03-24553. Approval and Promulgation of Implementation Plans; Texas; Revisions to Regulations for Control of Air Pollution by Permits for New Construction or Modification

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is taking direct final action 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 January 3, 2003, to require that equipment associated with a new or relocated concrete crushing facility be located or operated at least 440 yards from any building used as a single or multi-family residence, school, or place of worship. This action is being taken under section 110 of the Federal Clean Air Act (the Act, or CAA).

DATES:

This direct final rule will be effective December 1, 2003 without further notice, unless EPA receives adverse comments by October 30, 2003. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Written comments on this action should be addressed to Mr. Guy Donaldson, Acting Chief, Air Permits Section (6PD-R), at the EPA Region 6 Office listed below. Electronic comments should be sent to either [e-mail] or at http://www.regulations.gov,, which is an alternate method for submitting electronic comments to EPA. To submit comments, please follow the detailed instructions described in the General Information part of this document. Copies of the Technical Support Document (TSD) and other documents relevant to this action are available for public inspection during official business hours at the following locations. Anyone wanting to examine these documents should make an appointment with the appropriate office at least two working days in advance.

Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-2733.

Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT:

Mr. Stanley M. Spruiell, Air Permits Section, Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-2733, at [phone], or [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” or “our” means EPA.

Table of Contents

I. What Is Being Addressed in this Document?

II. Have the Requirements for Approval of a SIP Revision Been Met?

III. What Final Action is EPA Taking?

IV. General Information

V. Statutory and Executive Order Reviews

I. What Is Being Addressed in This Document?

In today's action we are taking direct final action to approve revisions to Title 30 of the Texas Administrative Code (30 TAC) Section 116.112—Distance Limitations into the Texas SIP. The TCEQ adopted these revisions on December 18, 2002, and submitted the revisions to us for approval as a revision to the SIP on January 3, 2003.

Section 116.112 currently establishes distance limitations for lead smelters in Section 116.112(1) and distance limitations for hazardous waste permits in Section 116.112(2). The existing distance limitations were approved September 18, 2002 (67 FR 58607).

On December 18, 2002, TCEQ added a new paragraph (3) to Section 116.112, to implement House Bill (HB) 2912, Section 5.07, 77th Texas State Legislature, 2001. HB 2912, Section 5.07 amended the Texas Health and Safety Code to add a new Section 382.065, which requires the TCEQ, by rule, to restrict the location or operation of new and relocated concrete crushing facilities. Paragraph (3) requires all equipment associated with a concrete crushing facility to be located or operated at least 440 yards from any building used as a single or multi-family residence, school, or place of worship. The distance limitation does not apply to existing concrete crushing facilities which are authorized and actually located or operating at the site as of September 1, 2001. An existing facility does not include a concrete crushing facility authorized but not actually located or operating at the site as of September 1, 2001.

II. Have the Requirements for Approval of a SIP Revision Been Met?

The restriction on location and operation of new or relocated concrete crushing plants provides additional protection for persons occupying any building used as a single or multi-family residence, school, or place of worship. This restriction strengthens the existing SIP by providing additional assurance that occupants in such buildings will not be adversely affected by exposure to the air contaminants emitted from concrete crushing facilities. This provision, together with the existing SIP-approved provisions of Section 116.111(2)(A)(i), will ensure better protection of public health and welfare. This meets the requirement in 40 CFR 51.160(a) that each plan include legally enforceable procedures to determine whether the construction or modification of a facility, building, structure, or installation, or combination of these will result in (1) a violation of applicable portions of the control strategy; or (2) interference with attainment or maintenance of a national standard in the state in which the proposed source (or modification) is located or in a neighboring state. Compliance with this distance requirement to locate a concrete crushing plant at least 440 yards from any building used as a single or multi-family residence, school, or place of worship, will help ensure that the requirements of 40 CFR 51.160 are met.

The revision also meets 40 CFR 51.160(e) by identifying a type of facility that will be subject to review under 40 CFR 51.160(a). In this case, Texas has identified concrete crushing facilities and specified a distance requirement for such facilities.

This distance limitation does not apply to an existing concrete crushing facility which was authorized and actually located or operating at a site as of September 1, 2001. This provision allows an existing concrete crushing facility to continue operating at the site and to change its existing permit at such a site without being required to meet the distance limitation that otherwise applies to new and relocated facilities. If an existing facility were to relocate to another location after September 1, 2001, then the facility must comply with the distance limitation in Section 116.112(3).

As proposed by TCEQ on September 27, 2002, the distance limitations in Section 116.112(3) would have applied to all equipment and stockpiles associated with a concrete crushing facility. In response to public comments on the proposed rule, the TCEQ changed the rule to remove the references to stockpiles. This change was based upon TCEQ's determination that a stockpile associated with a concrete crushing facility is not subject to House Bill (HB) 2912, Section 5.07, the legislation that required TCEQ to adopt this distance limitation.

The exclusion from the distance limitation in Section 116.112(3) to an existing concrete crushing facility authorized and actually located or operating at a site as of September 1, 2001, and to stockpiles associated with a concrete crushing facility does not affect our ability to approve the distance limitations in Section 116.112(3). Such facilities must continue to meet the existing SIP-approved requirements in Section 116.111(2)(A)(i), which require sources subject to new source permitting in Texas to protect public health and welfare. This meets the requirements of 40 CFR 51.160(a) by ensuring that emissions from such facilities will not interfere with the attainment or maintenance of a national standard. Such facilities are also subject to the current SIP-approved requirements of Section 116.111(2)(A)(ii) which provides that when TCEQ issues a permit for construction or modification of any facility within 3,000 feet of an elementary, junior high/middle, or senior high school, the TCEQ shall consider any adverse short-term or long-term side effects that an air contaminant or nuisance odor from the facility may have on the individuals attending the schools. This ensures protection of individuals in such schools from adverse effects of emissions of air contaminants from such facilities.

The Technical Support Document, which is part of the record for this action, contains more detailed information on how the revision meets the requirements of the Act, including Section 110 and implementing regulations.

III. What Final Action Is EPA Taking?

We are approving as a revision to the Texas SIP revisions of 30 TAC Section 116.112—Distance Limitations, which Texas submitted on January 3, 2003. We are processing this action as a direct final action because it adds noncontroversial regulations to the SIP. We do not anticipate any relevant adverse comments. However, we are today publishing in the “Proposed Rules” section of today's Federal Register a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will become effective on December 1, 2003 without further notice unless we receive adverse comment by October 30, 2003. If we receive such comments, we will publish a document withdrawing the direct final rule in the Federal Register and informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Parties interested in commenting must do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 1, 2003. Please note that if we receive adverse comment on a part of this rule and if the part can be severed from the remainder of the rule, we may adopt as final those parts of the rule that are not subject to an adverse comment.

IV. General Information

A. What Is the Public Rulemaking File?

The EPA is committed to ensuring public access to the information used to inform the public of the Agency's decisions regarding the environment and human health and to ensuring that the public has an opportunity to participate in the Agency's decision-making process. The official public rulemaking file consists of the documents specifically referenced in a particular agency action, any public comments received, and other information related to the action. The public rulemaking file does not include Confidential Business Information (CBI) or other information for which disclosure is restricted by statute, although such information is a part of the Agency's official administrative record for the action.

B. How Can I Get Copies of This Document and Other Related Information?

1. An official public rulemaking file is available for inspection at the Regional Office. The Regional Office has established an official public rulemaking file for this action under Identification Number (ID No.) TX-155-1-7591. The public rulemaking file is available for viewing at the Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Contact the person listed in the “For Further Information Contact” section to schedule your inspection. If possible, schedule the appointment two working days in advance of your visit. Official hours of business for the Regional Office are Monday through Friday, 8:30 a.m. to 4 p.m. excluding federal holidays. Copies of any State submittals and EPA's technical support document are also available for public inspection at the State Air Agency during official business by appointment.

Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

2. You may access this Federal Register document electronically through the Regulations.gov Web site located at http://www.regulations.gov. The Regulations.gov Web site is the central online rulemaking portal of the United States government and is a public service to increase participation in the government's regulatory activities by offering a central point for submitting comments on regulations.

C. How and to Whom Do I Submit Comments?

You may submit comments electronically, by mail, through hand delivery/courier or by facsimile. Instructions for submitting comments by each method are discussed below. To ensure proper receipt by EPA, identify the appropriate ID No. 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.” The EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Section D below.

1. Electronically. 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 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.

i. E-mail. Comments may be submitted by electronic mail (e-mail) to Mr. Stanley M. Spruiell at [e-mail], Attention “Public comment on ID No. TX-155-1-7591”. 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.

ii. 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. Select “Environmental Protection Agency” at the top of the page and click on the “Go” button. The list of current EPA actions available for comment will be displayed. Select the appropriate action and follow the online instructions for submitting comments. Unlike EPA's e-mail system, the Regulations.gov Web site is an “anonymous” system, which means that any personal information, e-mail address, or other contact information will not be collected unless it is provided in the text of the comment. See the Privacy Notice at the Regulations.gov Web site for further information. Please be advised that EPA cannot contact you for any necessary clarification unless your contact information is included in the body of comments submitted through the Regulations.gov Web site.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to: Mr. Guy Donaldson, Acting Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Please include the text “Public comment on ID No. TX-155-1-7591” on the disk or CD ROM. These electronic submissions will be accepted in WordPerfect, Word, or ASCII file format. You should avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Mr. Guy Donaldson, Acting Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Please include the text “Public comment on ID No. TX-155-1-7591” in the subject line of the first page of your comments.

3. By Hand Delivery or Courier. Deliver your written comments or comments on a disk or CD ROM to: Mr. Guy Donaldson, Acting Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, Attention “Public comment on ID No. TX-155-1-7591.” Such deliveries are only accepted during official hours of business, which are Monday through Friday, 8:30 a.m. to 4 p.m., excluding federal holidays.

4. By Facsimile. Fax your comments to: [phone], Attention “Public comment on ID No. TX-155-1-7591.”

D. How Should I Submit CBI to the Agency?

You may assert a business confidentiality claim covering CBI information included in comments submitted by mail or hand delivery in either paper or electronic format. CBI should not be submitted via e-mail or at the Regulations.gov Web site. Clearly mark any part or all of the information submitted which is claimed as CBI at the time the comment is submitted to EPA. CBI should be submitted separately, if possible, to facilitate handling by EPA. Submit one complete version of the comment that includes the properly labeled CBI for EPA's official administrative record and one copy that does not contain the CBI to be included in the public rulemaking file. If you submit CBI on a disk or CD ROM, mark the outside of the disk or the CD ROM that it contains CBI and then identify the CBI within the disk or CD ROM. Also submit a non-CBI version if possible. Information which is properly labeled as CBI and submitted by mail or hand delivery will be disclosed only in accordance with procedures set forth in 40 CFR Part 2. For comments submitted by EPA's e-mail system or through the Regulations.gov Web site, no CBI claim may be asserted. Do not submit CBI to the Regulations.gov Web site or via EPA's e-mail system. Any claim of CBI will be waived for comments received through the Regulations.gov Web site or EPA's e-mail system. For further advice on submitting CBI to the Agency, contact the person listed in the For Further Information Contact section of this notice.

E. What Should I Consider as I Prepare My Comments for EPA?

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate ID No. in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 1, 2003. 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
• Carbon Monoxide
• Hydrocarbons
• Intergovernmental relations
• Lead
• Nitrogen oxides
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: September 15, 2003.

Lawrence E. Starfield,

Deputy Regional Administrator, Region 6.

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 et seq.

Subpart SS—Texas

2. The table in § 52.2270(c) entitled “EPA Approved Regulations in the Texas SIP” is amended under Chapter 116, Subchapter B, Division 1, by revising the existing entry for Section 116.112 to read as follows:

§ 52.2270

Identification of plan.

* * * * *

(c) * * *

EPA Approved Regulations in the Texas SIP

State citation	Title/Subject	State approval/Submittal date	EPA approval date	Explanation
*         *         *         *         *         *         *
Chapter 116 (Reg 6)—Control of Air Pollution by Permits for New Construction or Modification
*         *         *         *         *         *         *
Subchapter B—New Source Review Permits
Division 1—Permit Application
*         *         *         *         *         *         *
Section 116.112	Distance Limitations	12/18/02	September 30, 2003
*         *         *         *         *         *         *