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Approval and Promulgation of Implementation Plans; Texas; Revisions to Regulations for Control of Air Pollution by Permits for New Sources and Modifications Including Incorporation of Marine Vessel Emissions in Applicability Determinations
[Federal Register: March 11, 2004 (Volume 69, Number 48)] [Proposed Rules] [Page 11577-11580] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr11mr04-29] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [TX-165-1-7610; FRL-7635-1] Approval and Promulgation of Implementation Plans; Texas; Revisions to Regulations for Control of Air Pollution by Permits for New Sources and Modifications Including Incorporation of Marine Vessel Emissions in Applicability Determinations AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: EPA proposes to approve revisions to the Texas State Implementation Plan (SIP). This includes revisions that the Texas Commission on Environmental Quality (TCEQ) submitted to EPA on September 16, 2002, to revise the definitions of ``building, structure, facility, or installation'' and ``secondary emissions'' as defined in section 116.12 and section 116.160. This also includes revisions to section 116.160 and section 116.162 to incorporate updated Federal regulation citations. This action is being taken under section 110 of the Federal Clean Air Act, as amended (the Act or CAA). DATES: Comments on the proposed action must be received by April 12, 2004. ADDRESSES: Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in the General Information section of the SUPPLEMENTARY INFORMATION below. FOR FURTHER INFORMATION CONTACT: Stephanie Kordzi of the Air Permits Section at (214) 665-7520, or kordzi.stephanie@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or ``our'' means EPA. Table of Contents I. What State Rules Are Being Addressed in the Document? II. What is the legal basis for EPA's proposed approval of these State rules? III. Have the Requirements for a SIP Revision Been Met? IV. What Action is EPA Taking? V. General Information VI. Statutory and Executive Order Reviews I. What State Rules Are Being Addressed in This Document? In today's action we are proposing to approve into the Texas SIP revisions to Title 30 of the Texas Administrative Code (30 TAC) sections 116.12, Nonattainment Review Definitions; 116.160, Prevention of Significant Deterioration Requirements; and 116.162, Evaluation of Air Quality Impacts. The TCEQ adopted these revisions on October 10, 2001, and submitted the revisions to us for approval as a revision to the SIP on September 16, 2002. 30 TAC section 116.12--Nonattainment Review. The previous State version of this section, which is the existing SIP-approved version (see 65 FR 43994, July 17, 2000), excludes the ``activities of any vessel'' from the definition of ``building, structure, facility, or installation.'' The revised version that the State adopted on October 10, 2001, and that the State has submitted for EPA's approval, deletes the ``except the activities of any vessel'' clause from 116.12(4). Texas has explained that this change will allow the inclusion of marine vessel emissions in applicability determinations for nonattainment permits. 30 TAC section 116.160--Prevention of Significant Deterioration Requirements. The previous State version of this section, which is the existing SIP-approved version (see 67 FR 58697, September 18, 2002), incorporates by reference the Federal Prevention of Significant Deterioration (PSD) regulations at 40 CFR 52.21, as amended June 3, 1993. Those regulations excluded the ``activities of any vessel'' from the definition of ``building, structure, facility, or installation.'' The revised version that the State adopted on October 10, 2001, and that the State has submitted for EPA's approval, excludes the CFR definition of ``building, structure, facility, or installation,'' because the CFR definition includes language vacated by the court in Natural Resources Defense Council v. EPA, 725 F.2d 761 (D.C. Cir. 1984) (see discussion below under ``Legal Background''). Instead, the revised version of section 116.160 defines ``building, structure, facility, or installation'' consistent with the definition in revised section 116.12, discussed above. Texas has explained that this change will allow the inclusion of marine vessel emissions in applicability determinations for PSD permits. In addition, the revised section 116.160 replaces the definition of ``secondary emissions'' at 40 CFR 52.21 with language consistent with the NRDC decision. The revised section 116.160 otherwise incorporates the version of the Federal PSD air quality regulations promulgated at 40 CFR 52.21 in 1996, as well as the most recent version of 40 CFR 51.301 (amended 1999). [[Page 11578]] Finally, revised subsections 116.160(d) and (e) make minor changes such as clarifying references to the ``administrator'' and ``executive director.'' 30 TAC section 116.162, Evaluation of Air Quality Impacts. EPA approved the previous State version of this section into the SIP on August 19, 1997. 62 FR 44083. The new version submitted to EPA contains only minor typographical and citation changes. II. What Is the Legal Basis for EPA's Proposed Approval of These State Rules? Section 110 of the Act requires States to develop air pollution regulations and control strategies to ensure that State air quality meets the National Ambient Air Quality Standards. Each State must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP. In order for State regulations to be incorporated into the Federally-enforceable SIP, States must formally adopt these regulations and control strategies consistent with State and Federal requirements. Section 116 of the Act provides that the States retain the authority to adopt measures no less stringent than federal requirements, unless otherwise preempted. Once a State adopts a rule, regulation, or control strategy, the State may submit it to us for inclusion into the SIP in accordance with section 110 of the Act. We must then decide on an appropriate Federal action, provide public notice and seek additional comment regarding the proposed Federal action on the State submission. If we receive relevant adverse comments, we must address them before taking 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. Additional details on the legal basis for this proposed rule may be found in the Technical Support Document (TSD) for this action. III. Have the Requirements for Approval of a SIP Revision Been Met? Currently, the State of Texas issues and enforces PSD permits directly in all areas of the State without final approval by EPA, with the exception of Indian lands and situations where the applicability determinations would be affected by dockside emissions of vessels. As currently approved, Chapter 116 incorporates the PSD/Nonattainment (NA) review permitting requirements and definitions from the vacated 1982 regulations in section 116.12(4) for NA and section 116.160(a) for PSD. Final approval of the changes to section 116.12 and section 116.160(c) will grant full approval of the State's preconstruction permitting SIP for all sources, except for those sources located on land under the control of Indian governing bodies. These changes to section 116.12 are not inconsistent with the requirements of the Clean Air Act. IV. What Action Is EPA Taking? We are approving as a revision to the Texas SIP revisions of 30 TAC sections 116.12, Nonattainment (NA) Review Definitions; 116.160, Prevention of Significant Deterioration Requirements; and 116.162, Evaluation of Air Quality Impacts, which Texas submitted on September 16, 2002. We are also proposing to revise 40 CFR 52.2303, Significant deterioration of air quality, as follows. First, we are proposing to remove paragraph (d), which retained applicable requirements of 40 CFR 52.21 for new major sources or major modifications to existing stationary sources for which applicability determinations of PSD would be affected by dockside emissions of vessels. Because the regulations that we are approving today enable Texas to make PSD applicability determinations for such sources, paragraph (d) is no longer necessary. Second, we are proposing to revise and reorganize paragraph (a) to reflect the current information concerning Texas' PSD program and to make paragraph (a) easier to understand. V. General Information A. How Can I Get Copies of This Document and Other Related Information? 1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under TX-165-1-7610. The official public rulemaking file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the official public rulemaking file does not include Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. The official public rulemaking file is available for public viewing at the Air Permitting Section, EPA Region 6, 1445 Ross Avenue, Dallas, TX. EPA requests that if at all possible you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Offices official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. 2. Copies of the State submittal and EPA's Technical Support Document are also available for public inspection during normal business hours, by appointment at the State air agency: Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753. 3. Electronic Access. You may access this Federal Register document electronically through the Regulations.gov Web site at http:// www.regulations.govwhere you can find, review, and submit comments on Federal rules that have been published in the Federal Register, the Government's legal newspaper, and are open for comment. For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information the disclosure of which is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection. B. How and To Whom Do I Submit Comments? You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number, TX-165-1-7610, in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked ``late.'' EPA is not required to consider these late comments. 1. Electronically. If you wish to submit comments electronically (via e-mail, Regulations.gov, or on disk or CD-ROM), EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any [[Page 11579]] cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. The EPA's policy is that EPA will not edit your comments. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the public rulemaking file. 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. a. E-mail Comments may be submitted by electronic mail (e-mail) to Ms. Stephanie Kordzi at kordzi.stephanie@epa.gov, Subject ``Public comment on ID No. TX-165-1-7610.'' In contrast to the Regulations.gov Web site, EPA's e-mail system is not an ``anonymous'' system. If you send an e-mail comment directly to EPA, your e-mail address will be automatically captured and included as part of the comment that is placed in the official public rulemaking file. b. Regulations.gov. Comments may be submitted electronically at the Regulations.gov Web site, the central online rulemaking portal of the United States government. Every effort is made to ensure that the Web site includes all rule and proposed rule notices that are currently open for public comment. You may access the Regulations.gov Web site at http://www.regulations.gov.