and 51.166(q). It is important to note, that while we are evaluating
the Emergency Orders Program against the Major NSR requirements, the
Minor NSR Program also requires public participation as part of the
construction permitting process.\3\
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\3\ The Minor NSR requirements for public participation are
found at 40 CFR 51.161, and require prior to construction or
modification the availability for public inspection of information
regarding the construction (including the State's analysis of the
effect on air quality), a 30-day period for submittal of public
comment, and a notice by prominent advertisement in the area
affected. EPA recognizes a state's ability to tailor the scope of
its Minor NSR program as necessary to achieve and maintain the
NAAQS. See 77 FR 74140.
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The Emergency Orders Program does not meet the requirement
that a NSR permit be issued prior to the commencement of construction
of a Major Source. The CAA contemplates a Major NSR permit that is
issued as a final authorization that certifies that the Major NSR
permit meets all the requirements of PSD and NNSR. See CAA at section
165(a) and 173(a) and 40 CFR 51.165(a)(2)(i) through (ii), and
51.166(a)(7)(i) through (v). In contrast, the Emergency Order is an
interim authorization for immediate action, including construction,
following a catastrophe and is not a final issued Major NSR permit.
Notwithstanding the fact that the TCEQ conducts a review of Emergency
Order applications, which TCEQ characterized as being equivalent to the
technical review of a permit, as discussed above, the technical review
does not include all required preconstruction review elements and the
issued order is an interim authorization and not a final issued Major
NSR permit. The Emergency Orders Program does require that a source
submit an application for any necessary air permits, including Major
NSR permits, within 60 days following the issuance of an Emergency
Order. See 30 TAC 35.806. These permits are required to be applied for
and issued in accordance with the applicable New Source Review
requirements. However, the New Source Review permitting would occur
following the commencement of construction at the source. Therefore,
the Emergency Orders Program does not meet the CAA requirement that the
Major NSR permit be issued prior to a source commencing construction.
For PSD see CAA at Sec. 165(a)(1) and 40 CFR 51.166(a)(7)(iii). For
NNSR see CAA Sec. 172(c)(5) and 40 CFR 51.165(a)(2)(i)-(iii).
Based on our review of the Emergency Orders Program, which includes
authorizations of NSR actions, and comparison with the applicable
requirements for Major NSR, we are proposing to disapprove the Program
on the basis that it does not meet all applicable requirements. While
we are proposing disapproval of the Emergency Orders Program, EPA would
like to recognize the merits of having a state-only Program that allows
for application review and order issuance to authorize proposed actions
following catastrophes that often necessitate immediate action by
owners and operators to minimize additional downstream impacts
resulting from the catastrophe. Texas's Emergency Orders Program does
allow for coordination between the source and the TCEQ to facilitate
expedited review while maintaining a review process, as described in
the June 17, 2006 SIP submittal.
Other State and local agencies operate programs similar to the
Emergency Orders Program to allow for the authorization of owners and
operators to take immediate actions, including construction, following
catastrophes that include natural disasters, such as hurricanes,
floods, and earthquakes, and plant fires or explosions. In these cases,
the regulations containing the provisions related to the program
operated by the State or local agency are located within the states'
air quality permitting regulations, not in the SIP, and EPA may
exercise enforcement discretion on a case-by-case basis to evaluate the
owner or operators' proposed actions in response to catastrophe. For
example, in 2005, the EPA Region 6 office utilized enforcement
discretion to allow facilities impacted by Hurricane Rita to take
appropriate immediate actions to bring the sources back up to full
operation and minimize additional impacts resulting from the
catastrophe. In this case, EPA issued Administrative Compliance Orders
after conducting case-by-case review of the proposed actions at a
particular facility.4 5 More recently, EPA has exercised
enforcement discretion in response to the impacts caused by Hurricane
Sandy in both Regions 1 and 2. Following this natural disaster, EPA
issued a No Action Assurance to allow loading and unloading of fuel at
bulk gasoline and marine loading terminals and associated truck loading
racks in New York and New Jersey without the required vapor recovery/
combustion if the facility was not equipped with this control equipment
or the equipment had been damaged by Sandy.\6\ EPA exercised its
enforcement discretion by issuing a No Action Assurance to address
severe fuel shortages resulting from Hurricane Sandy's impacts. In each
of the examples here, and in fact in any disaster situation, EPA has
acted very quickly to gather facts and take appropriate action, so that
critical systems are not impeded from operating as a result of the
catastrophe.
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\4\ Administrative Compliance Order dated September 28, 2005
issued by the EPA Region 6 Compliance Assurance and Enforcement
Division to Georgia Pacific for the Port Hudson facility.
\5\ Administrative Compliance Order dated November 17, 2005
issued by the EPA Region 6 Compliance Assurance and Enforcement
Division to the Municipality of Chambers County.
\6\ No Action Assurance dated November 2, 2012 issued by the EPA
Assistant Administrator to the states of New York and New Jersey.
Available at: http://www.epa.gov/enforcement/air/documents/policies/mobile/naa-vaporrecovery.pdf.
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While we are proposing disapproval of the Emergency Orders Program
on the basis that the Program does not meet the necessary federal
requirements for approval into the Texas SIP, this proposed action will
not impact how the TCEQ has been operating the Program in response to
catastrophes since the Program's original adoption into the State's
regulations in August 1993. EPA will continue to exercise enforcement
discretion on a case-by-case basis for actions proposed by sources in
Texas in response to catastrophes, while the TCEQ continues to rely
upon the technical review process provided by the Emergency Orders
Program to ensure that the proposed actions are consistent with the
applicable State requirements and will not interfere with the
attainment or maintenance of national ambient air quality standards or
violate applicable portions of the control strategy.
III. Proposed Action
Under section 110(k)(3) of the Act, and for the reasons stated
above, EPA proposes to disapprove the following revisions to the Texas
SIP.
New 30 TAC 35.1--Purpose--submitted December 10, 1998.
New 30 TAC 35.2--Applicability--submitted December 10,
1998.
New 30 TAC 35.3--Definitions--submitted December 10, 1998.
New 30 TAC 35.11--Purpose and Applicability--submitted
December 10, 1998.
New 30 TAC 35.12--Authority of the Executive Director--
submitted December 10, 1998.
New 30 TAC 35.21--Action by the Commission or Executive
Director--submitted December 10, 1998.
New 30 TAC 35.22--Term and Renewal of Orders--submitted
December 10, 1998.
New 30 TAC 35.23--Effect of Orders--submitted December 10,
1998.
New 30 TAC 35.24--Application for Emergency or Temporary
Orders--
[[Page 8082]]
submitted December 10, 1998. No action is proposed on subsection (b)
and paragraphs (e)(6)-(7) which are outside the scope of the SIP.
New 30 TAC 35.25--Notice and Opportunity for Hearing--
submitted December 10, 1998. No action is proposed on paragraphs
(e)(1)-(8) and (11)-(15) which are outside the scope of the SIP.
New 30 TAC 35.26--Contents of Emergency or Temporary
Order--submitted December 10, 1998.
New 30 TAC 35.27--Hearing Required--submitted December 10,
1998.
New 30 TAC 35.28--Hearing Requests--submitted December 10,
1998.
New 30 TAC 35.29--Procedures for a Hearing--submitted
December 10, 1998.
New 30 TAC 35.30--Application Fees--submitted December 10,
1998.
New 30 TAC 35.801--Emergency Orders Because of a
Catastrophe--submitted December 10, 1998; revision submitted July 17,
2006.
New 30 TAC 35.802--Applications for an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.411); revision submitted
December 10, 1998 (as redesignated to 30 TAC 35.802); revision
submitted July 17, 2006.
New 30 TAC 35.803--Public Notification--submitted August
31, 1993 (as 30 TAC 116.412); and revision submitted December 10, 1998
(as redesignated to 30 TAC 35.803).
New 30 TAC 35.804--Issuance of an Emergency Order--
submitted December 10, 1998; revision submitted July 17, 2006.
New 30 TAC 35.805--Contents of an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.415); revision submitted
December 10, 1998 (as redesignated to 30 TAC 35.805); revision
submitted July 17, 2006.
New 30 TAC 35.806--Requirement to Apply for a Permit or
Modification--submitted August 31, 1993 (as 30 TAC 116.416); revision
submitted December 10, 1998 (as redesignated to 30 TAC 35.806).
New 30 TAC 35.807--Affirmation of an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.414); revision submitted
December 10, 1998 (as redesignated to 30 TAC 35.807); revision
submitted July 17, 2006.
New 30 TAC 35.808--Modification of an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.417); revision submitted
December 10, 1998 (as redesignated to 30 TAC 35.808); revision
submitted July 17, 2006.
New 30 TAC 35.809--Setting Aside an Emergency Order--
submitted August 31, 1993 (as 30 TAC 116.418); revision submitted
December 10, 1998 (as redesignated to 30 TAC 35.809).
New 30 TAC 116.1200--Applicability--submitted August 31,
1993 (as 30 TAC 116.411); revisions submitted December 10, 1998;
revision submitted February 1, 2006 (as redesignated to 30 TAC
116.1200).
IV. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because this proposed SIP disapproval under section 110 and subchapter
I, part D of the Clean Air Act will not in-and-of itself create any new
information collection burdens but simply disapproves certain State
requirements for inclusion into the SIP. Burden is defined at 5 CFR
1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) 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. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 and subchapter I, part D of
the Clean Air Act will not in-and-of itself create any new requirements
but simply disapproves certain State requirements for inclusion into
the SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. The fact that
the Clean Air Act prescribes that various consequences (e.g., higher
offset requirements) may or will flow from this disapproval does not
mean that EPA either can or must conduct a regulatory flexibility
analysis for this action. Therefore, this action will not have a
significant economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 ``for State, local, or tribal governments or the private
sector.'' EPA has determined that the proposed disapproval action does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This action proposes to
disapprove 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.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), 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.''
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national
[[Page 8083]]
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 disapproves certain State
requirements for inclusion into the SIP and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. Thus, Executive Order 13132 does not
apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (59 FR 22951, November 9, 2000), because the SIP
EPA is proposing to disapprove would not apply in Indian country
located in the State, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997).This proposed SIP disapproval under section 110 and subchapter I,
part D of the Clean Air Act will not in-and-of itself create any new
regulations but simply disapproves certain State requirements for
inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices, based on the criteria
of the Clean Air Act. Accordingly, this action merely proposes to
disapprove certain State requirements for inclusion into the SIP under
section 110 and subchapter I, part D of the Clean Air Act and will not
in-and-of itself create any new requirements. Accordingly, it does not
provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Carbon monoxide, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 28, 2013.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2013-02499 Filed 2-4-13; 8:45 am]
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