[Federal Register Volume 64, Number 245 (Wednesday, December 22, 1999)]
[Rules and Regulations]
[Pages 71666-71670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32858]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-115-1-7434a; FRL-6504-4]
Approval and Promulgation of Implementation Plans; Texas; Control
of Air Pollution From Volatile Organic Compounds, Miscellaneous
Industrial Sources, Cutback Asphalt
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is taking direct final action on revisions to the
Texas State Implementation Plan (SIP). These revisions concern Control
of Air Pollution from Volatile Organic Compounds (VOC), Miscellaneous
Industrial Sources, specifically, asphaltic operations in the Nueces
County and the ozone nonattainment areas. The EPA is approving these
revisions to regulate emissions of VOCs in accordance with the
requirements of the Federal Clean Air Act (the Act).
DATES: This rule is effective on February 22, 2000, without further
notice, unless EPA receives adverse comment by January 21, 2000. If EPA
receives such comment, EPA 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 H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region
6 Office listed below. Copies of documents relevant to this action,
including the Technical Support Document (TSD), 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 Natural Resource Conservation Commission, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, P.E., Air Planning
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-6691.
Table of Contents
1. What action is EPA taking?
2. What is cutback asphalt?
3. Why do we regulate VOCs?
4. Where can I find EPA guidelines on cutback asphalt?
5. What are the asphalt rule changes?
6. What is a nonattainment area?
7. What is a State Implementation Plan?
8. What is the Federal approval process for a SIP?
9. What does Federal approval of a SIP mean to me?
10. What are advantages of adopting this rule?
11. What test methods will Texas use to determine compliance
with the VOC content requirements?
12. What are the Subchapter F requirements for cutback asphalt?
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means EPA.
[[Page 71667]]
1. What Action Is EPA Taking?
On August 31, 1999, the Governor of Texas submitted the Subchapter
F, ``Miscellaneous Industrial Sources,'' of Chapter 115, ``Control of
Air Pollution From Volatile Organic Compounds,'' as a revision to the
SIP. This rule making will specifically approve revisions to sections
115.512 concerning Control Requirements, 115.513 concerning Alternate
Control Requirements, 115.515 concerning Testing Requirements, and
115.516 concerning Recordkeeping Requirements. Also, we are approving a
new section 115.510 concerning definitions of ``cutback asphalt,''
``conventional cutback asphalt,'' ``exempt cutback asphalt,'' and
``asphalt emulsion.'' In this document we are approving revisions to
the Texas SIP concerning control of VOC emissions from asphaltic
operations in Nueces County and ozone nonattainment areas. The County
of Nueces is not classified as a nonattainment area for ozone. The
ozone nonattainment areas include the Houston/Galveston (H/G),
Beaumont/Port Arthur (B/PA), Dallas Fort Worth (DFW), and El Paso (EP).
For more information on the SIP revision and EPA's evaluation, please
refer to our TSD dated October 1999.
In the ``Final Action'' section of this document we state that we
are publishing this rule without prior proposal and EPA is planning to
approve this action without further notice.
2. What Is Cutback Asphalt?
If you liquify paving asphalt (asphaltic cement) with petroleum
distillates, you will have cutback asphalt (liquified asphalt). Cutback
asphalt contains a significant amount of light petroleum solvents such
as kerosene, diesel, or naphtha. These solvents or diluents are added
to the asphalt either at the refinery or the asphalt plant. As a
result, cutback asphalt can be a significant source of VOCs.
3. Why Do We Regulate VOCs?
Oxygen in the atmosphere reacts with VOCs and Oxides of Nitrogen to
form ozone, a key component of urban smog. Inhaling even low levels of
ozone can trigger a variety of health problems including chest pains,
coughing, nausea, throat irritation, and congestion. It also can worsen
bronchitis and asthma. Exposure to ozone can also reduce lung capacity
in healthy adults.
4. Where Can I Find EPA Guidelines on Cutback Asphalt?
You can find our guidelines on cutback asphalt in the document
number EPA-450/2-77-037--``Control of Volatile Organic Compounds from
Use of Cutback Asphalt.''
5. What Are the Asphalt Rule Changes?
The intended purpose of this rule is to reduce VOC emissions.
Specifically, this rule revision applies to sources located or
operating in the Nueces county, Texas. The county of Nueces is
classified as an attainment area for ozone. This rule will limit the
VOC volume on cutback use in the Nueces county from 8 to 7 percent.
This revision will make the volume limitation for cutback use in the
Nueces county more consistent with the volume limitation for cutback
use in the ozone nonattainment areas.
This rule will replace the term ``emulsified asphalt'' with the
term ``alternative asphalt'' for sources located or operating in both
the DFW, EP, B/PA, and H/G ozone nonattainment areas and the Nueces
county. See section 115.510.
Control requirements in section 115.512 for the DFW, EP, B/PA, and
H/G ozone nonattainment areas remain the same as the control
requirements in the existing federally approved SIP for Texas. The only
change to the control requirements in section 115.512 is lowering of
the volume limitation for cutback use in the Nueces county.
If you are in the Nueces county or any of the above-mentioned
nonattainment areas, you should refer to the rule to determine if and
how this rule will affect you.
For detailed evaluation of the asphalt rule changes, please see
pages 2 and 3 of our TSD dated October 1999.
6. What Is a Nonattainment Area?
A nonattainment area is a geographic area in which the level of a
criteria air pollutant is higher than the level allowed by Federal
standards. A single geographic area may have acceptable levels of one
criteria air pollutant but unacceptable levels of one or more other
criteria air pollutants; thus, a geographic area can be attainment for
one criteria pollutant and nonattainment for another criteria pollutant
at the same time. It has been estimated that 60 percent of Americans
live in nonattainment areas. The H/G, DFW, EP, and B/PA are
nonattainment areas for ozone.
7. What Is a State Implementation Plan?
Section 110 of the Act requires states to develop air pollution
regulations and control strategies to ensure that State air quality
meets the National Ambient Air Quality Standards (NAAQS) established by
the EPA. The NAAQS are established under section 109 of the Act to
protect public health, and they address six criteria pollutants. These
criteria pollutants are: carbon monoxide, nitrogen dioxide, ozone,
lead, particulate matter, and sulfur dioxide.
Each State must submit these regulations and control strategies to
us for approval and incorporation into the federally enforceable SIP.
Each State has a SIP designed to protect air quality. These SIPs can be
extensive, containing State regulations or other enforceable documents
and supporting information such as emission inventories, monitoring
networks, and modeling demonstrations.
8. What Is the Federal Approval Process for a SIP?
In order for State regulations to be incorporated into the
federally enforceable SIP, States must formally adopt the regulations
and control strategies consistent with State and Federal requirements.
This process includes a public notice, a public hearing, a public
comment period, and a formal adoption by a state-authorized rulemaking
body.
Once a State rule, regulation, or control strategy is adopted, the
State may submit the adopted provisions to us and request that these
provisions be included in the federally enforceable SIP. We must then
decide on an appropriate Federal action, provide public notice on this
action, and seek additional public comment regarding this action. If
adverse comments are received, we must address them prior to a final
action.
All State regulations and supporting information approved by us
under section 110 of the Act are incorporated into the federally
approved SIP. Records of these SIP actions are maintained in the Code
of Federal Regulations (CFR) at Title 40, part 52, entitled ``Approval
and Promulgation of Implementation Plans.'' The actual State
regulations which were approved are not reproduced in their entirety in
the CFR but are ``incorporated by reference,'' which means that we have
approved a given State regulation with a specific effective date.
9. What Does Federal Approval of a SIP Mean to Me?
Enforcement of the State regulation before and after it is
incorporated into federally approved SIP is primarily a State function.
However, once the regulation is federally approved, we and the public
may take enforcement action
[[Page 71668]]
against violators of these regulations if the State fails to do so.
10. What Are Advantages of Adopting This Rule?
Adopting this rule will have the following advantages: (1) Reduces
the VOC content of the asphalt, for Nueces county, from 8 percent of
the total annual volume to 7 percent. The total annual volume
percentage for the asphalt use is calculated over a two-year period,
(2) makes the VOC content requirement for asphalt in the Nueces county
more consistent with that of nonattainment areas, (3) allows use of
alternative asphalt mixes with equal or less VOC emissions, and (4)
offers more operational flexibility for a source to meet the market
demands.
11. What Test Methods Will Texas Use To Determine Compliance With
the VOC Content Requirements?
According to section 115.515, Texas will apply the following test
methods to determine compliance with this VOC rule: (1) American
Society of Testing and Materials (ASTM) Test Method D 244, ``Standard
Test Methods for Emulsified Asphalts, Sections 11 to 15, Residue and
Oil Distillate by Distillation,'' as published in the 1997 edition of
the Annual Book of ASTM Standards, for determining VOC content of
asphalt emulsions; or (2) ASTM Test Method D 402, ``Standard Test
Method for Distillation of Cut-Back Asphaltic Products,'' as published
in the 1997 edition of the Annual Book of ASTM Standards, for
determining the VOC content of cutback asphalt.
12. What Are the Subchapter F Requirements for Cutback Asphalt?
The following table contains a summary of the requirements in
Subchapter F for the H/G, the B/PA, the DFW, and the EP areas and the
Nueces county concerning VOC contents in cutback asphalt and asphalt
emulsion.
Table 1.--Asphaltic VOC Content Requirements and Their Corresponding
Areas in Texas
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Location Requirement Explanation
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H/G, B/PA, DFW, EP areas and VOC content 7 For paving roadways,
Nueces county. percent or less of driveways, or
total volume, parking lots.
averaged over 2-
year period.
H/G, B/PA, DFW, EP areas.... No cutback asphalt.. From April 16 to
September 15 of any
year
H/G, B/PA, DFW, EP areas and Asphalt emulsion 0.5 By weight percent.
Nueces county. percent for seal
coats.
H/G, B/PA, DFW, EP areas and 3.0 percent for chip By weight percent
Nueces county. seals when dusty or for asphaltic
dirty aggregate emulsion.
used.
H/G, B/PA, DFW, EP areas and 8.0 percent for By weight percent
Nueces county. mixing with open for asphaltic
graded aggregate emulsion.
containing less
than 1 percent of
dust or clay-like
materials.
H/G, B/PA, DFW, EP areas and 12.0 percent for by weight percent
Nueces county. mixing with dense for asphaltic
graded aggregate emulsion.
when used to
produce a mix
designed to have 10
percent or less
voids when fully
compacted.
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When more than one asphaltic VOC content requirement from the above
table applies to an asphaltic emulsion, one must use the most stringent
requirement. See section 115.512(3).
Final Action
The EPA is publishing this rule without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the ``Proposed Rules'' section of today's Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if adverse comments
are received. This rule will be effective on February 22, 2000, without
further notice unless we receive adverse comment by January 21, 2000.
If EPA receives adverse comments, we will publish a timely withdrawal
in the Federal Register 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. Any parties interested in commenting must do so
at this time.
Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Order 13132
Executive 13132, entitled ``Federalism'' (64 FR 43255, August 10,
1999) revokes and replaces E.O. 12612, ``Federalism,'' and E.O. 12875,
``Enhancing the Intergovernmental Partnership.'' Executive Order 13132
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' is defined in the E.O. to include
regulations that 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.'' Under E.O. 13132, EPA may not issue a regulation that
has federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. The EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This final rule will 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 E.O. 13132. Thus, the
requirements of section 6 of the E.O. do not apply to this rule.
C. Executive Order 13045
Executive Order 13045, entitled ``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 E.O. 12866, and (2) concerns an
[[Page 71669]]
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.
The EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This final rule is not subject to E.O. 13045
because it approves a State program.
D. Executive Order 13084
Under E.O. 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, E.O. 13084 requires EPA to
provide to the OMB, 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, E.O. 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 E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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 a 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. See
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. 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.
804(2). This rule will be effective February 22, 2000.
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 February 22, 2000. 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, Asphalt,
Intergovernmental relations, Ozone, Reporting and recordkeeping
requirements, and Volatile organic compounds.
Dated: November 19, 1999.
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 under Chapter 115, Subchapter F, by
removing the entry for section 115.512 to 115.519 and inserting in its
place individual entries for section 115.510 through section 115.519
reading as follows:
Sec. 52.2270 Identification of plan.
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(c) * * *
[[Page 71670]]
EPA Approved Regulations in the Texas SIP
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State submittal/
State citation Title/subject approval date EPA approval date Explanation
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Chapter 115 (Regulation 5)--Control of Air Pollution from Volatile Organic Compounds
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Subchapter F Miscellaneous Industrial Sources
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Cutback Asphalt
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Section 115.510................. Definitions....... August 18, 1999/ December 22, 1999 ..................
August 31, 1999. and 64 FR 71670.
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*
Section 115.512................. Control August 18, 1999/ December 22, 1999 ..................
Requirements. August 31, 1999. and Federal
Register cite.
Section 115.513................. Alternative August 18, 1999/ December 22, 1999 ..................
Control August 31, 1999. and 64 FR 71670.
Requirements.
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Section 115.515................. Testing August 18, 1999/ December 22, 1999 ..................
Requirements. August 31, 1999. and 64 FR 71670.
Section 115.516................. Recordkeeping August 18, 1999/ December 22, 1999 ..................
Requirements. August 31, 1999. and 64 FR 71670.
Section 115.517................. Exemptions........ 05/08/92.......... 03/07/95 60 FR Ref
12438. 52.2299(c)(88).
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Section 115.519................. Counties and 05/08/92.......... 03/07/95 60 FR Ref
Compliance 12438. 52.2299(c)(88).
Schedules.
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[FR Doc. 99-32858 Filed 12-21-99; 8:45 am]
BILLING CODE 6560-50-U