[Federal Register Volume 69, Number 59 (Friday, March 26, 2004)]
[Rules and Regulations]
[Pages 15681-15687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6309]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-164-1-7622; FRL-7638-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving revisions to the Texas State 
Implementation Plan (SIP). These revisions concern Control of Air 
Pollution from Nitrogen Compounds--Cement Kilns. The affected sources 
are major cement kilns that were in service before December 31, 1999. 
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). Today's action does not intend to address 
any aspect(s) of the implementation of the 8-hour ozone NAAQS. The EPA 
is approving control of emissions of NOX from cement kilns 
in accordance with the requirements of the Federal Clean Air Act (the 
Act).

DATES: This rule is effective on April 26, 2004.

ADDRESSES: Copies of the 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. Who submitted comments to us?
3. How do we respond to the submitted written comments?
4. What do these rule revisions for cement kilns that we are 
approving provide?
5. What areas in Texas will these rule revisions affect?

Statutory and Executive Order Reviews

    In this document ``we,'' ``us,'' and ``our'' refer to 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.
    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.
------------------------------------------------------------------------

    On July 30, 2003 (68 FR 44631), we published a direct final 
rulemaking action on these two submittals. In 68 FR 44631 we stated 
that if EPA receives relevant adverse comments, EPA would publish a 
timely withdrawal in the Federal Register informing the public that 
this Texas SIP revision would not take effect. The EPA received 
relevant adverse comments on the July 30, 2003 (68 FR 44631), 
rulemaking action during the public comment period.

[[Page 15682]]

    On September 15, 2003 (68 FR 53891), we published a withdrawal in 
the Federal Register stating that we will be summarizing and responding 
to comments received on this Texas SIP revision. Today, we are 
summarizing and responding to comments received on our July 30, 2003 
(68 FR 44631), Texas SIP revision.

2. Who Submitted Comments to Us?

    We received written comments on our July 30, 2003 (68 FR 44631), 
Texas SIP revision from a private citizen, Blue Skies Alliance, 
Downwinders At Risk, and Lone Star Chapter of Sierra Club (the 
Commenters).

3. How Do We Respond to the Submitted Written Comments?

    Our responses to the written comments concerning July 30, 2003 (68 
FR 44631), Texas SIP revision are as follows:
    Comment #1: The Commenters state the proposed NOX rules 
are insufficient to allow the Dallas/Fort Worth (D/FW) area to move 
effectively toward attainment.
    Response to Comment #1: The primary purpose of the proposed rule 
was to reduce emissions of NOX from this specific industrial 
sector. The State's development of this rule for cement industry was 
part of its air quality planning effort to not only achieve controls in 
the nonattainment area, but also to reduce ozone precursor emissions on 
a regional basis. Our proposed July 30, 2003 rulemaking (68 FR 44631), 
in and by itself, was not intended to serve as an attainment 
demonstration plan for the D/FW area. The controls for the cement kilns 
was one part of the larger attainment demonstration SIP which was 
adopted by the State of Texas and submitted to EPA in April 2000. Our 
action today will make the existing Texas rule for each cement kiln 
that was placed into service before December 31, 1999, in 5 Texas 
Counties of Bexar, Comal, Ellis, Hays, and McLennan, federally 
enforceable. We want to make it clear that our approval of this Texas 
SIP revision is independent of any future NOX reduction 
measures that could be required of the cement industry, if such 
reduction measures are determined necessary for attainment of the 8-
hour ozone NAAQS and are considered to be feasible and practicable.
    Comment #2: The Commenters state that a local air committee 
recommended reductions of fifty percent as opposed to the proposed 
thirty percent for NOX from cement kilns in Ellis County.
    Response to Comment #2: The proposed rule was submitted to EPA in 
accordance with section 110(a)(2) of the Act. The proposed emissions 
reduction level of at least thirty percent from the 1996 baseline level 
is in agreement with those found in our reference document 
``Alternative Control Techniques Document--NOX Emissions 
from Cement Manufacturing'' EPA-453/R-94-004 (ACT Document). The TCEQ's 
emissions level of NOX control (at minimum thirty percent 
reduction) is in agreement with the ``Federal Implementation Plans to 
Reduce Regional Transport of Ozone'' of October 21, 1998 (63 FR 56394). 
Also see our response to Comment 1 in this document.
    Comment #3: The Commenters state that Selective Catalytic Reduction 
(SCR) and Selective Non-Catalytic Reduction (SNCR) have been found to 
make reductions up to eighty percent depending on the fuel source and 
type of kiln.
    Response to Comment #3: The analysis for the approvability of this 
Texas SIP revision was evaluated against our ACT Document, and against 
the limitations and requirements of other federally approved SIPs for 
existing cement kilns. Our Technical Support Document (TSD) did not 
identify any EPA-approved SIP rules in other parts of the country that 
have mandated SCR or SNCR as a required control strategy for 
controlling NOX from existing cement kilns. We provided a 
copy of our TSD to the Commenters at their request during the public 
comment period. Our rulemaking action today will make existing Texas 
rule federally enforceable, and is consistent with EPA's past 
approvals. Our approval today is not intended to preclude additional 
control requirements being applied to the cement industry, if such 
control requirements are determined necessary for attainment of the 8-
hour ozone NAAQS and the application of such control requirements is 
determined feasible and practicable.
    Comment #4: The Commenters state that SCR/SNCR should be included 
as acceptable means of control technology for NOX 
reductions.
    Response to Comment #4: The proposed rule offers several means of 
control to a source in order to comply with the emission limitations. 
Also see our response to Comment 3 in this document. Absent 
information on or examples of SCR or SNCR cases used as a required 
technique for controlling NOX from existing cement kilns in 
any other federally approved-SIPs from the Commenters, we disagree with 
the Commenters at this time. However, should these or other similar 
technologies demonstrate success for cement manufacturing sector, EPA 
will then re-examine its RACT or ACT determinations.
    Comment #5: The Commenters state that low-NOX burner is 
an ambiguous term unless associated with a manufacturer of this type 
device or with accompanying specifications. Any facility proposing the 
use of this type device shall first provide the manufacturers statement 
describing the product, its capabilities and limitations. In cases 
where the facility proposes to build their own, that facility shall 
submit to the proper authority, their design along with evidence they 
are experienced in this field, sufficient to design and build a product 
that will achieve the required results, prior to its being approved as 
part of an emissions reduction plan.
    Response to Comment #5: Section 5.1.3 of our ACT Document states 
that low-NOX burners are designed to reduce flame 
turbulence, delay fuel/air mixing, and establish fuel-rich zones for 
initial combustion. The longer, less intense flames resulting from the 
staged combustion lower flame temperatures and consequently reduce 
thermal NOX formation. Figure 5-1 on Page 5-7 of that 
document also illustrates the schematic of a typical low-NOX 
burner. For information concerning low-NOX burners we refer 
the Commenters to section 5.1.3 of our ACT Document. The proposed 
rulemaking departs from a command and control approach and offers a 
menu of options to an affected source to comply with the emission 
limitations. The EPA does not subscribe to advocating a prescribed 
design, make, model or manufacturer as the only means of controlling 
emissions. If a source has a different or innovative method of 
controlling emissions and can successfully demonstrate that its method 
is effective in both pilot plant and large scale operations, then EPA 
sees no reason to disapprove the implementation of the source's method 
of control. Furthermore, the effectiveness of the control technology 
will be determined by continuous monitoring and through compliance 
testing.
    Comment #6: The Commenters propose to delete any reference to 
rolling average of NOX emissions. They further state that 
rolling averages allow facilities to exceed emissions during periods of 
increased production, increasing the air pollution for those days. The 
Commenters contend that by shutting down one or two days within the 
month, the facility could avoid exceeding their allowable.

[[Page 15683]]

    Response to Comment #6: We disagree. Rolling average is a commonly 
accepted averaging method in regulations governing emissions from 
cement manufacturing. The TSD for our proposal (68 FR 44631) refers to 
rules from various parts of the country that have adopted a similar 
averaging window (30-day) or language (rolling average) in their rules. 
While EPA is endorsing a 30-day rolling average as the basis for 
NOX emission specifications in section 117.265 of the rule, 
we do not approve of a 365-day rolling average or an annual average for 
NOX emission specifications in section 117.265. We consider 
annual averaging of emission specifications to be problematic for 
permitting and compliance determination purposes. Furthermore, the 
inherent continuous operational nature of a cement kiln could limit an 
operator's ability from shutting down one or two days within the month 
as suggested by the Commenters. The affected sources are required to 
emit at or below their permitted levels of emissions. Appropriate test 
methods, recordkeeping, reporting, compliance certification, and 
Continuous Emissions Monitor System (CEMS) data along with SIP rules 
constitute proper mechanisms to assure compliance with the terms and 
conditions of this regulation and air permits issued to an affected 
source. Contrary to the Commenters' contention, the rule of law does 
not allow EPA to arbitrarily shut down a business one or two days 
within the month.
    Comment #7: The Commenters state that the rule should provide that 
allowable emissions shall be based upon the actual pounds/hour, pounds/
day, tons/year and exceedances in any one-hour or day shall generate 
enforcement action.
    Response to Comment #7: We believe that the actual production level 
in conjunction with the length of operation at an affected source is 
the proper method to set an emissions limitation for cement 
manufacturing. We believe that an emission limitation of ``pound 
NOX per ton of clincker produced'' in conjunction with 
appropriate test methods, recordkeeping, reporting, compliance 
certification, and CEMS data built into air permits constitute a proper 
enforceable mechanism to assure compliance with the terms and 
conditions of this regulation and air permits issued to an affected 
source.
    Comment #8: The Commenters propose to remove reference to 
percentages of reduction when establishing compliance. Existing permits 
include a Maximum Allowable Emission Rate (MAER) table. In complying 
with this new rule for cement kilns, each facility shall be required to 
amend or modify their existing permit to reflect the actual 
NOX in pounds/day, tons/year revision in the MAER table 
which corresponds to the percent reduction required by this rule.
    Response to Comment #8: Each affected source is required to operate 
at or below its permitted levels of emissions. The proposed rule 
requires at least thirty percent reduction in NOX emissions 
when compared with the 1996 baseline inventory data. Section 117.205 
lists emission limitations for each type of kiln in a designated 
County. These requirements combined with appropriate test methods, 
recordkeeping, reporting, compliance certification, and CEMS data which 
are built into air permits constitute a proper enforceable mechanism to 
assure compliance with the terms and conditions of air permits issued 
to an affected source. The rule is intended to complement, supplement, 
and strengthen the air contaminants data in the MAER table of air 
permits, not to replace those limits. Air permit modifications or 
amendments of affected facilities are handled according to the 
applicable State's title V or New Source Review program. For above 
reasons we disagree with the Commenters.
    Comment #9: The Commenters state that all Ellis County cement kilns 
including both wet and dry process kilns should reduce their emissions 
by fifty percent, as recommended by a local committee, instead of the 
proposed thirty percent using the 1996 emissions as the baseline year. 
The Commenters state that the reduction in this rule, will not achieve 
the necessary ozone reduction required to meet the D/FW SIP deadline.
    Response to Comment #9: The proposed rule was submitted to EPA in 
accordance to section 110(a)(2) of the Act. The emissions reduction 
level of at least thirty percent from the 1996 baseline levels is in 
agreement with those found in our ACT Document. The reductions are in 
agreement with EPA's October 21, 1998, Federal Implementation Plans to 
Reduce Regional Transport of Ozone. See 63 FR 56394. As an example, the 
NOX emissions specifications of 4.0 lb NOX/ton of 
clinker produced for a long wet kiln operating in Ellis County is 
comparable to or more stringent than the NOX emissions 
specifications from similar cement kilns in many other parts of 
country. The proposed July 30, 2003 rulemaking (68 FR 44631), in and by 
itself, was not intended to serve as an attainment demonstration plan 
for the D/FW area. However, as noted previously, we want to make it 
clear that our approval of this Texas SIP revision is independent of 
any future NOX reduction measures that could be required of 
the cement industry, if such reduction measures are determined 
necessary for attainment of the 8-hour ozone NAAQS and are considered 
to be feasible and practicable.
    Comment #10: The Commenters state that in applying mid-kiln firing/
secondary combustion as a method of NOX reduction, no new 
types of chemical or chemical compounds, not previously emitted, should 
be resulted in the emission inventory.
    Response to Comment #10: 40 CFR 63, Subpart LLL--National Emission 
Standards for Hazardous Air Pollutants (NESHAP) from the Portland 
Cement Manufacturing Industry (64 FR 31925, June 14, 1999) applies to 
each new and existing portland cement plant which is a major source or 
an area source. Subpart LLL regulates emissions of Dioxin, Furan, 
Particulate Matter, Opacity, and Total Hydrocarbon Carbon. The 
NOX emissions are not regulated under Subpart LLL. Elsewhere 
the Commenters suggest imposition of post combustion control devices 
such as SCR on the affected sources. Use of SCR as a control device has 
the potential to cause emission of chemical reagents such as ammonia or 
urea in the form of particulate matter which were not previously 
emitted. All affected facilities are required to emit at or below their 
permitted levels. For these reasons we disagree with the Commenters.
    Comment #11: The Commenters state that subsection 117.265(c) should 
be removed in its entirety. No cement facility shall be exempt from 
complying with required emission reductions as stipulated in this 
section.
    Response to Comment #11: Subsection 117.265 (c) will allow a source 
to choose from a menu of options to achieve at least a thirty percent 
reduction in NOX emissions. These options range from 
complying with the specified emissions limitations, installing and 
operating a low NOX burner, mid-kiln firing, a secondary 
combustion control, or other changes to the kiln that would achieve at 
least thirty percent reduction in NOX emissions. These 
options are consistent with the type of controls in NOX 
rules for cement manufacturing in other parts of country. Our TSD for 
the 68 FR 44631 rulemaking detailed a number of federally-approved 
NOX rules for cement manufacturing. We provided the Blue 
Skies Alliance with a copy of our TSD. The EPA considers subsection

[[Page 15684]]

117.265(c) as an appropriate means of extending operational flexibility 
to a source to achieve compliance. For these reasons we disagree with 
the Commenters.
    Comment #12: The Commenters state that the rule shall remove any 
and all authority from the executive director and/or commissioners to 
exempt any kiln or facility from those required reductions regardless 
of the reason.
    Response to Comment #12: A source will need to comply with all 
applicable provisions of the SIP. The notification, recordkeeping, and 
reporting requirements in section 117.279, and the compliance schedule 
for cement kilns in section 117.524 serve as mechanisms for achieving 
and maintaining compliance with the rule. Therefore, we do not 
interpret this SIP revision as authorizing the executive director and/
or commissioners to exempt cement manufacturing sector from emissions 
reductions required under Chapter 117.
    Comment #13: The Commenters state that subsection 117.265(e) (Use 
of Emissions Credits for Compliance) should be removed in its entirety. 
Using emission credits to achieve compliance with the control of 
NOX requirements does not satisfy the overall purpose of 
this rule, that being to reduce the total NOX emissions that 
prevent conformance with the SIP. This provision only serves to allow a 
facility to manipulate their operation to avoid the cost of proper 
control technology.
    Response to Comment # 13: We disagree with the Commenters. Title 
IV--Acidic Deposition Control (Acid Rain Program) of the Act is a prime 
example of the regulatory use of emissions banking and trading for 
compliance purposes. Other federally-approved SIP revisions of Texas' 
Chapter 117 rule, affecting many other types of facilities, contain 
provisions allowing use of emissions credits for compliance. Singling 
out the cement manufacturing sector from use of emissions credits for 
compliance by deleting any provisions that would allow use of emissions 
credits for compliance would increase the bar of compliance and extend 
unfair advantage to other sectors.
    Comment #14: The Commenters state that the rule should provide 
access by citizens to the actual CEMS data for review.
    Response to Comment #14: The Act requires that emission data and 
information be open and available to the public. The State is also 
required to comply with the sections 110(a)(2)(F)(i) through (iii) of 
the Act. As applicable, the air permits issued to the affected sources 
contain special conditions for recording, reporting, and recordkeeping 
information concerning CEMS. Reports of inspection of these affected 
sources are also open and available to the public. For these reasons no 
further change to the text of proposed rule is warranted.
    Comment #15: The Commenters state that any provisions for the use 
or application of Predictive Emissions Monitoring System (PEMS) should 
be deleted.
    Response to Comment #15: A PEMS is the total equipment necessary 
for the determination of a gas concentration or emission rate using 
processor control device operating parameter measurements and a 
conversion equation, a graph, or computer program to produce results in 
units of the applicable emission limitation or standard. Historically, 
other federally-approved SIP revisions of Texas' Chapter 117 rule, 
affecting many other types of facilities, contain provisions allowing 
use of PEMS. Singling out the cement manufacturing sector from use of 
PEMS by deleting any provisions that would allow use of PEMS would 
increase the bar of compliance and extend unfair advantage to other 
sectors. Therefore, no further change to the text of proposed rule is 
warranted.
    Comment #16: The Commenters state that subsection 117.273(b)(1)(C) 
should be deleted. Performance under 40 CFR 60, Appendix F, Sections 
5.1 and 5.1.1 shall apply and deviations or exceptions shall not be 
allowed under this rule.
    Response to Comment # 16: Section 117.273 requires installation, 
calibration, maintenance, and operation of CEMS. Subsection 117.273(b) 
requires use of 40 CFR 60.13 and Appendix B, Performance Specification 
2 for NOX. Subsection 117.273(b)(1)(C) requires use of 40 
CFR 60 Appendix F Section 5.1 for quality assurance purposes. As 
applicable, the air permits issued to the affected sources contain 
special conditions for recording, reporting, and recordkeeping 
information concerning CEMS. Affected monitors will need to comply with 
all applicable monitoring requirements. Such provisions have been 
already incorporated in the proposed rule.
    Comment #17: The Commenters state that section 117.283 in its 
entirety should be deleted. The purpose of this proposed rule is the 
reduction of NOX. Manipulating numbers to achieve emission 
reductions does not satisfy such a requirement. Reductions can and 
should be achieved through adequate control technology.
    Response to Comment #17: Section 117.283 concerns the source cap. 
The proposed rule will result in an annual overall reduction of 5,913.3 
tons of NOX from affected sources. The EPA considers this 
amount to be a significant reduction in NOX emissions. We do 
not agree with the Commenters' characterization that requiring at least 
thirty percent reduction in NOX emissions as manipulating 
numbers to achieve emission reductions. With regard to adequate control 
technology we refer the Commenters to our response to Comment 
2 of this document.
    Comment #18: The Commenters state that the rule should include an 
operation requirement that all cement kilns that exceed permitted 
NOX emission rates in excess of 2.8 lbs NOX/ton 
clinker shall cease operation between March 1st and September 30th, the 
ozone season, to ease the burden of harmful ozone levels on the D/FW 
area.
    Response to Comment #18: Absent significant information 
substantiating the Commenters' position, EPA is unable to adopt a 
provision in its regulation which requires all cement kilns in Ellis 
County cease operations between March 1st and September 30th, if the 
2.8 lbs NOX/ton clinker emissions limitation has been 
exceeded. However, the State is in the process of developing a future 
revision to the D/FW ozone SIP. Consideration of impact of the cement 
plants and the potential for additional control measures will be a part 
of this regulatory process. Also see our response to Comment 1 
in this document.
    Comment #19: The Commenters state that this rule demonstrates a 
greater effort toward relieving facilities from emissions reduction 
than it does to actually reduce emissions required to satisfy 
compliance with the SIP and protect the health of citizens.
    Response to Comment #19: As stated in section 5 of our proposal (68 
FR 44631), ``currently Texas SIP contains no federally-approved 
requirements for controlling NOX emissions from cement 
kilns.'' The proposed rule will result in an annual overall reduction 
of 5,913.3 tons of NOX from affected sources in these 
Counties. The EPA considers this amount to be a significant reduction 
in NOX emissions. We do not agree with the Commenters' 
characterization that requiring at least thirty percent reduction in 
NOX emissions as an effort toward relieving facilities from 
emissions reduction.
    Comment #20: The Commenters state that the economics and financial 
condition of an industry is not the concern of the EPA or the TCEQ, 
that responsibility belongs to the Commerce Department.

[[Page 15685]]

    Response to Comment #20: All EPA and TCEQ's revisions to the SIP 
will need to comply with and adhere to applicable provisions of the 
Act. We believe that our July 30, 2003 (68 FR 44631), rulemaking action 
is in accord with the requirements of the Act and EPA's policies.
    Comment #21: A private citizen stated that in his opinion this rule 
ranks among the worst proposals offered by EPA since the exodus of 
Administrator Browner.
    Response to Comment #21: The proposed rule was submitted to EPA in 
accordance to section 110(a)(2) of the Act. The proposed emissions 
reduction level of at least thirty percent from the 1996 baseline 
levels is in agreement with those found in our ACT Document. The 
proposed reductions are in agreement with the 63 FR 56394, October 21, 
1998, the Federal Implementation Plans to Reduce Regional Transport of 
Ozone. For example, the NOX emissions specifications of 4.0 
lb NOX/ton of clinker produced for a long wet kiln operating 
in Ellis County (designated as attainment for 1-hour ozone NAAQS), is 
comparable to or more stringent than the NOX emissions 
specifications from similar cement kilns in many other parts of 
country. The proposed rule will result in an annual overall reduction 
of 5,913.3 tons of NOX from affected sources in these 
Counties. For these reasons we disagree with the commenter's 
characterization of the proposed rule.
    This concludes our responses to the written comments we received 
concerning the July 30, 2003 (68 FR 44631), Texas SIP revision.

4. What do these Rule Revisions for Cement Kilns that we are Approving 
Provide?

    These rule revisions require at least thirty percent reductions of 
NOX compared with the 1996 baseline emission inventory from 
each cement kiln that is major source in Bexar, Comal, Ellis, Hays, and 
McLennan Counties, and was placed into service before December 31, 
1999. The following 2 tables contain a summary of these SIP revisions 
for cement kilns in these 5 Texas Counties.

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


       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 ACT Document, and are comparable to or more stringent than 
emission specifications for cement kilns in a number of other federally 
approved State rules.

5. What Areas in Texas Will These Rule Revisions 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.

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

[[Page 15686]]

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. 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 May 25, 2004. 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, Cement kiln, 
Intergovernmental relations, Reporting and recordkeeping requirements, 
Volatile organic compounds.

    Dated: March 12, 2004.
Richard E. Greene,
Regional Administrator, Region 6.

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. 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
-----------------------------------
                                                         Subchapter B--Division 4--Cement Kilns
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 117.260...................  Cement Kiln            04/19/00, 03/05/03...  03/26/04 and [FR page number]
                                     Definitions.
Section 117.261...................  Applicability........  04/19/00.............  03/26/04 and [FR page number]       Also finalizes 65 FR 64914
Section 117.265...................  Emission               04/19/00, 03/05/03...  03/26/04 and [FR page number]
                                     Specifications.
Section 117.273...................  Continuous             04/19/00.............  03/26/04 and [FR page number]       Also finalizes 65 FR 64914
                                     Demonstration of
                                     Compliance.
Section 117.279...................  Notification,          04/19/00, 03/05/03...  03/26/04 and [FR page number]
                                     Recordkeeping, and
                                     Reporting
                                     Requirements.
Section 117.283...................  Source Cap...........  04/19/00, 03/05/03...  03/26/04 and [FR page number]
 
                                                                      * * * * * * *
-----------------------------------
                                                         Subchapter E--Administrative Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
-----------------------------------
Section 117.524...................  Compliance Schedule    04/19/00, 03/05/03...  03/26/04 and [FR page number]
                                     for Cement Kilns.
117.570...........................  Use of Emissions       3/05/03..............  03/26/04 and [FR page number]
                                     Credits for
                                     Compliance.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 15687]]

[FR Doc. 04-6309 Filed 3-25-04; 8:45 am]
BILLING CODE 6560-50-P