[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Rules and Regulations]
[Pages 4296-4298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1912]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-71-1-7311a; FRL-6222-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Multiple Air Contaminant Sources or Properties

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves the State Implementation Plan (SIP) 
revision to 30 TAC Chapter 101, Section 101.2(b) concerning Multiple 
Air Contaminant Sources. The SIP revision was submitted by the Governor 
to EPA on January 10, 1996. The revision to the rule eliminates the 
50,000 population limitation and is now applicable statewide to all 
counties regardless of population. The revision also limits the use of 
the provision to a property under the control of a single entity which 
has been or will be divided and placed under the control of separate 
entities, creating a new property line configuration for properties 
operated, or intended to be operated, as an integrated plant or plants 
where individual facilities are owned by separate entities, but all 
facilities are under the control of a single entity. The approval of 
these Texas SIP revisions make the revisions federally enforceable.

DATES: This rule is effective on March 29, 1999 without further notice, 
unless EPA receives adverse comment by March 1, 1999. If we receive 
such comment, we will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 6 
Office listed below. Copies of the documents relevant to this action 
are available for public inspection during normal business hours at the 
following locations. Interested persons 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), Multimedia Planning and Permitting Division, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733.
    Texas Natural Resource Conservation Commission (TNRCC), Office of 
Air Quality, 12100 Park Circle, Austin, Texas 78753.
    Documents which are incorporated by reference are available for 
public inspection at the Air and Radiation Docket and Information 
Center, Environmental Protection Agency, 401 M Street, SW.,Washington, 
DC 20460.

FOR FURTHER INFORMATION CONTACT: Mr. Ken Boyce, Air Planning Section 
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202, telephone: (214) 665-7259.

SUPPLEMENTARY INFORMATION:

I. Background

    The original 1967 regulation regarding multiple air contaminant 
sources allowed two or more property holders in an area to petition to 
have their properties designated as a single entity for the purpose of 
controlling air emissions. The rule applies to properties which are 
contiguous except for intersecting roads, railroads, rights-of-way, 
canals, and watercourses which are considered a part of the area for 
purposes of this provision. The rule required that the petition 
describe the manner in which the combined emissions will be 
administered and it shall name the responsible party or parties. In 
1972, the regulation was limited in applicability to counties with a 
population less than 50,000 as determined by the most recent census.
    The amendment to the rule eliminates the 50,000 population 
limitation and it limits the use of the provision to properties under 
the control of a single entity. The proposal would require the parties 
dividing ownership to establish which of them is responsible for 
emissions related impacts. Also, the definition of an eligible facility 
is further narrowed to exclude property previously divided by a canal, 
bayou, waterway, or public right-of-way.

II. Analysis of State Submission

    The EPA had no adverse comments regarding the proposed rule change, 
provided that each petition be accompanied by a statement indicating 
ownership, control, and clarified responsibility. In its response to 
comments, Texas agreed that the petition would clearly indicate 
ownership, control, and responsibility.

III. Final Action

    The EPA is approving the revisions to the Texas SIP regarding 
Multiple Air Contaminant Sources or Properties. The EPA is publishing 
this rule without prior proposal because the Agency views this as a 
noncontroversial amendment and anticipates no adverse comments. 
However, the proposed section of this Federal Register publication, EPA 
is publishing a separate document that will serve as the proposal to 
approve the SIP revision should relevant adverse comments be filed. 
This rule will be effective on March 29, 1999 unless EPA receives 
adverse comment by March 1, 1999. If adverse or critical comments are 
received, EPA will publish a timely withdrawal of the direct final rule 
in the Federal Register and inform the public that the rule will not 
take effect.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent action that will withdraw 
the final action. All public comments received will be addressed in a 
subsequent final rule based on the 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 March 29, 1999 and no further action will be taken on 
the proposed rule.
    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.

IV. Administrative Requirements

A. Executive Orders (E.O.) 12866 and 13045

    The Office of Management and Budget has exempted this regulatory 
action from review under Executive Order E.O. 12866, entitled 
``Regulatory Planning Review.''

B. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds

[[Page 4297]]

necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    This rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 3(b) of E.O. 13084 
do not apply to this rule.

C. Executive Order 13045

    Protection of Children From Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Act do not create any new 
requirements but simply approve requirements that the State is already 
imposing. Therefore, because the Federal SIP approval does not create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Act, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The Act 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

F. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated annual costs to State, 
local, or tribal governments in the aggregate; or to private sector, of 
$100 million or more. Under Section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    The EPA has determined that the approval action promulgated does 
not include a Federal mandate that may result in estimated annual costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector. This Federal action 
approves pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 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. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 29, 1999. 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, Incorporation by reference, Intergovernmental relations,

[[Page 4298]]

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and record 
keeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 18, 1998.
Jerry Clifford,
Acting Regional Administrator, Region 6.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

    2. Section 52.2270 is amended by adding paragraph (c)(112) to read 
as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * *
    (112) Revision to the Texas State Implementation Plan submitted by 
the Governor on January 10, 1996.
    (i) Incorporation by reference.
    (A) Texas Natural Resource Conservation Commission (TNRCC) General 
Rules (30 TAC Chapter 101), Section 101.2(b), adopted by TNRCC on 
December 13, 1995, effective January 8, 1996.
    (B) TNRCC Docket No. 95-0849-RUL issued December 13, 1995, for 
adoption of amendments to 30 TAC Chapter 101, Section 101.2(b), 
regarding Multiple Air Contaminant Sources or Properties and revision 
to the SIP.
    (ii) Additional materials.
    A letter from the Governor of Texas dated January 10, 1996, 
submitting revisions to 30 TAC Chapter 101, Section 101.2(b), for 
approval as a revision to the SIP.

[FR Doc. 99-1912 Filed 1-27-99; 8:45 am]
BILLING CODE 6560-50-P