Approval and Promulgation of Implementation Plan: Texas Emission Statement

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-19-1-5736a; FRL-5029-4]

Approval and Promulgation of Implementation Plan: Texas Emission

Statement

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action approves a revision to the Texas State

Implementation Plan (SIP) to include revisions to the Texas Air Control

Board, part III, chapter 101, General Rules, section 101.10, Emission

Inventory Requirements. These revisions are for the purpose of

implementing an emission statement program for stationary sources

within the ozone nonattainment areas. The implementation plan was

submitted by the State to satisfy the Federal requirements for an

emission statement program as part of the SIP for Texas.

DATES: This final rule will become effective on October 25, 1994 unless

notice is received by September 26, 1994 that someone wishes to submit

adverse or critical comments. If the effective date is delayed, timely

notice will be published in the Federal Register.

ADDRESSES: Written comments on this action should be addressed to Mr.

Thomas H. Diggs, Chief, Planning Section, at the EPA Regional Office

listed below. 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 Programs Branch

(6T-AP), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733.

The Air and Radiation Docket and Information Center, U.S.

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460.

Texas Natural Resource Conservation Commission, Office of Air

Quality, Emissions Inventory Branch, 12124 Park 35 Circle, Austin,

Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Herbert R. Sherrow, Jr., Planning

Section (6T-AP), Air Programs Branch, USEPA Region 6, 1445 Ross Avenue,

Dallas, Texas 75202-2733, Telephone (214) 655-7237.

SUPPLEMENTARY INFORMATION:

Background

The air quality planning and State Implementation Plan (SIP)

requirements for ozone nonattainment and transport areas are set out in

subparts I and II of part D of title I of the Clean Air Act, as amended

by the Clean Air Act Amendments of 1990 (CAA or ``the Act''). EPA has

published a ``General Preamble'' describing EPA's preliminary views on

how EPA intends to review SIPs and SIP revisions submitted under title

I of the CAA, including those State submittals for ozone transport

areas within the States (see 57 FR 13498 (April 16, 1992) (``SIP:

General Preamble for the Implementation of title I of the Clean Air Act

Amendments of 1990''), 57 FR 18070 (April 28, 1992) (``Appendices to

the General Preamble''), and 57 FR 55620 (November 25, 1992) (``SIP:

NOx Supplement to the General Preamble'')).

EPA has also issued a draft guidance document describing the

requirements for the emission statement programs discussed in this

document, entitled ``Guidance on the Implementation of an Emission

Statement Program'' (July, 1992). The Agency is also conducting a

rulemaking process to modify part 40 of the CFR to reflect the

requirements of the emission statement program.

Section 182 of the Act sets out a graduated control program for

ozone nonattainment areas. Section 182(a) sets out requirements

applicable in Marginal nonattainment areas, which are also made

applicable in subsections (b), (c), (d), and (e) to all other ozone

nonattainment areas. Among the requirements in section 182(a) is a

program in paragraph (3) of that subsection for stationary sources to

prepare and submit to the State each year emission statements showing

actual emissions of volatile organic compounds (VOC) and nitrogen

oxides (NOx). This paragraph provides that the States are to

submit a revision to their SIPs by November 15, 1992, establishing this

emission statement program. Whatever minimum reporting level is

established in a State emission statement program, if either VOC or

NOx is emitted at or above the designated level, the other

pollutant should be included in the emission statement, even if it is

emitted at levels below the specified cutoffs.

The CAA requires facilities to submit the first emission statement

to the State within three years after November 15, 1990, and annually

thereafter. EPA requests that the States submit the emission data to

EPA through the Aerometric Information Retrieval System (AIRS). The

minimum emission statement data should include: Certification of data

accuracy; source identification information; operating schedule;

emissions information (to include annual and typical ozone season day

emissions); control equipment information; and process data. EPA

developed emission statements data elements to be consistent with other

source and State reporting requirements. This consistency is essential

to assist States with quality assurance for emission estimates and to

facilitate consolidation of all EPA reporting requirements.

In addition to the submission of the emission statement data to

AIRS, States should provide EPA with a status report that outlines the

degree of compliance with the emissions statement program. Beginning

July 1, 1993, States should report quarterly to EPA the total number of

sources affected by the emission statement provisions, the number that

have complied with the provisions, and the number that have not. This

status report should also include the total annual and typical ozone

season day emissions from all reporting sources, both corrected and

non-corrected for rule-effectiveness (RE). States should include in

their status report a list of sources that are delinquent in submitting

their emission statement and that emit 500 tons per year (tpy) or more

of VOC or 2500 tpy or more of NOx. This report should be a

quarterly submittal until all the regulated sources have complied for

the reporting year. Suggested submittal dates for the quarterly status

reports are July 1, October 1, January 1, and April 1.

Analysis of State Submission

1. Procedural Background

The Act requires States to observe certain procedural requirements

in developing its SIP, of which the emission statement program will

become a part. Section 110(a)(2) of the Act provides that each

implementation plan submitted by a State must be adopted after

reasonable notice and public hearing.1 Section 110(l) similarly

provides that each revision to an implementation plan submitted by a

State under the CAAA must be adopted by such State after reasonable

notice and public hearing.

---------------------------------------------------------------------------

\1\Also section 172(c)(7) of the Act requires that plan

provisions for nonattainment areas meet the applicable provisions of

section 110(a)(2).

---------------------------------------------------------------------------

EPA must at the outset determine whether a submittal is complete

and therefore warrants further EPA review and action (see section

110(k)(1) and 57 FR 13565). EPA's completeness criteria for SIP

submittals are set out at 40 CFR part 51, appendix V (1991), as amended

by 57 FR 42216 (August 26, 1991). EPA attempts to make completeness

determinations within 60 days of receiving a submission. However, under

section 110(k)(1)(B), a submittal is deemed complete by operation of

law if a completeness determination is not made by EPA 6 months after

receipt of the submission.

The State passed the revisions to the TACB General Rules, 101, by

repealing the existing section 101.10 and replacing it with a new

section 101.10 on August 20, 1992. The State submitted the revision to

public hearing on April 19, 1992. The rule was submitted to EPA on

October 15, 1992, by the Governor, as a proposed revision to the SIP.

The October 15, 1992, SIP revision was reviewed by EPA to determine

completeness shortly after its submittal, in accordance with the

completeness criteria set out at 40 CFR part 51, appendix V (1991), as

amended by 57 FR 42216 (August 26, 1991). The submittal was found to be

complete and a letter dated January 15, 1993, was forwarded to the

Governor indicating the completeness of the submittal and the next

steps to be taken in the review process. The provisions of the

regulations are outlined under the analysis of the State's submission

below.

On September 1, 1993, the TACB merged with the Texas Water

Commission to form the Texas Natural Resource Conservation Commission

(TNRCC) and is now called the Office of Air Quality within the TNRCC.

The merger did not abrogate, void, or rescind any rules, regulations,

Orders, permits, or any other action previously taken by the former

TACB.

2. Components of Emission Statement Program

There are several key general and specific components of an

acceptable emission statement program. Specifically, the State must

submit a revision to its SIP and the emission statement program must

meet the minimum requirements for reporting by the sources and the

State. In general, the program must include, at a minimum, provisions

for applicability, definitions, compliance, and specific source

requirements detailed below.

A. SIP Revision Submission. Required within 2 years of enactment of

the Clean Air Act Amendments of 1990 (CAAA) (November 15, 1990).

B. Program Elements. The State emission statement program must, at

a minimum, include provisions covering applicability of the

regulations, definitions for key terms used in the regulations, a

compliance schedule for sources covered by the regulations, and the

specific reporting requirements for sources. The emission statement

submitted by the source should contain, at a minimum, a certification

that the information is accurate to the best knowledge of the

individual certifying the statement, source identification information,

operating information, process rate data, control equipment

information, and emissions information. These elements are described in

greater detail in section D of this document. EPA recommends that the

State program require the submission of the data from the sources no

later than April 15 of each year to insure that the State can meet the

July 1 deadline for the submission of data into AIRS each year. The

guidance document prepared by EPA provides a draft model State rule

which can be used as the basis for the States to develop their program.

The guidance document also provides suggested language for the specific

program elements.

C. Sources Covered. Section 182(a)(3)(B) requires that States with

areas designated as nonattainment for ozone require emission statement

data from sources of volatile organic compounds (VOC) or oxides of

nitrogen (NOx) in the nonattainment areas. This requirement

applies to all ozone nonattainment areas, regardless of the

classification (Marginal, Moderate, etc.).

The States may waive, with EPA approval, the requirement for

emission statements for classes or categories of sources with less than

25 tons per year of actual plant-wide NOx or VOC emissions in

nonattainment areas if the class or category is included in the base

year and periodic inventories and emissions are calculated using

emission factors established by EPA (such as those found in EPA

publication AP-42) or other methods acceptable to EPA. States should

get clearance from the appropriate EPA Regional Office to waive the

emission statement requirement for these smaller sources.

D. Reporting Requirements for Sources. The State of Texas requires

facilities to report on an emissions inventory questionnaire supplied

by the State. Sources covered by the State emission statement program

should submit, at a minimum, the following data elements:

1. Source identification information.

2. Operating information.

3. Process rate data.

4. Control equipment information.

5. Emissions information.

3. Review of the State's Emission Statement Regulations.

A. Applicability

The applicability of the regulation to ozone nonattainment areas is

documented in subsection (a) and (a)(1). The rule states that the owner

or operator of the following stationary sources in the State of Texas

or on waters that extend 25 miles from the shoreline shall submit

emissions inventories to the Texas Air Control Board (TACB) on forms or

other media approved by the TACB: a major facility/stationary source,

as defined in Section 101.1 of this title (relating to definitions),

and any stationary source in an ozone nonattainment area emitting a

minimum of 10 tons per year (tpy) volatile organic compounds (VOC), 25

tpy nitrogen oxides (NOx), or 100 tpy carbon monoxide (CO).

B. Types of Inventories

There are two types of inventories identified in the regulation

which are pertinent to emission statements. They are an initial

emissions inventory and an ozone nonattainment area inventory.

The requirement for initial emissions inventories is documented in

subsection (b)(1). Stationary sources, as identified in subsection (a)

of Section 101.10 shall submit an initial emissions inventory (IEI) for

any criteria pollutant or hazardous air pollutant that has not been

identified in a previous inventory. The IEI shall consist of actual

emissions of VOC, NOx, CO, sulfur dioxide (SO2), lead (Pb),

and particulate matter of less than 10 microns in diameter (PM10)

from stationary sources and emissions of all hazardous air pollutants

identified in the FCAA, Section 112(b). For purposes of this section,

the term ``actual emission'' is the actual rate of emissions of a

pollutant from an emissions unit for the calendar year or seasonal

period. Actual emission estimates must also include excess emissions

occurring during maintenance, start-ups, shut-downs, upsets, and

downtime to parallel the documentation of these events in the emissions

inventory and must follow emissions calculations identified in

subsection (c) of section 101.10.

The requirement for ozone nonattainment areas inventories is

documented in subsection (b)(3). This subsection requires stationary

sources in ozone nonattainment areas emitting a minimum of 10 TPY of

VOC, 25 TPY of NOx, or 100 TPY of CO to submit an annual

inventory. The inventory shall consist of actual annual emissions and

typical weekday emissions that occur during the summer months.

C. Minimum Data Requirements

The data requirements include a certifying statement, facility

identification information, operating information, process rate data,

control equipment information, and emissions information.

The certifying statement is documented in subsection (d). A

statement is required from the owner or operator to accompany the

emission inventory certifying that the information is true and accurate

to the best knowledge of the certifying official. The certification

will include the name, title, signature, date of signature, and

telephone number of the certifying official.

The data requirements are contained in the questionnaire used by

the State to gather emission statement data. The questionnaire is

required from all facilities which must report emission statement data.

A copy of the questionnaire and instructions for completion is

contained in the Technical Support Document (TSD). Source data elements

required by Texas through the questionnaire sent by the State to the

facilities are:

1. Facility identification information.

a. Full name, physical location, and mailing address of facility.

b. Latitude and Longitude.

c. SIC code(s).

2. Operating information.

a. Percentage annual throughput by season.

b. Days per week during the normal operating schedule.

c. Hours per day during the normal operating schedule.

d. Hours per year during the normal operating schedule.

3. Process rate data.

a. Annual process rate (annual throughput).

b. Peak ozone season daily process rate (in nonattainment areas.

4. Control equipment information.

a. Current primary and secondary AIRS Facility System (AIRS) control

equipment identification codes.

b. Current control equipment efficiency (percent).

5. Emissions information.

a. Estimated actual VOC and/or NOx emissions at the segment

level, in tpy for an annual emission rate and pounds per day for a

typical ozone season day (defined as the average or typical

operating day during the peak ozone season). The instructions for

completion of the questionnaire require that if either VOC or

NOx is emitted at or above the designated level, the other

pollutant must be included in the emission statement, even if it is

emitted at levels below the specified cutoffs. Actual emission

estimates must include upsets, downtime, and fugitive emissions, and

must follow an emission estimation method. Emissions will be

reported as one number.

b. AFS estimated emissions method code.

c. Emission factor (if emissions were calculated using an emissions

factor).

D. Calculations

Calculations of emissions are documented in subsection (c). The

subsection specifies that actual measurement with continuous monitoring

systems (CEMS) is the preferred method of calculating emissions from a

point source. Other means of determining actual emissions may be

utilized if CEMS data is not available in accordance with detailed

instructions from the Emissions Inventory Division of the TACB.

E. Reporting Requirements

The reporting requirements are documented in subsection (e). The

reporting deadline for the 1992 ozone nonattainment area is March 31,

1993. Subsequent emission statements are due on March 31 of each year

and will contain data for the previous year.

F. Enforcement

The enforcement requirements are documented in subsection (f). The

State of Texas has included language in its regulation that permits the

State to enforce the provisions of the regulation under all pertinent

State enforcement authorities.

All measures and other elements in the SIP must be enforceable by

the State and EPA. The EPA criteria addressing the enforceability of

SIPs and SIP revisions were stated in a September 23, 1987, memorandum

(with attachments) from J. Craig Potter, Assistant Administrator for

Air and Radiation, et al. (see 57 FR 13541 (April 16, 1992) (``Review

of State Implementation Plans and Revisions for Enforceability and

Legal Sufficiency'')). SIP provisions must also contain a program that

provides for enforcement of the control measures and other elements in

the SIP (see section 110(a)(2)(C)).

The analysis of the Texas regulation shows that it adequately

addresses all components of an emission statement program.

In addition, the State has agreed to provide the EPA with emission

statement data for the EPA AIRS through the State grants process and to

provide quarterly status reports.

Final Action

In today's action, the EPA is granting final approval of the Texas

emission statement program as submitted. The EPA is publishing this

action without prior proposal because the Agency views this as a

noncontroversial amendment and anticipates no adverse comments.

However, in a separate document in this FR publication, the EPA is

proposing to approve the SIP revision should adverse comments be

received. Thus, this action will be effective October 25, 1994 unless,

by September 26, 1994, notice is received that adverse or critical

comments will be submitted.

If such notice is received, this action will be withdrawn before

the effective date by publishing a subsequent document which will

withdraw the final action. All public comments will then be addressed

in a subsequent final rule based on this action serving as a proposed

rule. The EPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no comments are received, the public is advised

that this action will be effective October 25, 1994.

The EPA has reviewed this request for revision of the federally-

approved SIP for conformance with the provisions of the 1990 Clean Air

Act Amendments of November 15, 1990. The EPA has determined that this

action conforms with those requirements.

Nothing in this action should be construed as permitting or

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, economic, and

environmental factors, and in relation to relevant statutory and

regulatory requirements.

Regulatory process

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.

The 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

(S. Ct. 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 October 25, 1994. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for 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.

Executive Order 12866

This action has been classified as a Table Two action by the

Regional Administrator under the procedures published in the Federal

Register on January 19, 1989 (54 FR 2214-2225), as revised by an

October 4, 1993, memorandum from Michael H. Shapiro, Acting Assistant

Administrator for Air and Radiation. A future document will inform the

general public of these tables. On January 6, 1989, the Office of

Management and Budget (OMB) waived Table Two and Table Three SIP

revisions (54 FR 2222) from the requirements of section three of

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

for a permanent waiver for Table Two and Table Three SIP revisions. The

OMB has agreed to continue the temporary 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 on

September 30, 1993.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Oxides of nitrogen, Reporting and recordkeeping requirements,

Volatile organic compounds.

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: July 27, 1994.

Allyn M. Davis,

Acting Regional Administrator.

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. 7401-767lq.

Subpart SS--Texas

2. Section 52.2270 is amended by adding paragraph (c)(82) to read

as follows:

Sec. 52.2270 Identification of plan.

* * * * *

(c) * * *

(82) A revision to the Texas SIP to include a new Texas Natural

Resource Conservation Commission, Part III, Chapter 101, General Rules,

section 101.10, Emission Inventory Requirements. In a concurrent

action, the TNRCC repealed the existing section 101.10 concerning

filing of emissions data. The new rule and the repealing of the old

rule was submitted to the EPA on October 15, 1992, by the Governor, as

a proposed revision to the SIP.

(i) Incorporation by reference.

(A) TNRCC, Part III, Chapter 101, General Rules, section 101.10,

Emission Inventory Requirements, as adopted by the TNRCC on August 20,

1992.

(B) TNRCC Order No. 92-20, as adopted by the TNRCC on August 20,

1992.

(ii) Additional material.

(A) TNRCC certification letter dated October 8, 1992, and signed by

William R. Campbell, Executive Director, TNRCC.

[FR Doc. 94-21014 Filed 8-25-94; 8:45 am]

BILLING CODE 6560-50-F