04-6309. Approval and Promulgation of Implementation Plans; Texas; Control of Emission of Oxides of Nitrogen (NOX

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving revisions to the Texas State Implementation Plan (SIP). These revisions concern Control of Air Pollution from Nitrogen Compounds—Cement Kilns. The affected sources are major cement kilns that were in service before December 31, 1999. The EPA is approving these SIP revisions for cement kilns as they will contribute to attainment of the 1-hour ozone National Ambient Air quality Standards (NAAQS). Today's action does not intend to address any aspect(s) of the implementation of the 8-hour ozone NAAQS. The EPA is approving control of emissions of NO_X from cement kilns in accordance with the requirements of the Federal Clean Air Act (the Act).

DATES:

This rule is effective on April 26, 2004.

ADDRESSES:

Copies of the documents relevant to this action are available for public inspection during normal 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, Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.

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

FOR FURTHER INFORMATION CONTACT:

Mr. Alan Shar, Air Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone [phone], and [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What actions are we taking in this document?

2. Who submitted comments to us?

3. How do we respond to the submitted written comments?

4. What do these rule revisions for cement kilns that we are approving provide?

5. What areas in Texas will these rule revisions affect?

Statutory and Executive Order Reviews

In this document “we,” “us,” and “our” refer to EPA.

1. What Actions Are We Taking in This Document?

On April 30, 2000, the Governor of Texas submitted to us rule revisions to 30 TAC, Chapter 117, Control of Air Pollution From Nitrogen Compounds concerning cement kilns operations (April 30, 2000 SIP submittal). The April 30, 2000 SIP submittal specifically addressed revisions to the following sections of Chapter 117.

Table I.—Affected Sections of the Rule Under April 30, 2000 SIP Submittal

Section	Title
117.260	Cement Kiln Definitions.
117.261	Applicability.
117.265	Emissions Specifications.
117.273	Continuous Demonstration of Compliance.
117.279	Notification, Recordkeeping, and Reporting Requirements.
117.283	Source Cap.
117.524	Compliance Schedule for Cement Kilns.

In CEMEX USA (CEMEX) and TXI Operations, LP (TXI) v. TCEQ, Case No. GN001480 (Travis Co. Dist. Ct. April 30, 2003), CEMEX and TXI challenged the State for adopting the above revision to Chapter 117. As a part of a negotiated settlement of the case, TCEQ issued a re-proposal to revise 30 TAC, Chapter 117, on October 24, 2002.

On December 9, 2002, EPA submitted comments to TCEQ concerning re-proposed revisions to Chapter 117.

On April 2, 2003, TCEQ submitted a revised Chapter 117, Control of Air Pollution from Nitrogen Compounds rule concerning cement kilns operations as a revision to the SIP (April 2, 2003 SIP submittal). The April 2, 2003 SIP submittal specifically addressed revisions to the following sections of Chapter 117.

Table II.—Affected Sections of the Rule Under April 2, 2003 SIP Submittal

Section	Title
117.260	Cement Kiln Definitions.
117.265	Emissions Specifications.
117.279	Notification, Recordkeeping, and Reporting Requirements.
117.283	Source Cap.
117.524	Compliance Schedule for Cement Kilns.
117.570	Use of Credits for Compliance.

On July 30, 2003 (68 FR 44631), we published a direct final rulemaking action on these two submittals. In 68 FR 44631 we stated that if EPA receives relevant adverse comments, EPA would publish a timely withdrawal in the Federal Register informing the public that this Texas SIP revision would not take effect. The EPA received relevant adverse comments on the July 30, 2003 (68 FR 44631), rulemaking action during the public comment period.

On September 15, 2003 (68 FR 53891), we published a withdrawal in the Federal Register stating that we will be summarizing and responding to comments received on this Texas SIP revision. Today, we are summarizing and responding to comments received on our July 30, 2003 (68 FR 44631), Texas SIP revision.

2. Who Submitted Comments to Us?

We received written comments on our July 30, 2003 (68 FR 44631), Texas SIP revision from a private citizen, Blue Skies Alliance, Downwinders At Risk, and Lone Star Chapter of Sierra Club (the Commenters).

3. How Do We Respond to the Submitted Written Comments?

Our responses to the written comments concerning July 30, 2003 (68 FR 44631), Texas SIP revision are as follows:

Comment #1: The Commenters state the proposed NO_X rules are insufficient to allow the Dallas/Fort Worth (D/FW) area to move effectively toward attainment.

Response to Comment #1: The primary purpose of the proposed rule was to reduce emissions of NO_X from this specific industrial sector. The State's development of this rule for cement industry was part of its air quality planning effort to not only achieve controls in the nonattainment area, but also to reduce ozone precursor emissions on a regional basis. Our proposed July 30, 2003 rulemaking (68 FR 44631), in and by itself, was not intended to serve as an attainment demonstration plan for the D/FW area. The controls for the cement kilns was one part of the larger attainment demonstration SIP which was adopted by the State of Texas and submitted to EPA in April 2000. Our action today will make the existing Texas rule for each cement kiln that was placed into service before December 31, 1999, in 5 Texas Counties of Bexar, Comal, Ellis, Hays, and McLennan, federally enforceable. We want to make it clear that our approval of this Texas SIP revision is independent of any future NO_X reduction measures that could be required of the cement industry, if such reduction measures are determined necessary for attainment of the 8-hour ozone NAAQS and are considered to be feasible and practicable.

Comment #2: The Commenters state that a local air committee recommended reductions of fifty percent as opposed to the proposed thirty percent for NO_X from cement kilns in Ellis County.

Response to Comment #2: The proposed rule was submitted to EPA in accordance with section 110(a)(2) of the Act. The proposed emissions reduction level of at least thirty percent from the 1996 baseline level is in agreement with those found in our reference document “Alternative Control Techniques Document—NO_X Emissions from Cement Manufacturing” EPA-453/R-94-004 (ACT Document). The TCEQ's emissions level of NO_X control (at minimum thirty percent reduction) is in agreement with the “Federal Implementation Plans to Reduce Regional Transport of Ozone” of October 21, 1998 (63 FR 56394). Also see our response to Comment #1 in this document.

Comment #3: The Commenters state that Selective Catalytic Reduction (SCR) and Selective Non-Catalytic Reduction (SNCR) have been found to make reductions up to eighty percent depending on the fuel source and type of kiln.

Response to Comment #3: The analysis for the approvability of this Texas SIP revision was evaluated against our ACT Document, and against the limitations and requirements of other federally approved SIPs for existing cement kilns. Our Technical Support Document (TSD) did not identify any EPA-approved SIP rules in other parts of the country that have mandated SCR or SNCR as a required control strategy for controlling NO_X from existing cement kilns. We provided a copy of our TSD to the Commenters at their request during the public comment period. Our rulemaking action today will make existing Texas rule federally enforceable, and is consistent with EPA's past approvals. Our approval today is not intended to preclude additional control requirements being applied to the cement industry, if such control requirements are determined necessary for attainment of the 8-hour ozone NAAQS and the application of such control requirements is determined feasible and practicable.

Comment #4: The Commenters state that SCR/SNCR should be included as acceptable means of control technology for NO_X reductions.

Response to Comment #4: The proposed rule offers several means of control to a source in order to comply with the emission limitations. Also see our response to Comment #3 in this document. Absent information on or examples of SCR or SNCR cases used as a required technique for controlling NO_X from existing cement kilns in any other federally approved-SIPs from the Commenters, we disagree with the Commenters at this time. However, should these or other similar technologies demonstrate success for cement manufacturing sector, EPA will then re-examine its RACT or ACT determinations.

Comment #5: The Commenters state that low-NO_X burner is an ambiguous term unless associated with a manufacturer of this type device or with accompanying specifications. Any facility proposing the use of this type device shall first provide the manufacturers statement describing the product, its capabilities and limitations. In cases where the facility proposes to build their own, that facility shall submit to the proper authority, their design along with evidence they are experienced in this field, sufficient to design and build a product that will achieve the required results, prior to its being approved as part of an emissions reduction plan.

Response to Comment #5: Section 5.1.3 of our ACT Document states that low-NO_X burners are designed to reduce flame turbulence, delay fuel/air mixing, and establish fuel-rich zones for initial combustion. The longer, less intense flames resulting from the staged combustion lower flame temperatures and consequently reduce thermal NO_X formation. Figure 5-1 on Page 5-7 of that document also illustrates the schematic of a typical low-NO_X burner. For information concerning low-NO_X burners we refer the Commenters to section 5.1.3 of our ACT Document. The proposed rulemaking departs from a command and control approach and offers a menu of options to an affected source to comply with the emission limitations. The EPA does not subscribe to advocating a prescribed design, make, model or manufacturer as the only means of controlling emissions. If a source has a different or innovative method of controlling emissions and can successfully demonstrate that its method is effective in both pilot plant and large scale operations, then EPA sees no reason to disapprove the implementation of the source's method of control. Furthermore, the effectiveness of the control technology will be determined by continuous monitoring and through compliance testing.

Comment #6: The Commenters propose to delete any reference to rolling average of NO_X emissions. They further state that rolling averages allow facilities to exceed emissions during periods of increased production, increasing the air pollution for those days. The Commenters contend that by shutting down one or two days within the month, the facility could avoid exceeding their allowable.

Response to Comment #6: We disagree. Rolling average is a commonly accepted averaging method in regulations governing emissions from cement manufacturing. The TSD for our proposal (68 FR 44631) refers to rules from various parts of the country that have adopted a similar averaging window (30-day) or language (rolling average) in their rules. While EPA is endorsing a 30-day rolling average as the basis for NO_X emission specifications in section 117.265 of the rule, we do not approve of a 365-day rolling average or an annual average for NO_X emission specifications in section 117.265. We consider annual averaging of emission specifications to be problematic for permitting and compliance determination purposes. Furthermore, the inherent continuous operational nature of a cement kiln could limit an operator's ability from shutting down one or two days within the month as suggested by the Commenters. The affected sources are required to emit at or below their permitted levels of emissions. Appropriate test methods, recordkeeping, reporting, compliance certification, and Continuous Emissions Monitor System (CEMS) data along with SIP rules constitute proper mechanisms to assure compliance with the terms and conditions of this regulation and air permits issued to an affected source. Contrary to the Commenters' contention, the rule of law does not allow EPA to arbitrarily shut down a business one or two days within the month.

Comment #7: The Commenters state that the rule should provide that allowable emissions shall be based upon the actual pounds/hour, pounds/day, tons/year and exceedances in any one-hour or day shall generate enforcement action.

Response to Comment #7: We believe that the actual production level in conjunction with the length of operation at an affected source is the proper method to set an emissions limitation for cement manufacturing. We believe that an emission limitation of “pound NO_X per ton of clincker produced” in conjunction with appropriate test methods, recordkeeping, reporting, compliance certification, and CEMS data built into air permits constitute a proper enforceable mechanism to assure compliance with the terms and conditions of this regulation and air permits issued to an affected source.

Comment #8: The Commenters propose to remove reference to percentages of reduction when establishing compliance. Existing permits include a Maximum Allowable Emission Rate (MAER) table. In complying with this new rule for cement kilns, each facility shall be required to amend or modify their existing permit to reflect the actual NO_X in pounds/day, tons/year revision in the MAER table which corresponds to the percent reduction required by this rule.

Response to Comment #8: Each affected source is required to operate at or below its permitted levels of emissions. The proposed rule requires at least thirty percent reduction in NO_X emissions when compared with the 1996 baseline inventory data. Section 117.205 lists emission limitations for each type of kiln in a designated County. These requirements combined with appropriate test methods, recordkeeping, reporting, compliance certification, and CEMS data which are built into air permits constitute a proper enforceable mechanism to assure compliance with the terms and conditions of air permits issued to an affected source. The rule is intended to complement, supplement, and strengthen the air contaminants data in the MAER table of air permits, not to replace those limits. Air permit modifications or amendments of affected facilities are handled according to the applicable State's title V or New Source Review program. For above reasons we disagree with the Commenters.

Comment #9: The Commenters state that all Ellis County cement kilns including both wet and dry process kilns should reduce their emissions by fifty percent, as recommended by a local committee, instead of the proposed thirty percent using the 1996 emissions as the baseline year. The Commenters state that the reduction in this rule, will not achieve the necessary ozone reduction required to meet the D/FW SIP deadline.

Response to Comment #9: The proposed rule was submitted to EPA in accordance to section 110(a)(2) of the Act. The emissions reduction level of at least thirty percent from the 1996 baseline levels is in agreement with those found in our ACT Document. The reductions are in agreement with EPA's October 21, 1998, Federal Implementation Plans to Reduce Regional Transport of Ozone. See 63 FR 56394. As an example, the NO_X emissions specifications of 4.0 lb NO_X/ton of clinker produced for a long wet kiln operating in Ellis County is comparable to or more stringent than the NO_X emissions specifications from similar cement kilns in many other parts of country. The proposed July 30, 2003 rulemaking (68 FR 44631), in and by itself, was not intended to serve as an attainment demonstration plan for the D/FW area. However, as noted previously, we want to make it clear that our approval of this Texas SIP revision is independent of any future NO_X reduction measures that could be required of the cement industry, if such reduction measures are determined necessary for attainment of the 8-hour ozone NAAQS and are considered to be feasible and practicable.

Comment #10: The Commenters state that in applying mid-kiln firing/secondary combustion as a method of NO_X reduction, no new types of chemical or chemical compounds, not previously emitted, should be resulted in the emission inventory.

Response to Comment #10: 40 CFR 63, Subpart LLL—National Emission Standards for Hazardous Air Pollutants (NESHAP) from the Portland Cement Manufacturing Industry (64 FR 31925, June 14, 1999) applies to each new and existing portland cement plant which is a major source or an area source. Subpart LLL regulates emissions of Dioxin, Furan, Particulate Matter, Opacity, and Total Hydrocarbon Carbon. The NO_X emissions are not regulated under Subpart LLL. Elsewhere the Commenters suggest imposition of post combustion control devices such as SCR on the affected sources. Use of SCR as a control device has the potential to cause emission of chemical reagents such as ammonia or urea in the form of particulate matter which were not previously emitted. All affected facilities are required to emit at or below their permitted levels. For these reasons we disagree with the Commenters.

Comment #11: The Commenters state that subsection 117.265(c) should be removed in its entirety. No cement facility shall be exempt from complying with required emission reductions as stipulated in this section.

Response to Comment #11: Subsection 117.265 (c) will allow a source to choose from a menu of options to achieve at least a thirty percent reduction in NO_X emissions. These options range from complying with the specified emissions limitations, installing and operating a low NO_X burner, mid-kiln firing, a secondary combustion control, or other changes to the kiln that would achieve at least thirty percent reduction in NO_X emissions. These options are consistent with the type of controls in NO_X rules for cement manufacturing in other parts of country. Our TSD for the 68 FR 44631 rulemaking detailed a number of federally-approved NO_X rules for cement manufacturing. We provided the Blue Skies Alliance with a copy of our TSD. The EPA considers subsection 117.265(c) as an appropriate means of extending operational flexibility to a source to achieve compliance. For these reasons we disagree with the Commenters.

Comment #12: The Commenters state that the rule shall remove any and all authority from the executive director and/or commissioners to exempt any kiln or facility from those required reductions regardless of the reason.

Response to Comment #12: A source will need to comply with all applicable provisions of the SIP. The notification, recordkeeping, and reporting requirements in section 117.279, and the compliance schedule for cement kilns in section 117.524 serve as mechanisms for achieving and maintaining compliance with the rule. Therefore, we do not interpret this SIP revision as authorizing the executive director and/or commissioners to exempt cement manufacturing sector from emissions reductions required under Chapter 117.

Comment #13: The Commenters state that subsection 117.265(e) (Use of Emissions Credits for Compliance) should be removed in its entirety. Using emission credits to achieve compliance with the control of NO_X requirements does not satisfy the overall purpose of this rule, that being to reduce the total NO_X emissions that prevent conformance with the SIP. This provision only serves to allow a facility to manipulate their operation to avoid the cost of proper control technology.

Response to Comment # 13: We disagree with the Commenters. Title IV—Acidic Deposition Control (Acid Rain Program) of the Act is a prime example of the regulatory use of emissions banking and trading for compliance purposes. Other federally-approved SIP revisions of Texas' Chapter 117 rule, affecting many other types of facilities, contain provisions allowing use of emissions credits for compliance. Singling out the cement manufacturing sector from use of emissions credits for compliance by deleting any provisions that would allow use of emissions credits for compliance would increase the bar of compliance and extend unfair advantage to other sectors.

Comment #14: The Commenters state that the rule should provide access by citizens to the actual CEMS data for review.

Response to Comment #14: The Act requires that emission data and information be open and available to the public. The State is also required to comply with the sections 110(a)(2)(F)(i) through (iii) of the Act. As applicable, the air permits issued to the affected sources contain special conditions for recording, reporting, and recordkeeping information concerning CEMS. Reports of inspection of these affected sources are also open and available to the public. For these reasons no further change to the text of proposed rule is warranted.

Comment #15: The Commenters state that any provisions for the use or application of Predictive Emissions Monitoring System (PEMS) should be deleted.

Response to Comment #15: A PEMS is the total equipment necessary for the determination of a gas concentration or emission rate using processor control device operating parameter measurements and a conversion equation, a graph, or computer program to produce results in units of the applicable emission limitation or standard. Historically, other federally-approved SIP revisions of Texas' Chapter 117 rule, affecting many other types of facilities, contain provisions allowing use of PEMS. Singling out the cement manufacturing sector from use of PEMS by deleting any provisions that would allow use of PEMS would increase the bar of compliance and extend unfair advantage to other sectors. Therefore, no further change to the text of proposed rule is warranted.

Comment #16: The Commenters state that subsection 117.273(b)(1)(C) should be deleted. Performance under 40 CFR 60, Appendix F, Sections 5.1 and 5.1.1 shall apply and deviations or exceptions shall not be allowed under this rule.

Response to Comment # 16: Section 117.273 requires installation, calibration, maintenance, and operation of CEMS. Subsection 117.273(b) requires use of 40 CFR 60.13 and Appendix B, Performance Specification 2 for NO_X. Subsection 117.273(b)(1)(C) requires use of 40 CFR 60 Appendix F Section 5.1 for quality assurance purposes. As applicable, the air permits issued to the affected sources contain special conditions for recording, reporting, and recordkeeping information concerning CEMS. Affected monitors will need to comply with all applicable monitoring requirements. Such provisions have been already incorporated in the proposed rule.

Comment #17: The Commenters state that section 117.283 in its entirety should be deleted. The purpose of this proposed rule is the reduction of NO_X. Manipulating numbers to achieve emission reductions does not satisfy such a requirement. Reductions can and should be achieved through adequate control technology.

Response to Comment #17: Section 117.283 concerns the source cap. The proposed rule will result in an annual overall reduction of 5,913.3 tons of NO_X from affected sources. The EPA considers this amount to be a significant reduction in NO_X emissions. We do not agree with the Commenters' characterization that requiring at least thirty percent reduction in NO_X emissions as manipulating numbers to achieve emission reductions. With regard to adequate control technology we refer the Commenters to our response to Comment #2 of this document.

Comment #18: The Commenters state that the rule should include an operation requirement that all cement kilns that exceed permitted NO_X emission rates in excess of 2.8 lbs NO_X/ton clinker shall cease operation between March 1st and September 30th, the ozone season, to ease the burden of harmful ozone levels on the D/FW area.

Response to Comment #18: Absent significant information substantiating the Commenters' position, EPA is unable to adopt a provision in its regulation which requires all cement kilns in Ellis County cease operations between March 1st and September 30th, if the 2.8 lbs NO_X/ton clinker emissions limitation has been exceeded. However, the State is in the process of developing a future revision to the D/FW ozone SIP. Consideration of impact of the cement plants and the potential for additional control measures will be a part of this regulatory process. Also see our response to Comment #1 in this document.

Comment #19: The Commenters state that this rule demonstrates a greater effort toward relieving facilities from emissions reduction than it does to actually reduce emissions required to satisfy compliance with the SIP and protect the health of citizens.

Response to Comment #19: As stated in section 5 of our proposal (68 FR 44631), “currently Texas SIP contains no federally-approved requirements for controlling NO_X emissions from cement kilns.” The proposed rule will result in an annual overall reduction of 5,913.3 tons of NO_X from affected sources in these Counties. The EPA considers this amount to be a significant reduction in NO_X emissions. We do not agree with the Commenters' characterization that requiring at least thirty percent reduction in NO_X emissions as an effort toward relieving facilities from emissions reduction.

Comment #20: The Commenters state that the economics and financial condition of an industry is not the concern of the EPA or the TCEQ, that responsibility belongs to the Commerce Department.

Response to Comment #20: All EPA and TCEQ's revisions to the SIP will need to comply with and adhere to applicable provisions of the Act. We believe that our July 30, 2003 (68 FR 44631), rulemaking action is in accord with the requirements of the Act and EPA's policies.

Comment #21: A private citizen stated that in his opinion this rule ranks among the worst proposals offered by EPA since the exodus of Administrator Browner.

Response to Comment #21: The proposed rule was submitted to EPA in accordance to section 110(a)(2) of the Act. The proposed emissions reduction level of at least thirty percent from the 1996 baseline levels is in agreement with those found in our ACT Document. The proposed reductions are in agreement with the 63 FR 56394, October 21, 1998, the Federal Implementation Plans to Reduce Regional Transport of Ozone. For example, the NO_X emissions specifications of 4.0 lb NO_X/ton of clinker produced for a long wet kiln operating in Ellis County (designated as attainment for 1-hour ozone NAAQS), is comparable to or more stringent than the NO_X emissions specifications from similar cement kilns in many other parts of country. The proposed rule will result in an annual overall reduction of 5,913.3 tons of NO_X from affected sources in these Counties. For these reasons we disagree with the commenter's characterization of the proposed rule.

This concludes our responses to the written comments we received concerning the July 30, 2003 (68 FR 44631), Texas SIP revision.

4. What do these Rule Revisions for Cement Kilns that we are Approving Provide?

These rule revisions require at least thirty percent reductions of NO_X compared with the 1996 baseline emission inventory from each cement kiln that is major source in Bexar, Comal, Ellis, Hays, and McLennan Counties, and was placed into service before December 31, 1999. The following 2 tables contain a summary of these SIP revisions for cement kilns in these 5 Texas Counties.

Table III.—Affected Sources, Locations, and NO_X Emissions Specifications for Cement Kilns

Source	County	NOX emission specification
Long wet kiln	Bexar, Comal, Hays, McLennan	6.0 lb NOX/ton of clinker produced.
Long wet kiln	Ellis	4.0 lb NOX/ton of clinker produced.
Long dry kiln	Bexar, Comal, Hays, McLennan, Ellis	5.1 lb NOX/ton of clinker produced.
Preheater kiln	Bexar, Comal, Hays, McLennan, Ellis	3.8 lb NOX/ton of clinker produced.
Precalciner or preheater-precalciner kiln	Bexar, Comal, Hays, McLennan, Ellis	2.8 lb NOX/ton of clinker produced.

Table IV.—Affected Sources and Their Compliance Schedules

Source	Compliance schedule
Cement kilns in Ellis County	May 1, 2003.
Cement kilns in Bexar, Comal, Hays, and McLennan	May 1, 2005.

These emissions specifications meet and are in agreement with those found in our ACT Document, and are comparable to or more stringent than emission specifications for cement kilns in a number of other federally approved State rules.

5. What Areas in Texas Will These Rule Revisions Affect?

The following table contains a list of Counties affected by today's rulemaking action.

Table V.—Affected Texas Counties by the Cement Kiln Provisions of Chapter 117

Rule/source	Affected counties
Chapter 117/Cement Kilns	Bexar, Comal, Ellis, Hays, and McLennan.

If you are in one of these Texas counties, you should refer to the Chapter 117 rules to determine if and how today's action will affect you.

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). This action 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. 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 May 25, 2004. 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
• Cement kiln
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: March 12, 2004.

Richard E. Greene,

Regional Administrator, Region 6.

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. In § 52.2270 the table in paragraph (c) is amended under Chapter 117, Subchapter B, by adding a new entry heading as “Division 4—Cement Kilns”, adding new individual entries for sections “117.260, 117.261, 117.265, 117.273, 117.279, and 117.283”; Subchapter E, by adding a new individual entry for section 117.524 and revising the entry for section 117.570.

§ 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 117 (Reg 7)—Control of Air Pollution From Nitrogen Compounds
*         *          *          *         *          *          *
Subchapter B—Division 4—Cement Kilns
Section 117.260	Cement Kiln Definitions	04/19/00, 03/05/03	03/26/04 and [FR page number]
Section 117.261	Applicability	04/19/00	03/26/04 and [FR page number]	Also finalizes 65 FR 64914
Section 117.265	Emission Specifications	04/19/00, 03/05/03	03/26/04 and [FR page number]
Section 117.273	Continuous Demonstration of Compliance	04/19/00	03/26/04 and [FR page number]	Also finalizes 65 FR 64914
Section 117.279	Notification, Recordkeeping, and Reporting Requirements	04/19/00, 03/05/03	03/26/04 and [FR page number]
Section 117.283	Source Cap	04/19/00, 03/05/03	03/26/04 and [FR page number]
*         *          *          *         *          *          *
Subchapter E—Administrative Provisions
	*         *          *          *         *          *          *
Section 117.524	Compliance Schedule for Cement Kilns	04/19/00, 03/05/03	03/26/04 and [FR page number]
117.570	Use of Emissions Credits for Compliance	3/05/03	03/26/04 and [FR page number]
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