[Federal Register Volume 59, Number 178 (Thursday, September 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22789]


[[Page Unknown]]

[Federal Register: September 15, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[TX-30-1-6527a; FRL-5069-6]

 

Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Site Specific Particulate Control Plan for ASARCO, El Paso

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves a revision to the Texas State 
Implementation Plan (SIP) addressing a request for a waiver from 
certain industrial roadway paving for the ASARCO copper smelter in El 
Paso, Texas. Specifically, in lieu of paving, this action approves an 
alternate particulate control plan for certain industrial unpaved roads 
at the El Paso ASARCO copper smelter.

DATES: This final rule will become effective on November 14, 
1994,unless notice is received by October 17, 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 (FR).

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 twenty-four hours before the visiting day.

U.S. Environmental Protection Agency, Region 6, Air Programs Branch 
(6T-A), 1445 Ross Avenue, suite 700, Dallas, Texas 75202.
U.S. Environmental Protection Agency, Air and Radiation Docket and 
Information Center, 401 M Street, SW., Washington, DC 20460.
Texas Natural Resource Conservation Commission, 12124 Park 35 Circle, 
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Sather, Planning Section (6T-
AP), Air Programs Branch, USEPA Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202-2733, telephone (214) 655-7258.

SUPPLEMENTARY INFORMATION:

Background

    When the EPA approved the El Paso moderate area PM-10 (particulate 
matter with an aerodynamic diameter less than or equal to a nominal 10 
micrometers) SIP on January 18, 1994 (please reference 59 FR 2532), 
certain sections of Texas Regulation I were incorporated by reference 
into the Texas SIP. One such section was 111.147 concerning particulate 
control for roads, streets and alleys, the first part reading as 
follows:

111.147. Roads, Streets, and Alleys.
    No person may cause, suffer, allow, or permit any public, 
industrial, commercial, or private road, street, or alley to be used 
without taking at least the following precautions to achieve control 
of dust emissions:
    (1) Application of asphalt, water, or suitable oil or chemicals 
on the following unpaved surfaces, except in the City of El Paso (El 
Paso) and the Fort Bliss Military Reservation, except as noted in 
Section 111.141 of this title (relating to Geographic Areas of 
Application and Date of Compliance), where the use of paving 
materials is the only acceptable method of dust control, unless 
otherwise specified:
    (A) Industrial Facility Roadways--all major inplant roads and 
all truck or other heavy-duty vehicle pathways. Major in-plant roads 
shall be defined as those which are designed to accommodate two-way 
traffic and are at least 30 feet wide at at least one point, 
measuring the distance from the edge of the undisturbed earth on 
either side of the established roadway. The Executive Director, with 
the concurrence of the United States Environmental Protection 
Agency, may grant a waiver from the requirement to pave an 
industrial facility roadway if the owner of the roadway demonstrates 
that the cost of paving is economically unreasonable compared to 
other methods of dust control specified in subsection (1) * * *

    On January 30, 1992, as per section 111.147(1)(A), ASARCO requested 
a waiver from paving the slag haul road and certain segments of other 
low-traffic roads at its El Paso copper smelter. In order for the 
Executive Director of the Texas Natural Resource Conservation 
Commission (TNRCC) and the EPA to grant the waiver, ASARCO had to 
adequately demonstrate that the cost of paving was economically 
unreasonable compared to other methods of dust control (i.e., the use 
of water or water/chemical dust suppressant mixtures).

Analysis of State Submission

A. Procedural Background

    The Clean Air Act (CAA) requires States to observe certain 
procedural requirements in developing implementation plans for 
submission to the EPA. Section 110(a)(2) of the CAA provides that each 
implementation plan submitted by a State must be adopted after 
reasonable notice and public hearing (see also section 110(l) of the 
CAA). Also, the EPA must determine whether a submittal is complete, and 
therefore warrants further EPA review and action (see section 110(k)(1) 
and 57 FR 13565). The EPA's completeness criteria for SIP submittals 
are set out at 40 CFR part 51, appendix V. The EPA attempts to make 
completeness determinations within 60 days of receiving a submission. 
However, a submittal is deemed complete by operation of law if a 
completeness determination is not made by the EPA six months after 
receipt of the submission.
    After providing adequate notice, the State of Texas held a public 
hearing on February 18, 1992, to entertain public comment on Permit No. 
20345 for ASARCO Inc., El Paso. Following the public hearing, Permit 
No. 20345 was approved by the Texas Air Control Board (TACB) on May 8, 
1992. Earlier, on January 30, 1992, ASARCO requested a waiver from 
paving certain industrial roadways at its El Paso copper smelter. The 
TNRCC, formerly the Texas Air Control Board (TACB), adopted the waiver 
on March 9, 1994, in a Commission Order. This Order also sets out an 
alternate particulate control plan for certain unpaved industrial roads 
at ASARCO based on Permit No. 20345. The Order was submitted as a SIP 
revision to the EPA by cover letter from the Governor dated March 30, 
1994.
    The SIP revision was reviewed by the EPA to determine completeness 
shortly after its submittal, in accordance with the completeness 
criteria referenced above. A letter dated May 19, 1994, was forwarded 
to the Governor indicating the completeness of the submittal and the 
next steps to be taken in the review process.

B. Review of ASARCO Waiver Request

    In the March 30, 1994, SIP revision package from the Governor, 
substantial documentation was provided showing that the cost of paving 
the slag haul road and other industrial roadways at the El Paso ASARCO 
copper smelter was indeed economically unreasonable compared to 
alternate particulate control methods. The EPA has reviewed ASARCO's 
cost calculations and finds that the calculations indeed adequately 
demonstrate that the cost of paving the slag haul road and certain 
other industrial vehicle routes is economically unreasonable compared 
to the cost of using other acceptable particulate control methods (i.e. 
water and chemicals). In addition, the alternate particulate control 
plan provides for adequate PM-10 emission reductions, indeed, more 
reductions than paving would provide. Following are summary tables of 
the cost comparisons and PM-10 emission reductions: Slag Haul Road: 
Uncontrolled PM-10 emissions=2.31 tons/year (t/y)

------------------------------------------------------------------------
                                                              Actual PM-
                                                   Cost/ton       10    
                 Control method                    of PM-10   reductions
                                                   reduced     obtained 
------------------------------------------------------------------------
Paving..........................................    $199,000    0.94 t/y
Daily watering + chemical spray.................      23,000    1.62 t/y
------------------------------------------------------------------------

Other Roads: Uncontrolled PM-10 emissions=9.84 t/y 

------------------------------------------------------------------------
                                                              Actual PM-
                                                   Cost/ton       10    
                 Control method                    of PM-10   reductions
                                                   reduced     obtained 
------------------------------------------------------------------------
Paving..........................................     $42,000    2.19 t/y
Continuous wetting + chemical spray.............      16,000    9.84 t/y
------------------------------------------------------------------------

    In conducting their analysis, ASARCO used the emission factor 
calculations from the EPA document entitled ``Compilation of Air 
Pollution Emission Factors (AP-42)'', and conducted on-site silt 
sampling from the slag haul road and four other industrial vehicle 
routes.
    In lieu of paving, ASARCO will use the following as alternate 
particulate control methods for the slag haul road and other applicable 
unpaved roads: (1) Continuous wetting using an automatic sprinkler 
system; or (2) daily watering and twice weekly application of a 
chemical oil spray. ASARCO must maintain a log record for a two year 
period showing the amount of water and chemical applied daily for 
unpaved roads not maintained in a continuously wetted condition. These 
dust control methods are described in federally enforceable permit No. 
20345, Special Provisions 31 and 33, and in the enclosure to a June 8, 
1993, letter from the TACB to the EPA. The June 8, 1993, letter is 
being approved in this action as incorporation by reference material.

Final Action

    This action approves a revision to the Texas SIP to include an 
alternate particulate control plan (in lieu of paving) for certain 
industrial unpaved roads at the El Paso ASARCO copper smelter. In 
approving this alternate control plan, the EPA concurs with the State 
of Texas in granting a waiver from certain industrial roadway paving 
for the ASARCO copper smelter in El Paso as per Texas Regulation I, 
Sec. 111.147(1)(A). The EPA concurs with the Executive Director of the 
TNRCC that the El Paso ASARCO copper smelter has adequately 
demonstrated that the cost of paving certain industrial roadways is 
economically unreasonable compared to the cost of other methods of dust 
control (i.e., the use of water or water/chemical dust suppressant 
mixtures).
    The EPA has reviewed these revisions to the Texas SIP and is 
approving them 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 Federal Register publication, the EPA is proposing to 
approve the SIP revision should adverse or critical comments be filed. 
Thus, this action will be effective November 14, 1994, unless, by 
October 17, 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 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 14, 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.

Miscellaneous

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, the EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D, of the 
CAA do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP 
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-State relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
CAA forbids the EPA to base its actions concerning SIPs on such grounds 
(Union Electric Co. versus U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42 
U.S.C. 7410(a)(2)).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 14, 1994. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

Executive Order

    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter.

    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 26, 1994.
W.B. Hathaway,
Acting Regional Administrator (6A).

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart SS--Texas

    2. Section 52.2270 is amended by adding paragraph (c)(83) to read 
as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * *
    (83) A revision to the Texas SIP to include an alternate 
particulate control plan for certain unpaved industrial roadways at the 
ASARCO copper smelter in El Paso, submitted by the Governor by cover 
letter dated March 30, 1994.
    (i) Incorporation by reference.
    (A) Texas Natural Resource Conservation Commission Order No. 94-01, 
as adopted by the Texas Natural Resource Conservation Commission on 
March 9, 1994.
    (B) TNRCC Attachment 3 containing the Texas Air Control Board 
permit number 20345 for the ASARCO primary copper smelter in El Paso, 
Texas, issued May 11, 1992.
    (C) TNRCC Attachment 4 containing the June 8, 1993, letter from Mr. 
Troy W. Dalton, Texas Air Control Board (TACB), to Mr. Thomas Diggs, 
U.S. EPA Region 6, addressing the ASARCO Inc. (El Paso) waiver request 
from TACB Regulation I, Section 111.147(1)(A), including the enclosure 
entitled ``Waiver Provisions to Texas Air Control Board Regulation 
111.147(1)(A) for ASARCO, Incorporated, El Paso Account No. EE-0007-
G.''
    (ii) Additional material.
    (A) March 9, 1994, SIP narrative addressing the alternate 
particulate control plan (in lieu of paving) for certain unpaved 
industrial roadways at the ASARCO copper smelter in El Paso.

[FR Doc. 94-22789 Filed 9-14-94; 8:45 am]
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