[Federal Register Volume 61, Number 90 (Wednesday, May 8, 1996)]
[Rules and Regulations]
[Pages 20732-20734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11399]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-10-1-7025; FRL-5468-2]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Revision to the State Implementation Plan (SIP) Addressing
Visible Emissions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On April 3, 1995 the EPA simultaneously published a direct
final rule and notice of proposed rulemaking in which EPA published its
decision to approve a revision to the Texas SIP addressing visible
emissions. During the 30-day comment period, the EPA received three
comment letters in response to the April 3, 1995, rulemaking. This
final rule summarizes comments and EPA's responses, and finalizes the
EPA's decision to approve the revisions to the visible emissions
regulations for Texas.
EFFECTIVE DATE: June 7, 1996.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
addresses listed below. 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 Planning
Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
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. Thomas H. Diggs, Chief, Air
Planning Section (6PD-L), USEPA Region 6, 1445 Ross Avenue, Dallas,
Texas 75202-2733, telephone (214) 665-7214.
SUPPLEMENTARY INFORMATION:
Background
On April 3, 1995, the EPA published a direct final rulemaking
approving a revision to the existing Texas regulation concerning the
control of visible emissions (60 FR 16806). At the same time that the
EPA published the direct final rule, a separate notice of proposed
rulemaking was published in the Federal Register (60 FR 16829). This
proposed rulemaking specified that EPA would withdraw the direct final
rule if adverse or critical comments were filed on the rulemaking. The
EPA received three letters containing adverse comments regarding the
direct final rule within 30 days of publication of the proposed rule
and withdrew the direct final rule on June 5, 1995 (60 FR 29484).
The specific rationale EPA used to approve the revision to the
Texas visible emissions regulations is explained in the direct final
rule and will not be restated here. This final rule contained in this
Federal Register addresses the comments received during the public
comment period and announces EPA's final action regarding approval of
the visible emissions revisions.
Response to Public Comments
In the April 3, 1995, Federal Register, the EPA requested public
comments on the proposed/direct final rules (please reference 60 FR
16806-16808 and 60 FR 16829). The EPA received three adverse comment
letters dated May 3, 1995, and thus proceeded to withdraw the direct
final rule and adequately address each comment letter. The EPA's
response to each comment letter is detailed below.
1. A letter was received from Larry Feldcamp, Baker & Botts, LLP,
representing the Texas Industry Project (TIP). The TIP believed that
the Texas Regulation I provisions for visible emissions were
unwarranted, and that the EPA exceeded its statutory authority under
title I of the Clean Air Act as amended in 1990 (CAA) in proposing to
approve those provisions into the Texas SIP. The TIP believes that the
visible emissions provisions are not necessary for the attainment or
maintenance of any National Ambient Air Quality Standard (NAAQS) in
Texas. Further, the TIP is concerned that some visible emissions
provisions in Regulation I will cause more burdensome monitoring,
recordkeeping, reporting, and compliance certification requirements for
subject sources, since title V of the CAA incorporates SIP
requirements. Finally, the TIP expressed concern about federal suits
being available to enforce the visible emissions provisions, provisions
which the TIP believes should not be in the Texas SIP.
EPA's response to letter #1: Section 110(a)(1) of the CAA requires
States to provide plans for the implementation and maintenance, and
enforcement of primary and secondary criteria pollutant standards, and
for these plans to be submitted to EPA as part of the SIP. The visible
emissions revisions provide for maintenance of the particulate standard
statewide, and thus meet the intent of section 110(a)(1). Since EPA
believes that the visible emissions regulations provide for maintenance
of the particulate standard and strengthen the SIP as a whole,
incorporation of these revisions into the SIP is required under section
110. The EPA must take action on state SIP submittals to either approve
or disapprove the submittals. The EPA believes that the revised visible
emissions provisions in Texas Regulation I are approvable (note--the
existing Texas SIP contains visible emissions provisions in Texas
Regulation I). This approval will strengthen the Texas SIP by updating
the regulation. The EPA believes that
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without visible emissions provisions in the Texas SIP, certain NAAQS
(e.g. particulate, sulfur oxides, lead, ozone, and nitrogen dioxide)
could be threatened. Clearly, the presence of the visible emissions
provisions has resulted in particulate matter controls across the State
of Texas. For the important visible emissions provisions to be
eliminated from the Texas SIP, the State of Texas would have to submit
a modeling demonstration to the EPA showing that the NAAQS could be
attained and maintained in the State without the visible emissions
provisions in Regulation I. Also, the EPA believes that the opacity
provisions in Texas Regulation I provide visibility protection
(visibility is an air quality related value). In addition, opacity
limitations can be used as an indicator (or in some cases, as a
determinator) in judging compliance or noncompliance with particulate
matter (PM10) and other pollutant standards in the Texas SIP. Finally,
the EPA believes that the visible emissions provisions, along with the
Federal title V and the State permitting programs, allow for reasonable
flexibility in meeting monitoring, recordkeeping, reporting, and
compliance certification requirements so that an undue burden does not
fall upon subject sources. It is important to note that the original
enhanced monitoring proposal package, which provided for certain
monitoring, recordkeeping, reporting, and compliance certification
requirements, was withdrawn from the Office of Management and Budget on
April 3, 1995, was revised significantly, and is planned to be
reproposed in the Spring of 1996. The concerns about potentially
burdensome monitoring, recordkeeping, reporting, and compliance
certification requirements should be resolved under the new proposal
that the EPA, in conjunction with the States, local agencies, and the
regulated community, will produce.
It is the intent of section 110 of the CAA for States to develop an
effective SIP control strategy to ensure attainment and maintenance of
the NAAQS. One principle that must be adhered to is that the measures
contained in the SIP be federally enforceable. To be enforceable, a
legal means to ensure that sources remain in compliance with any
measures or rules contained in the SIP must be provided. Federal and
State suits are the legal means by which EPA ensures compliance with
SIP requirements.
2. A letter was received from Neil Carman representing the Sierra
Club (Lone Star Chapter). The Sierra Club supported the proposed action
to make federally enforceable the visible emissions provisions of Texas
Regulation I with one exception. The Sierra Club believed that the
Midlothian cement plants burning hazardous waste, or any cement plant
in Texas burning hazardous waste, should be subject to a more stringent
visible emissions standard than the grandfathered level of 30 percent
opacity. The Sierra Club also stated that the grandfathered status for
Texas Industries Inc. and North Texas Cement Company in Midlothian
should have been terminated when they were allowed to burn hazardous
waste.
3. A letter was received from Sue Pope representing Downwinders At
Risk (DAR). The DAR also believed that the Midlothian cement plants
burning hazardous waste should be subject to a more stringent visible
emissions standard than the grandfathered level of 30 percent opacity.
EPA's response to letters #2 and #3: The EPA will approve the
current provisions in order to strengthen the Texas SIP. There are
currently 4 PM10 monitors operating in the city of Midlothian, Texas.
The data collected from these monitors indicate levels far below the
annual and 24-hour PM10 NAAQS of 50 micrograms per cubic meter and 150
micrograms per cubic meter, respectively. EPA believes that these more
stringent visible emissions regulations will ensure protection of the
PM10 NAAQS in Midlothian. It is important to note that EPA continues to
participate in meetings with the Sierra Club and DAR concerning
Midlothian air quality concerns.
Final Rulemaking Action
In this final action EPA is promulgating a revision to Texas
Regulation I addressing visible emissions. This revision updates the
Texas SIP and strengthens the provisions of Texas Regulation I. This
revision was submitted by the Governor to the EPA by letters dated
August 21, 1989, January 29, 1991, October 15, 1992 and August 4, 1993.
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. v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42
U.S.C. section 7410(a)(2)).
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,
the EPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to state,
local, or tribal governments in the aggregate.
Through submission of this SIP or plan revision, the State and any
affected local or tribal governments have elected to adopt the program
provided for under section 110 of the CAA. These rules may bind the
State, local and tribal governments to perform certain actions and also
require the private sector to perform certain duties. To the extent
that the rules being approved by this action will impose no new
requirements, such sources are already subject to these regulations
under the State law. Accordingly, no additional costs to the State,
local, or tribal governments, or to the private sector, result from
this action. The EPA has also determined that this final action does
not include a mandate that may result in estimated costs of $100
million or more to the State, local, or tribal governments in the
aggregate or to the private sector.
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 July 8, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the
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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, Carbon monoxide,
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur dioxide,
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: April 17, 1996.
Allyn M. Davis,
Acting Regional Administrator.
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)(94) to read
as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
(94) Revisions to the Texas SIP addressing visible emissions
requirements were submitted by the Governor of Texas by letters dated
August 21, 1989, January 29, 1991, October 15, 1992 and August 4, 1993.
(i) Incorporation by reference.
(A) Revisions to Texas Air Control Board (TACB), Regulation I,
Section 111.111, ``Requirements for Specified Sources;'' Subsection
111.111(a) (first paragraph) under ``Visible Emissions;'' Subsections
111.111(a)(1) (first paragraph), 111.111(a)(1)(A), 111.111(a)(1)(B) and
111.111(a)(1)(E) under ``Stationary Vents;'' Subsection 111.111(b)
(first paragraph) under ``Compliance Determination Exclusions;'' and
Subsections 111.113 (first paragraph), 111.113(1), 111.113(2), and
111.113(3) under ``Alternate Opacity Limitations,'' as adopted by the
TACB on June 16, 1989.
(B) TACB Board Order No. 89-03, as adopted by the TACB on June 16,
1989.
(C) Revisions to Texas Air Control Board (TACB), Regulation I,
Section 111.111, ``Requirements for Specified Sources;'' Subsections
111.111(a)(4)(A) and 111.111(a)(4)(B)(i) under ``Railroad Locomotives
or Ships;'' Subsections 111.111(a)(5)(A) and 111.111(a)(5)(B)(i) under
``Structures;'' and Subsections 111.111(a)(6)(A) and
111.111(a)(6)(B)(i) under ``Other Sources,'' as adopted by the TACB on
October 12, 1990.
(D) TACB Board Order No. 90-12, as adopted by the TACB on October
12, 1990.
(E) Revisions to Texas Air Control Board (TACB), Regulation I,
Section 111.111, ``Requirements for Specified Sources;'' Subsections
111.111(a)(1)(C), 111.111(a)(1)(D), 111.111(a)(1)(F) (first paragraph),
111.111(a)(1)(F)(i), 111.111(a)(1)(F)(ii), 111.111(a)(1)(F)(iii),
111.111(a)(1)(F)(iv), and 111.111(a)(1)(G) under ``Stationary Vents;''
Subsections 111.111(a)(2) (first paragraph), 111.111(a)(2)(A),
111.111(a)(2)(B), and 111.111(a)(2)(C) under ``Sources Requiring
Continuous Emissions Monitoring;'' Subsection 111.111(a)(3) (first
paragraph) under ``Exemptions from Continuous Emissions Monitoring
Requirements;'' Subsection 111.111(a)(4), ``Gas Flares,'' title only;
Subsection 111.111(a)(5) (first paragraph) under ``Motor Vehicles;''
Subsections 111.111(a)(6)(A), 111.111(a)(6)(B) (first paragraph),
111.111(a)(6)(B)(i) and 111.111(a)(6)(B)(ii) under ``Railroad
Locomotives or Ships'' (Important note, the language for
111.111(a)(6)(A) and 111.111(a)(6)(B)(i) was formerly adopted as
111.111(a)(4)(A) and 111.111(a)(4)(B)(i) on October 12, 1990);
Subsections 111.111(a)(7)(A), 111.111(a)(7)(B) (first paragraph),
111.111(a)(7)(B)(i) and 111.111(a)(7)(B)(ii) under ``Structures''
(Important note, the language for 111.111(a)(7)(A) and
111.111(a)(7)(B)(i) was formerly adopted as 111.111(a)(5)(A) and
111.111(a)(5)(B)(i) on October 12, 1990); and Subsections
111.111(a)(8)(A), 111.111(a)(8)(B) (first paragraph),
111.111(a)(8)(B)(i) and 111.111(a)(8)(B)(ii) under ``Other Sources''
(Important note, the language for 111.111(a)(8)(A) and
111.111(a)(8)(B)(i) was formerly adopted as 111.111(a)(6)(A) and
111.111(a)(6)(B)(i) on October 12, 1990), as adopted by the TACB on
September 18, 1992.
(F) TACB Board Order No. 92-19, as adopted by the TACB on September
18, 1992.
(G) Revisions to Texas Air Control Board (TACB), Regulation I,
Section 111.111, ``Requirements for Specified Sources;'' Subsections
111.111(a)(4)(A) (first paragraph), 111.111(a)(4)(A)(i),
111.111(a)(4)(A)(ii), and 111.111(a)(4)(B) under ``Gas Flares,'' as
adopted by the TACB on June 18, 1993.
(H) TACB Board Order No. 93-06, as adopted by the TACB on June 18,
1993.
(ii) Additional material.
(A) TACB certification letter dated July 27, 1989, and signed by
Allen Eli Bell, Executive Director, TACB.
(B) TACB certification letter dated January 9, 1991, and signed by
Steve Spaw, Executive Director, TACB.
(C) TACB certification letter dated October 1, 1992, and signed by
William Campbell, Executive Director, TACB.
(D) TACB certification letter dated July 13, 1993, and signed by
William Campbell, Executive Director, TACB.
[FR Doc. 96-11399 Filed 5-7-96; 8:45 am]
BILLING CODE 6560-50-P