Approval and Promulgation of State Implementation Plans Texas; Prevention of Significant Deterioration, Nitrogen Dioxide Increments

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-8-1-5221a; FRL-5065-1]

Approval and Promulgation of State Implementation Plans Texas;

Prevention of Significant Deterioration, Nitrogen Dioxide Increments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves a revision to the Texas Prevention of

Significant Deterioration (PSD) State Implementation Plan (SIP) which

incorporates by reference the Federal nitrogen dioxide (NO2)

increment standards. The effect of this action is to make this revision

a part of the Texas SIP and thus federally enforceable.

DATES: This final rule will become effective on November 8, 1994 unless

adverse or critical comments are received by October 11, 1994. If the

effective date is delayed, a 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 Region 6 Office

listed below. Copies of 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 two

working days in advance.

U.S. Environmental Protection Agency, Region 6, Air Programs Branch

(6T-A), First Interstate Bank Building, 1445 Ross Avenue, suite 700,

Dallas, Texas 75202-2733.

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, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Bill Deese of the EPA Region 6 Air

Programs Branch at (214) 665-7253 and at the above address.

SUPPLEMENTARY INFORMATION:

The EPA approved the Texas PSD SIP in the Federal Register (FR) on

June 24, 1992, on pages 28093 to 28098 (57 FR 28093-28098). This

approval gave the Texas Natural Resource Conservation Commission

(TNRCC) (formerly the Texas Air Control Board (TACB)) direct authority,

as of July 24, 1992, to issue and enforce PSD permits in most areas of

Texas, with the limitations described in the rule. The revisions

incorporated by reference, with certain exceptions, the regulations in

40 CFR 52.21, as they existed on August 1, 1987, into section

116.3(a)(13) of TACB Regulation VI, ``Control of Air Pollution by

Permits for New Construction or Modification.'' At the time the

revisions were adopted by the TACB and approved by the EPA, Regulation

VI was codified in Chapter 116 of title 31 of the Texas Administrative

Code (31 TAC Chapter 116).

The Governor of Texas submitted to EPA on February 18, 1991, a

revision to section 116.3(a)(13) of TACB Regulation VI. The revision

was adopted by the TACB on December 14, 1990, after conducting a

complete public participation program pursuant to 40 CFR 51.102. This

revision changed the date in section 116.3(a)(13) from ``August 1,

1987'' to ``October 17, 1988'' to reflect the amendments to 40 CFR

52.21 as promulgated in the Federal Register on October 17, 1988 (53 FR

40656-40672). By revising this date, the State will have, with certain

exceptions, the authority to implement and enforce the Federal PSD

rules, including the PSD NO2 increments, as promulgated in the

Federal Register on October 17, 1988. The exceptions are the same as

those discussed in the action published June 24, 1992, approving the

Texas PSD SIP. The EPA has determined that the State of Texas has

adequately revised its existing PSD SIP to incorporate the provisions

of the NO2 increments promulgated by the EPA on October 17, 1988.

The TACB, on August 16, 1993, adopted the repeal of Regulation VI

(31 TAC Chapter 116), ``Control or Air Pollution by Permits for New

Construction or Modification,'' and adopted a new Regulation VI (31 TAC

Chapter 116) with the same name. The new Regulation VI has been

submitted to EPA as a revision to the Texas SIP. The EPA has not yet

acted on the submittal.

The TACB became the Office of Air Quality in the new TNRCC on

September 1, 1993. The TACB air quality control regulations were

transferred from title 31 of the Texas Administrative Code (31 TAC) to

new title 30 of the Texas Administrative Code (30 TAC). The designation

for Regulation VI changed from 31 TAC Chapter 116 to 30 TAC Chapter

116.

In this Federal Register action, EPA is approving the revision to

section 116.3(a)(13) of TNRCC Regulation VI (31 TAC Chapter 116) as

adopted by the TACB on December 14, 1990, and submitted by the Governor

on February 18, 1991. This action is not approving or disapproving any

part of TNRCC Regulation VI (31 TAC Chapter 116) as adopted by the TACB

on August 16, 1993. This action is also not approving or disapproving

the transfer of Regulation VI from 31 TAC to 30 TAC.

Final Action

The EPA is approving a revision to section 116.3(a)(13) of TNRCC

Regulation VI (31 TAC Chapter 116), ``Control of Air Pollution by

Permits for New Construction or Modification'' adopted by the TACB on

December 14, 1990, and submitted by the Governor to EPA on February 18,

1991. This revision will give the State the authority to implement,

with certain exceptions, the Federal PSD regulations codified at 40 CFR

52.21 as revised in the Federal Register on October 17, 1988. The

exceptions are discussed in the Federal Register action published June

24, 1992, approving the Texas PSD SIP.

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 Federal

Register publication, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. Thus, today's direct

final action will be effective November 8, 1994 unless, by October 11,

1994, adverse or critical comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent notice that will

withdraw the final action. All public comments received 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 such comments are received, the public is

advised that this action will be effective November 8, 1994.

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.

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

Clean Air Act (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 the State action. The CAA forbids 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).

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

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 November 8, 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)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Nitrogen 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: August 23, 1994.

W.B. Hathaway,

Acting Regional Administrator (6A).

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. 7401-7671q.

Subpart SS--Texas

2. Section 52.2270 is amended by adding paragraph (c)(78) to read

as follows:

Sec. 52.2270 Identification of plan.

* * * * *

(c) * * *

(78) Revision to the Texas State Implementation Plan for Prevention

of Significant Deterioration adopted by the Texas Air Control Board

(TACB) on December 14, 1990, and submitted by the Governor on February

18, 1991.

(i) Incorporation by reference.

(A) Revision to TACB Regulation VI (31 TAC Chapter 116)--Control of

Air Pollution by Permits for New Construction or Modification: Section

116.3(a)(13) as adopted by the TACB on December 14, 1990, and effective

January 7, 1991.

(B) TACB Board Order No. 90-13, as adopted on December 14, 1990.

* * * * *

3. Section 52.2303 is amended by revising paragraph (a) to read as

follows:

Sec. 52.2303 Significant deterioration of air quality.

(a) The plan submitted by the Governor of Texas on December 11,

1985 (as adopted by the TACB on July 26, 1985), October 26, 1987 (as

revised by the TACB on July 17, 1987), September 29, 1988 (as revised

by the TACB on July 15, 1988), and February 18, 1991 (as revised by the

TACB on December 14, 1990) containing Regulation VI--Control of Air

Pollution for New Construction or Modification, Section 116.3(a)(13);

the Prevention of Significant Deterioration (PSD) Supplement document,

submitted by the Governor on October 26, 1987 (as adopted by the TACB

on July 17, 1987); and revision to General Rules, Rule 101.20(3),

submitted by the Governor on December 11, 1985 (as adopted by the TACB

on July 26, 1985), is approved as meeting the requirements of part C,

Clean Air Act for preventing significant deterioration of air quality.

* * * * *

[FR Doc. 94-22239 Filed 9-8-94; 8:45 am]

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