Approval and Promulgation of Air Quality Implementation Plans; Texas; Revision to the State Implementation Plan (SIP) Addressing PM-10 for El Paso

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-14-1-6091; FRL-4825-9]

Approval and Promulgation of Air Quality Implementation Plans;

Texas; Revision to the State Implementation Plan (SIP) Addressing PM-10

for El Paso

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action approves a revision to the Texas State

Implementation Plan (SIP) for PM-10 in El Paso. PM-10 is defined as

particulate matter with an aerodynamic diameter less than or equal to a

nominal 10 micrometers. The EPA is also approving the PM-10 SIP for El

Paso, Texas, as meeting the requirements of section 179B of the Clean

Air Act (CAA) regarding implementation plans and revisions for

international border areas.

EFFECTIVE DATE: This action will become effective on February 17, 1994.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

following locations. The interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least 24 hours before the visiting day.

U.S. Environmental Protection Agency, Region 6, Air ProgramsBranch

(6T-A), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

Mr. Jerry Kurtzweg (6101), U.S. Environmental Protection Agency,

401 M Street, SW., Washington, DC 20460.

Texas Natural Resource Conservation Commission, P.O. Box 13087,

Austin, Texas 78711-3087.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Sather, Planning Section (6T-

AP), Air Programs Branch, U.S. Environmental Protection Agency (EPA)

Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214)

655-7258.

SUPPLEMENTARY INFORMATION:

Background

El Paso, Texas, was designated nonattainment for PM-10 and

classified as moderate under sections 107(d)(4)(B) and 188(a) of the

CAA, upon enactment of the Clean Air Act Amendments (CAAA) of

1990.1 Please reference 56 Federal Register (FR) 56694 (November

6, 1991), and 57 FR 13498 and 13537 (April 16, 1992). The air quality

planning requirements for moderate PM-10 nonattainment areas are set

out in subparts one and four of part D, title I of the CAA.

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\1\The 1990 CAAA made significant changes to the air quality

planning requirements for areas that do not meet (or that

significantly contribute to ambient air quality in a nearby area

that does not meet) the PM-10 National Ambient Air Quality Standards

(NAAQS) (see Pub. L. No. 101-549, 104 Stat. 2399). References herein

are to the CAAA, 42 U.S.C. 7401et seq.

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The EPA has issued a ``General Preamble'' describing the EPA's

preliminary views on how the EPA intends to review SIPs and SIP

revisions submitted under title I of the CAA, including those state

submittals containing moderate PM-10 nonattainment area SIP

requirements. See generally 57 FR 13498 (April 16, 1992) and 57 FR

18070 (April 28, 1992).

Those moderate PM-10 nonattainment areas designated nonattainment

under section 107(d)(4) of the CAA were to submit SIPs to the EPA by

November 15, 1991. The CAA outlined certain required items to be

included in the SIPs. These required items, due November 15, 1991,

unless otherwise noted, include: (1) A comprehensive, accurate, and

current inventory of actual emissions from all sources of PM-10 in the

nonattainment area (section 172(c)(3) of the CAA); (2) a permit program

to be submitted by June 30, 1992, which meets the requirements of

section 173 for the construction and operation of new and modified

major stationary sources of PM-10 (section 189(a)(1)(A)); (3) a

demonstration (including air quality modeling) that the plan provides

for attainment of the PM-10 NAAQS as expeditiously as practicable but

no later than December 31, 1994, or a demonstration that attainment by

that date is impracticable (section 189(a)(1)(B)); (4) provisions to

assure that Reasonably Available Control Measures (RACM), including

Reasonably Available Control Technology (RACT), for control of PM-10

will be implemented no later than December 10, 1993 (sections 172(c)(1)

and 189(a)(1)(C)). For sources emitting insignificant (de minimis)

quantities of PM-10, the EPA's policy is that it would be unreasonable

and would not constitute RACM to require controls on the source. Please

reference 57 FR 13540. Also, when evaluating RACM and RACT,

technological and economical feasibility determinations are to be

conducted (57 FR 13540-13544); (5) quantitative emission reduction

milestones which are to be achieved every three years until the area is

redesignated attainment and which demonstrate reasonable further

progress (RFP) toward attaining the PM-10 NAAQS (section 189(c)); (6)

contingency measures due November 15, 1993 (please reference 57 FR

13543), that are to be implemented if the EPA determines that the area

has failed to make RFP or to attain the primary standards by the

applicable date (section 172(c)(9)); and (7) control requirements for

major stationary sources of PM-10 precursors, unless the EPA determines

inappropriate. The CAA, in section 189(e), states that control

requirements applicable to major stationary sources of PM-10 will also

be applicable to major stationary sources of PM-10 precursors, except

where the Administrator determines that such sources do not

significantly contribute to PM-10 levels that exceed the PM-10 ambient

standards in the area.

Response to Comments

The EPA received one comment letter from Chevron U.S.A. Products

Company on its October 8, 1993 (58 FR 52467-52474), FR proposal to

approve the El Paso moderate nonattainment area PM-10 SIP, including

the proposal to approve the El Paso PM-10 SIP as meeting the

requirements of section 179B of the CAA regarding implementation plans

and revisions for international border areas. The letter expressed

overall agreement with the EPA's proposal to approve the El Paso PM-10

nonattainment SIP, but also posed one question regarding the three year

progress report discussed in the section entitled ``Milestones and

Reasonable Further Progress'' (58 FR 52472). Chevron expressed overall

support for the three year PM-10 progress report requirement, beginning

November 15, 1994, but questioned whether the EPA should require as a

part of the report an evaluation of any additional controls which may

be feasible to reduce exposures and/or bring the area into attainment.

Chevron stated that since the EPA has found that the El Paso area would

not need any additional PM-10 control measures but for transborder PM-

10, they did not see how any additional controls could be justified as

feasible for El Paso under the CAA.

The EPA, in this final rulemaking action, is approving the El Paso

PM-10 SIP because it shows timely attainment of the PM-10 NAAQS based

on United States (El Paso County) emissions alone. Nevertheless,

because the PM-10 NAAQS reflects public health and welfare standards,

and because PM-10 NAAQS exceedances are still being monitored in the El

Paso nonattainment area, the EPA is encouraging the State of Texas to

evaluate the feasibility of further reductions in El Paso County PM-10

emissions beyond the amounts accounted for by the control measures put

in place by the PM-10 SIP being approved in this action. Additional

reductions would further reduce the PM-10 concentrations to which the

El Paso County population is exposed to by virtue of the additional

contribution from international transport. Any additional control

measures found to be feasible by the State of Texas would be subject to

full public notice and public comment. The State of Texas has

committed, provided that adequate information becomes available, to

develop a contingency plan for PM-10 in the El Paso area. The State

also anticipates the continuation of a cooperative effort to study PM-

10 air quality in the El Paso/Juarez air basin.

Final Action

Section 110(k) of the CAA sets out provisions governing the EPA's

review of SIP submittals (see 57 FR 13565-13566). In this final action,

the EPA is granting approval of the El Paso, Texas, moderate

nonattainment area PM-10 SIP because it meets all of the applicable

requirements of the CAA.

This SIP revision was submitted to the EPA by cover letter from the

Governor of Texas dated November 5, 1991. OnOctober 8, 1993, the EPA

announced its proposed approval of the moderate nonattainment area PM-

10 SIP for El Paso (58 FR 52467-52474). In that rulemaking action, the

EPA described in detail its interpretations of title I and its

rationale for proposing to approve the El Paso PM-10 SIP, taking into

consideration the specific factual issues presented.

The EPA requested public comments on all aspects of the proposal

(please reference 58 FR 52474), and one comment letter was received

during the comment period, which ended onNovember 8, 1993. This final

action on the El Paso PM-10 SIP is unchanged from the October 8, 1993,

proposed approval action. The discussion herein provides only a broad

overview of the proposed action that the EPA is now finalizing. The

public is referred to the October 8, 1993, proposed approval FR action

for a full discussion of the action that the EPA is now finalizing.

The EPA finds that the State of Texas' PM-10 SIP for the El Paso

nonattainment area meets the RACM/RACT requirement. The State of Texas

included a listing of RACT, federally enforceable in approved permits,

being used at all major and other stationary sources in the El Paso

area. In addition, the EPA views the State's prescribed burning,

fugitive dust, and residential wood combustion control measures in

Regulation I and the El Paso City Ordinance 9.38, as contingency

measures that go beyond the core RACM control strategy. The EPA is also

approving the memorandum of understanding between the City of El Paso

and the Texas Air Control Board (TACB) (now the Texas Natural Resource

Conservation Commission), which serves to define the division of

responsibility for, and the commitments to carry out, the provisions of

Regulation I and Chapter 9.38 of the City Code (City of El Paso

episodic curtailment program regarding wood combustion).

The State of Texas referenced section 179B of the CAA when

presenting their modeling demonstration for El Paso. The demonstration

showed that the El Paso PM-10 moderate nonattainment area would be in

attainment of the PM-10 NAAQS both currently and by December 31, 1994,

based on dispersion modeling of United States (El Paso County) PM-10

emissions alone. After review, the EPA found the demonstration to be

satisfactory. Details of the EPA's evaluation were discussed in

theOctober 8, 1993, proposed approval action and in the EPA's Technical

Support Document. Accordingly, the EPA is approving the demonstration

as showing that the SIP provides for timely attainment of the PM-10

NAAQS but for emissions emanating from Mexico.

The EPA is also granting the El Paso PM-10 nonattainment area the

exclusion from PM-10 precursor control requirements authorized under

section 189(e) of the CAA. Finally, to satisfy section 189(c) of the

CAA (regarding quantitative milestones and RFP), the State of Texas

will report to the EPA every three years, beginning on November 15,

1994, the following information regarding the El Paso nonattainment

area: (1) The status and effectiveness of the existing controls,

including quantification of emission reductions achieved relative to

those projected in the El Paso PM-10 SIP submittal; (2) significant

changes in the inventory due to new source growth or other activities

(to allow for a comparison with the 1990 base year PM-10 emission

inventory, and the projected 1994 PM-10 emission inventory); and (3) an

evaluation of any additional controls which may be feasible to reduce

exposures and/or bring the area into attainment.

Nothing in this action should be construed as permitting, allowing,

or establishing a precedent for any future request for revision to any

SIP. Each request for revision to the SIP shall be considered

separately in light of specific technical, economical, and

environmental factors, and in relation to relevant statutory and

regulatory requirements.

This action makes final the action proposed at 58 FR 52467 (October

8, 1993). As noted elsewhere in this action, the EPA received no

adverse public comment on the proposed action. As a direct result, the

Regional Administrator has reclassified this action from table one to

table three under the processing procedures established at 54 FR 2214,

January 19, 1989, and revised via memorandum from the Assistant

Administrator for Air and Radiation to the Regional Administrators

datedOctober 4, 1993.

Miscellaneous

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, the EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D, of the

CAA do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the Federal-State relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

CAA forbids the EPA to base its actions concerning SIPs on such grounds

(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42

U.S.C. 7410(a)(2)).

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by March 21, 1994. 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)).

Executive Order

This action has been classified as a table three action by the

Regional Administrator under the procedures published in the Federal

Register on January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the

Office of Management and Budget (OMB) waived tables two and three SIP

revisions (54 FR 2222) from the requirements of section 3 of Executive

Order 12291 for a period of two years. The EPA has submitted a request

for a permanent waiver for table two and three SIP revisions. The OMB

has agreed to continue the waiver until such time as it rules on the

EPA's request. This request continues in effect under Executive Order

12866 which superseded Executive Order 12291 onSeptember 30, 1993.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Nitrogen dioxide, Particulate

matter, Reporting and recordkeeping requirements, Sulfur dioxide.

Note: Incorporation by reference of the SIP for the State of

Texas was approved by the Director of the Federal Register on July

1, 1982.

Dated: December 23, 1993.

W. B. Hathaway,

Acting Regional Administrator (6A).

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart SS--Texas

2. Section 52.2270 is amended by adding paragraph (c)(79) to read

as follows:

Sec. 52.2270 Identification of plan.

* * * * *

(c) * * *

(79) A revision to the Texas SIP addressing moderate PM-10

nonattainment area requirements for El Paso was submitted by the

Governor of Texas by letter dated November 5, 1991. The SIP revision

included, as per section 179B of the Clean Air Act, a modeling

demonstration providing for timely attainment of thePM-10 National

Ambient Air Quality Standards for El Paso but for emissions emanating

from Mexico.

(i) Incorporation by reference.

(A) Revisions to Texas Air Control Board (TACB), Regulation I,

Section 111.101, ``General Prohibition;'' Section 111.103, ``Exceptions

to Prohibition of Outdoor Burning;'' Section 111.105, ``General

Requirements for Allowable Outdoor Burning;'' Section 111.107,

``Responsibility for Consequences of Outdoor Burning;'' Section

111.143, ``Materials Handling;'' Section 111.145, ''Construction and

Demolition,'' Subsections 111.145(1), 111.145(2); Section 111.147,

``Roads, Streets, and Alleys,'' Subsections 111.147(1)(B),

111.147(1)(C), 111.147(1)(D); and Section 111.149, ``Parking Lots,'' as

adopted by the TACB on June 16, 1989.

(B) TACB Order No. 89-03, as adopted by the TACB on June 16, 1989.

(C) Revisions to TACB, Regulation I, Section 111.111,

``Requirements for Specified Sources,'' Subsection 111.111(c); Section

111.141, ``Geographic Areas of Application and Date of Compliance;''

Section 111.145, ``Construction and Demolition,'' Subsections

111.145(first paragraph), 111.145(3); and Section 111.147, ``Roads,

Streets, and Alleys,'' Subsections 111.147(first paragraph),

111.147(1)(first paragraph), 111.147(1)(A), 111.147(1)(E),

111.147(1)(F), and 111.147(2), as adopted by the TACB on October 25,

1991.

(D) TACB Order No. 91-15, as adopted by the TACB on October 25,

1991.

(E) City of El Paso, Texas, ordinance, Title 9 (Health and Safety),

Chapter 9.38 (Woodburning), Section 9.38.010, ``Definitions;'' Section

9.38.020, ``No-Burn Periods;'' Section 9.38.030, ``Notice Required;''

Section 9.38.040, ``Exemptions;'' Section 9.38.050, ``Rebuttable

Presumption;'' and Section 9.38.060, ``Violation Penalty,'' as adopted

by the City Council of the City of El Paso on December 11, 1990.

(ii) Additional material.

(A) November 5, 1991, narrative plan addressing the El Paso

moderate PM-10 nonattainment area, including emission inventory,

modeling analyses, and control measures.

(B) A Memorandum of Understanding between the TACB and the City of

El Paso defining the actions required and the responsibilities of each

party pursuant to the revisions to the Texas PM-10 SIP for El Paso,

passed and approved on November 5, 1991.

(C) TACB certification letter dated July 27, 1989, and signed by

Allen Eli Bell, Executive Director, TACB.

(D) TACB certification letter dated October 28, 1991, and signed by

Steve Spaw, Executive Director, TACB.

(E) El Paso PM-10 SIP narrative from pages 91-92 that reads as

follows: ``. . . provided that adequate information becomes available,

a contingency plan will be developed in conjunction with future El Paso

PM-10 SIP revisions. It is anticipated that EPA, TACB, the City of El

Paso, and SEDUE will continue a cooperative effort to study the PM-10

air quality in the El Paso/Juarez air basin. Based on the availability

of enhanced emissions and monitoring data, as well as more

sophisticated modeling techniques (e.g., Urban Airshed Model), future

studies will attempt to better define the relative contributions of El

Paso and Juarez to the PM-10 problem in the basin. At that time, a

contingency plan can more appropriately be developed in a cooperative

effort with Mexico.''

[FR Doc. 94-1062 Filed 1-14-94; 8:45 am]

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