[Federal Register Volume 68, Number 146 (Wednesday, July 30, 2003)]
[Rules and Regulations]
[Pages 44631-44635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19279]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-164-1-7602a; FRL-7536-8]


Approval and Promulgation of Implementation Plans; Texas; Control 
of Emission of Oxides of Nitrogen From Cement Kilns

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

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 Nitrogen Compounds, Cement Kilns. 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). The EPA is approving emissions of Oxides of Nitrogen 
(NOX) for cement kilns in accordance with the requirements 
of the Federal Clean Air Act (the Act).

DATES: This rule is effective on September 29, 2003 without further 
notice, unless EPA receives adverse comment by August 29, 2003. 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. Electronic comments should be sent either to 
[email protected] or to http://www.regulations.gov, which is an 
alternative method for submitting electronic comments to EPA. To submit 
comments, please follow the detailed instructions described in Final 
Action part of this document. Copies of the Technical Support Document 
(TSD) and other 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 (214) 665-6691, and [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What Actions Are We Taking in This Document?
2. Why Are We Approving These SIP Revisions for Texas?
3. What Is NOX?
4. What Is a SIP?
5. What Are the Existing NOX Emissions Specifications in 
the Texas SIP?
6. What Do These Rule Revisions for Cement Kilns That We Are 
Approving Provide?
7. What Areas In Texas Will These Rules Affect?

[[Page 44632]]

8. General Information

    Throughout this document ``we,'' ``us,'' and ``our'' means 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. The 
incorporation of the re-proposal into the SIP may result in better 
compliance by the regulated community and thus more certainty that the 
emission reductions will actually occur.
    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.
------------------------------------------------------------------------

    See our TSD for additional details/information and our evaluation 
of these submittals.

2. Why Are We Approving These SIP Revisions for Texas?

    The April 30, 2000 and April 2, 2003 SIP submittals require the 
affected sources to reduce their NOX emissions from cement 
kilns by at least thirty percent from the 1996 baseline emissions 
levels. The April 30, 2000 and April 2, 2003 SIP submittals also offer 
operational flexibility to the affected sources to comply with the 
NOX emissions limitations. We are approving these revisions 
to the Texas SIP because they will contribute to attainment of the 1-
hour ozone NAAQS, and as a measure to strengthen the SIP. We are 
approving these revisions to the Texas SIP as meeting the requirements 
of the Act.

3. What Is NOX?

    Nitrogen oxides belong to the group of criteria air pollutants. 
NOX results from burning fuels, including gasoline and coal. 
Nitrogen oxides react with volatile organic compounds (VOC) to form 
ozone or smog and are also major components of acid rain.

4. What Is a SIP?

    Section 110 of the Act requires States to develop air pollution 
regulations and control strategies to ensure that State air quality 
meets the NAAQS that EPA has established. Under section 109 of the Act, 
EPA established the NAAQS to protect public health. The NAAQS 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 federally approved SIP protects air quality primarily by 
addressing air pollution at its point of origin. These SIPs can be 
extensive, containing State regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

5. What Are the Existing NOX Emissions Specifications in the 
Texas SIP?

    Currently, Texas SIP contains no federally-approved requirements 
for controlling NOX emissions from cement kilns. By 
approving the April 30, 2000 and April 2, 2003 SIP submittals we will 
be strengthening the Texas SIP compliance for enforcement purposes.

6. What Do These Rule Revisions for Cement Kilns That We Are Approving 
Provide?

    These rule revisions require at least 30% reductions of 
NOX compared with the 1996 baseline emission inventory from 
cement kilns operating in Bexar, Comal, Ellis, Hays, and McLennan 
Counties (East and Central Texas). The following two tables contain a 
summary of these SIP revisions for cement kilns in East and Central 
Texas.

       Table III.--Affected Sources, Locations, and NOX Emissions
                     Specifications for Cement Kilns
------------------------------------------------------------------------
                                                         NOX emission
             Source                     County           specification
------------------------------------------------------------------------
Long wet kiln...................  Bexar, Comal,       6.0 lb NOX/ton of
                                   Hays, McLennan.     clinker produced.
Long wet kiln...................  Ellis.............  4.0 lb NOX/ton of
                                                       clinker produced.
Long dry kiln...................  Bexar, Comal,       5.1 lb NOX/ton
                                   Hays, McLennan,     clinker of
                                   Ellis.              produced.
Preheater kiln..................  Bexar, Comal,       3.8 lb NOX/ton of
                                   Hays, McLennan,     clinker produced.
                                   Ellis.
Precalciner or preheater-         Bexar, Comal,       2.8 lb NOX/ton of
 precalciner kiln.                 Hays, McLennan,     clinker produced.
                                   Ellis.
------------------------------------------------------------------------


[[Page 44633]]


       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    May 1, 2005.
 McLennan.
------------------------------------------------------------------------

    These emissions specifications meet and are in agreement with those 
found in our reference document EPA-453/R-94-004 for cement plants and 
are comparable or more stringent than emission specifications for 
cement kilns in a number of other federally approved State rules. See 
our TSD for additional information. We are of the opinion that the 
above listed compliance dates are practicable. We are approving the 
NOX emission specifications and compliance dates for cement 
kilns as a part of the Texas 1-hour ozone SIP under part D of the Act 
because the State is relying on these NOX control measures 
to demonstrate attainment of the 1-hour ozone standard in the Dallas/
Fort Worth area. We are also approving these rules under sections 110 
and 116 of the Act because they contribute to continued maintenance of 
the standard in the eastern half of the State of Texas strengthen the 
existing Texas SIP.

7. What Areas in Texas Will These Rules 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.

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 September 29, 2003 without 
further notice unless we receive adverse comment by August 29, 2003. 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.

8. General Information

How Can I Get Copies of This Document and Other Related Information?

    A. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. The 
EPA has established an official public rulemaking file for this action 
under TX-164-1-7602. The official public file consists of the documents 
specifically referenced in this action, any public comments received, 
and other information related to this action. Although a part of the 
official docket, the public rulemaking file does not include 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. The official public rulemaking 
file is the collection of materials that is available for public 
viewing at the Air Planning Section, EPA Region 6, 1445 Ross Avenue, 
Dallas, Texas 75202. The EPA requests that, if at all possible, you 
contact the rulemaking contact listed as the Further Information 
Contact to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30 excluding 
Federal Holidays.
    B. Copies of the State submittal and EPA's Technical Support 
Document (TSD) are also available for public inspection during normal 
business hours, by appointment at the State Air Agency. TCEQ, Office of 
Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.
    C. Electronic Access. You may access this Federal Register document 
electronically through the Regulations.gov web site located at http://www.regulations.gov where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number, TX-164-1-7602, in the 
subject line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
The EPA is not required to consider these late comments.
    A. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. The EPA's policy is that 
EPA will not edit your comment, and any identifying or contact 
information provided in the body of a comment will be included as part 
of the comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. Electronic Mail (e-mail). Comments may be sent by e-mail to Mr. 
Alan Shar ([email protected]). The EPA's e-mail system is not an 
``anonymous access'' system. If you send an e-mail comment directly 
without going through Regulations.gov, EPA's e-mail system 
automatically captures your e-mail address. E-mail addresses that are 
automatically captured by EPA's e-mail system are included as part of 
the

[[Page 44634]]

comment that is placed in the official public docket, and made 
available in EPA's electronic public docket.
    ii. Regulations.gov. Your use of Regulations.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to 
Regulations.gov at http://www.regulations.gov, then select EPA at the 
top of the page and use the go button. The list of current EPA actions 
available for comment will be listed. Please follow the online 
instructions for submitting comments. The system is an ``anonymous 
access'' system, which means EPA will not know your identity, e-mail 
address, or other contact information unless you provide it in the body 
of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Section B, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word, or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    B. By Mail. Send your comments to: Mr. Thomas Diggs, Chief, Air 
Planning Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733; 
Attention: TX-164-1-7602.
    C. By Hand Delivery or Courier. Deliver your comments to: Mr. 
Thomas Diggs, Chief, Air Planning Section (6PD-L), 1445 Ross Avenue, 
Dallas, Texas 75202-2733. Such deliveries are only accepted during the 
Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30 
excluding Federal Holidays.

How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the FOR FURTHER INFORMATION CONTACT section.

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. 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. 
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 September 29, 2003. 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, Intergovernmental 
relations, Reporting and recordkeeping requirements, Volatile organic 
compounds.


[[Page 44635]]


    Dated: July 17, 2003.
Lawrence Starfield,
Acting Regional Administrator, Region 6.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
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 Sec.  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.


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                        State approval/
         State citation              Title/subject      submittal date     EPA approval date      Explanation
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
---------------------------------
                      Chapter 117 (Reg 7)--Control of Air Pollution From Nitrogen Compounds
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
Section 117.223.................  Source Cap........  04/19/00..........  03/16/01,66 FR      (b)(1) Requires
                                                                           15200.              EPA's approval.
---------------------------------
                                     Subchapter B--Division 4--Cement Kilns
----------------------------------------------------------------------------------------------------------------
Section 117.260.................  Cement Kiln         04/30/00, 04/02/03   July 30, 2003 and
                                   Definitions.                            [FR page number].
Section 117.261.................  Applicability.....  04/30/00..........  July 30, 2003 and   Also finalizes 65
                                                                           [FR page number].   FR 64914.
Section 117.265.................  Emission            04/30/00, 04/02/03  July 30, 2003 and
                                   Specifications.                         [FR page number].
Section 117.273.................  Continuous          04/30/00..........  July 30, 2003 and   Also finalizes 65
                                   Demonstration of                        [FR page number].   FR 64914
                                   Compliance.
Section 117.279.................  Notification,       04/30/00, 04/02/03  July 30, 2003 and
                                   Recordkeeping,                          [FR page number].
                                   and Reporting
                                   Requirements.
Section 117.283.................  Source Cap........  04/30/00, 04/02/03  July 30, 2003 and
                                                                           [FR page number].
                                                  * * * * * * *
---------------------------------
                                     Subchapter E--Administrative Provisions
----------------------------------------------------------------------------------------------------------------
                                                 * * * * * * *
Section 117.524.................  Compliance          04/30/00, 04/02/03  July 30, 2003 and
                                   Schedule for                            [FR page number].
                                   Cement Kilns.
                                                  * * * * * * *
Section 117.570.................  Use of Emissions    04/02/03..........  July 30, 2003 and
                                   Credits for                             [FR page number].
                                   Compliance.
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[FR Doc. 03-19279 Filed 7-29-03; 8:45 am]
BILLING CODE 6560-50-P