[Federal Register Volume 68, Number 189 (Tuesday, September 30, 2003)]
[Rules and Regulations]
[Pages 56176-56180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24553]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-155-1-7591a; FRL-7564-5]


Approval and Promulgation of Implementation Plans; Texas; 
Revisions to Regulations for Control of Air Pollution by Permits for 
New Construction or Modification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action to approve revisions to 
the Texas State Implementation Plan (SIP). This includes revisions that 
the Texas Commission on Environmental Quality (TCEQ) submitted to EPA 
on January 3, 2003, to require that equipment associated with a new or 
relocated concrete crushing facility be located or operated at least 
440 yards from any building used as a single or multi-family residence, 
school, or place of worship. This action is being taken under section 
110 of the Federal Clean Air Act (the Act, or CAA).

DATES: This direct final rule will be effective December 1, 2003 
without further notice, unless EPA receives adverse comments by October 
30, 2003. If adverse comments are received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Guy Donaldson, Acting Chief, Air Permits Section (6PD-R), at the EPA 
Region 6 Office listed below. Electronic comments should be sent to 
either [email protected] or at http://www.regulations.gov, which 
is an alternate method for submitting electronic comments to EPA. To 
submit comments, please follow the detailed instructions described in 
the General Information part of this document. Copies of the Technical 
Support Document (TSD) and other documents relevant to this action are 
available for public inspection during official 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, 1445 Ross Avenue, Dallas, Texas 
75202-2733.
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits 
Section, Environmental Protection Agency, 1445 Ross Avenue, Dallas, 
Texas 75202-2733, at (214) 665-7212, or [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' means EPA.

Table of Contents

I. What Is Being Addressed in this Document?
II. Have the Requirements for Approval of a SIP Revision Been Met?
III. What Final Action is EPA Taking?
IV. General Information
V. Statutory and Executive Order Reviews

I. What Is Being Addressed in This Document?

    In today's action we are taking direct final action to approve 
revisions to Title 30 of the Texas Administrative Code (30 TAC) Section 
116.112--Distance Limitations into the Texas SIP. The TCEQ adopted 
these revisions on December 18, 2002, and submitted the revisions to us 
for approval as a revision to the SIP on January 3, 2003.
    Section 116.112 currently establishes distance limitations for lead 
smelters in Section 116.112(1) and distance limitations for hazardous 
waste permits in Section 116.112(2). The existing distance limitations 
were approved September 18, 2002 (67 FR 58607).
    On December 18, 2002, TCEQ added a new paragraph (3) to Section 
116.112, to implement House Bill (HB) 2912, Section 5.07, 77th Texas 
State Legislature, 2001. HB 2912, Section 5.07 amended the Texas Health 
and Safety Code to add a new Section 382.065, which requires the TCEQ, 
by rule, to restrict the location or operation of new and relocated 
concrete crushing facilities. Paragraph (3) requires all equipment 
associated with a concrete crushing facility to be located or operated 
at least 440 yards from any building used as a single or multi-family 
residence, school, or place of worship. The distance limitation does 
not apply to existing concrete crushing facilities which are authorized 
and actually located or operating at the site as of September 1, 2001. 
An existing facility does not include a concrete crushing facility 
authorized but not actually located or operating at the site as of 
September 1, 2001.

II. Have the Requirements for Approval of a SIP Revision Been Met?

    The restriction on location and operation of new or relocated 
concrete crushing plants provides additional protection for persons 
occupying any building used as a single or multi-family

[[Page 56177]]

residence, school, or place of worship. This restriction strengthens 
the existing SIP by providing additional assurance that occupants in 
such buildings will not be adversely affected by exposure to the air 
contaminants emitted from concrete crushing facilities. This provision, 
together with the existing SIP-approved provisions of Section 
116.111(2)(A)(i), will ensure better protection of public health and 
welfare. This meets the requirement in 40 CFR 51.160(a) that each plan 
include legally enforceable procedures to determine whether the 
construction or modification of a facility, building, structure, or 
installation, or combination of these will result in (1) a violation of 
applicable portions of the control strategy; or (2) interference with 
attainment or maintenance of a national standard in the state in which 
the proposed source (or modification) is located or in a neighboring 
state. Compliance with this distance requirement to locate a concrete 
crushing plant at least 440 yards from any building used as a single or 
multi-family residence, school, or place of worship, will help ensure 
that the requirements of 40 CFR 51.160 are met.
    The revision also meets 40 CFR 51.160(e) by identifying a type of 
facility that will be subject to review under 40 CFR 51.160(a). In this 
case, Texas has identified concrete crushing facilities and specified a 
distance requirement for such facilities.
    This distance limitation does not apply to an existing concrete 
crushing facility which was authorized and actually located or 
operating at a site as of September 1, 2001. This provision allows an 
existing concrete crushing facility to continue operating at the site 
and to change its existing permit at such a site without being required 
to meet the distance limitation that otherwise applies to new and 
relocated facilities. If an existing facility were to relocate to 
another location after September 1, 2001, then the facility must comply 
with the distance limitation in Section 116.112(3).
    As proposed by TCEQ on September 27, 2002, the distance limitations 
in Section 116.112(3) would have applied to all equipment and 
stockpiles associated with a concrete crushing facility. In response to 
public comments on the proposed rule, the TCEQ changed the rule to 
remove the references to stockpiles. This change was based upon TCEQ's 
determination that a stockpile associated with a concrete crushing 
facility is not subject to House Bill (HB) 2912, Section 5.07, the 
legislation that required TCEQ to adopt this distance limitation.
    The exclusion from the distance limitation in Section 116.112(3) to 
an existing concrete crushing facility authorized and actually located 
or operating at a site as of September 1, 2001, and to stockpiles 
associated with a concrete crushing facility does not affect our 
ability to approve the distance limitations in Section 116.112(3). Such 
facilities must continue to meet the existing SIP-approved requirements 
in Section 116.111(2)(A)(i), which require sources subject to new 
source permitting in Texas to protect public health and welfare. This 
meets the requirements of 40 CFR 51.160(a) by ensuring that emissions 
from such facilities will not interfere with the attainment or 
maintenance of a national standard. Such facilities are also subject to 
the current SIP-approved requirements of Section 116.111(2)(A)(ii) 
which provides that when TCEQ issues a permit for construction or 
modification of any facility within 3,000 feet of an elementary, junior 
high/middle, or senior high school, the TCEQ shall consider any adverse 
short-term or long-term side effects that an air contaminant or 
nuisance odor from the facility may have on the individuals attending 
the schools. This ensures protection of individuals in such schools 
from adverse effects of emissions of air contaminants from such 
facilities.
    The Technical Support Document, which is part of the record for 
this action, contains more detailed information on how the revision 
meets the requirements of the Act, including Section 110 and 
implementing regulations.

III. What Final Action Is EPA Taking?

    We are approving as a revision to the Texas SIP revisions of 30 TAC 
Section 116.112--Distance Limitations, which Texas submitted on January 
3, 2003. We are processing this action as a direct final action because 
it adds noncontroversial regulations to the SIP. We do not anticipate 
any relevant adverse comments. However, we are today publishing in the 
``Proposed Rules'' section of today's Federal Register a separate 
document that will serve as the proposal to approve the SIP revision 
should adverse comments be filed. This rule will become effective on 
December 1, 2003 without further notice unless we receive adverse 
comment by October 30, 2003. If we receive such comments, we will 
publish a document withdrawing the direct final rule in the Federal 
Register and 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. Parties interested in commenting must do so at this time. 
If no such comments are received, the public is advised that this rule 
will be effective on December 1, 2003. Please note that if we receive 
adverse comment on a part of this rule and if the part can be severed 
from the remainder of the rule, we may adopt as final those parts of 
the rule that are not subject to an adverse comment.

IV. General Information

A. What Is the Public Rulemaking File?

    The EPA is committed to ensuring public access to the information 
used to inform the public of the Agency's decisions regarding the 
environment and human health and to ensuring that the public has an 
opportunity to participate in the Agency's decision-making process. The 
official public rulemaking file consists of the documents specifically 
referenced in a particular agency action, any public comments received, 
and other information related to the action. The public rulemaking file 
does not include Confidential Business Information (CBI) or other 
information for which disclosure is restricted by statute, although 
such information is a part of the Agency's official administrative 
record for the action.

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

    1. An official public rulemaking file is available for inspection 
at the Regional Office. The Regional Office has established an official 
public rulemaking file for this action under Identification Number (ID 
No.) TX-155-1-7591. The public rulemaking file is available for viewing 
at the Air Permits Section (6PD-R), Environmental Protection Agency, 
1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Contact the 
person listed in the ``For Further Information Contact'' section to 
schedule your inspection. If possible, schedule the appointment two 
working days in advance of your visit. Official hours of business for 
the Regional Office are Monday through Friday, 8:30 a.m. to 4 p.m. 
excluding federal holidays. Copies of any State submittals and EPA's 
technical support document are also available for public inspection at 
the State Air Agency during official business by appointment.
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.
    2. You may access this Federal Register document electronically

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through the Regulations.gov Web site located at http://www.regulations.gov. The Regulations.gov Web site is the central online 
rulemaking portal of the United States government and is a public 
service to increase participation in the government's regulatory 
activities by offering a central point for submitting comments on 
regulations.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, through hand 
delivery/courier or by facsimile. Instructions for submitting comments 
by each method are discussed below. To ensure proper receipt by EPA, 
identify the appropriate ID No. 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. If you wish to submit CBI or information 
that is otherwise protected by statute, please follow the instructions 
in Section D below.
    1. Electronically. To submit comments electronically (via e-mail, 
Regulations.gov, or on disk or CD ROM), 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 comments. 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 public rulemaking 
file. 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. E-mail. Comments may be submitted by electronic mail (e-mail) to 
Mr. Stanley M. Spruiell at [email protected], Attention ``Public 
comment on ID No. TX-155-1-7591''. In contrast to the Regulations.gov 
Web site, EPA's e-mail system is not an ``anonymous'' system. If you 
send an e-mail comment directly to EPA, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the official public rulemaking file.
    ii. Regulations.gov. Comments may be submitted electronically at 
the Regulations.gov Web site, the central online rulemaking portal of 
the United States government. Every effort is made to ensure that the 
Web site includes all rule and proposed rule notices that are currently 
open for public comment. You may access the Regulations.gov Web site at 
http://www.regulations.gov. Select ``Environmental Protection Agency'' 
at the top of the page and click on the ``Go'' button. The list of 
current EPA actions available for comment will be displayed. Select the 
appropriate action and follow the online instructions for submitting 
comments. Unlike EPA's e-mail system, the Regulations.gov Web site is 
an ``anonymous'' system, which means that any personal information, e-
mail address, or other contact information will not be collected unless 
it is provided in the text of the comment. See the Privacy Notice at 
the Regulations.gov Web site for further information. Please be advised 
that EPA cannot contact you for any necessary clarification unless your 
contact information is included in the body of comments submitted 
through the Regulations.gov Web site.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to: Mr. Guy Donaldson, Acting Chief, Air Permits Section 
(6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. Please include the text ``Public comment on 
ID No. TX-155-1-7591'' on the disk or CD ROM. These electronic 
submissions will be accepted in WordPerfect, Word, or ASCII file 
format. You should avoid the use of special characters and any form of 
encryption.
    2. By Mail. Send your comments to: Mr. Guy Donaldson, Acting Chief, 
Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733. Please include the text 
``Public comment on ID No. TX-155-1-7591'' in the subject line of the 
first page of your comments.
    3. By Hand Delivery or Courier. Deliver your written comments or 
comments on a disk or CD ROM to: Mr. Guy Donaldson, Acting Chief, Air 
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, Attention ``Public comment 
on ID No. TX-155-1-7591.'' Such deliveries are only accepted during 
official hours of business, which are Monday through Friday, 8:30 a.m. 
to 4 p.m., excluding federal holidays.
    4. By Facsimile. Fax your comments to: (214) 665-7263, Attention 
``Public comment on ID No. TX-155-1-7591.''

D. How Should I Submit CBI to the Agency?

    You may assert a business confidentiality claim covering CBI 
information included in comments submitted by mail or hand delivery in 
either paper or electronic format. CBI should not be submitted via e-
mail or at the Regulations.gov Web site. Clearly mark any part or all 
of the information submitted which is claimed as CBI at the time the 
comment is submitted to EPA. CBI should be submitted separately, if 
possible, to facilitate handling by EPA. Submit one complete version of 
the comment that includes the properly labeled CBI for EPA's official 
administrative record and one copy that does not contain the CBI to be 
included in the public rulemaking file. If you submit CBI on a disk or 
CD ROM, mark the outside of the disk or the CD ROM that it contains CBI 
and then identify the CBI within the disk or CD ROM. Also submit a non-
CBI version if possible. Information which is properly labeled as CBI 
and submitted by mail or hand delivery will be disclosed only in 
accordance with procedures set forth in 40 CFR Part 2. For comments 
submitted by EPA's e-mail system or through the Regulations.gov Web 
site, no CBI claim may be asserted. Do not submit CBI to the 
Regulations.gov Web site or via EPA's e-mail system. Any claim of CBI 
will be waived for comments received through the Regulations.gov Web 
site or EPA's e-mail system. For further advice on submitting CBI to 
the Agency, contact the person listed in the For Further Information 
Contact section of this notice.

E. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.

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    8. To ensure proper receipt by EPA, identify the appropriate ID No. 
in the subject line on the first page of your response. It would also 
be helpful if you provided the name, date, and Federal Register 
citation related to your comments.

V. 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), because it 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. section 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. section 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 December 1, 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, Carbon Monoxide, 
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides, Volatile organic compounds.

    Dated: September 15, 2003.
Lawrence E. Starfield,
Deputy Regional Administrator, Region 6.

0
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

0
2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended under Chapter 116, Subchapter B, Division 1, 
by revising the existing entry for Section 116.112 to read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
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                                                        State approval/
          State citation              Title/Subject     Submittal date   EPA approval date       Explanation
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                                                 * * * * * * *
          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
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                                                  * * * * * * *
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                                     Subchapter B--New Source Review Permits
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                                         Division 1--Permit Application
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                                                  * * * * * * *
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Section 116.112..................  Distance                   12/18/02  September 30, 2003.  ...................
                                    Limitations.
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[FR Doc. 03-24553 Filed 9-29-03; 8:45 am]
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