[Federal Register Volume 70, Number 52 (Friday, March 18, 2005)]
[Rules and Regulations]
[Pages 13108-13116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5411]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[R06-OAR-2004-TX-0004; FRL-7886-4]


National Emission Standards for Hazardous Air Pollutants; 
Delegation of Authority to Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; delegation of authority.

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

[[Page 13109]]

SUMMARY: The Texas Commission on Environmental Quality (TCEQ) has 
submitted updated regulations for receiving delegation of EPA authority 
for National Emission Standards for Hazardous Air Pollutants (NESHAPs) 
for all sources. These regulations apply to certain NESHAPs promulgated 
by EPA, as adopted by the TCEQ. The delegation of authority under this 
notice does not apply to sources located in Indian Country. EPA is 
taking direct final action to approve the delegation of certain NESHAPs 
to TCEQ.

DATES: This rule is effective on May 17, 2005 without further notice, 
unless EPA receives relevant adverse comment by April 18, 2005. 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: Submit your comments, identified by Regional Materials in 
EDocket (RME) ID No. R06-OAR-2004-TX-0004, by one of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://docket.epa.gov/rmepub/, Regional 
Materials in EDocket (RME), EPA's electronic public docket and comment 
system, is EPA's preferred method for receiving comments. Once in the 
system, select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Jeff Robinson at [email protected].
     Fax: Mr. Jeff Robinson, Air Permits Section (6PD-R), at 
fax number 214-665-7263.
     Mail: Mr. Jeff Robinson, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
     Hand or Courier Delivery: Mr. Jeff Robinson, Air Permits 
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only 
between the hours of 8 a.m. and 4 p.m. weekdays except for legal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Regional Materials in EDocket 
(RME) ID No. R06-OAR-2004-TX-0004. EPA's policy is that all comments 
received will be included in the public file without change, and may be 
made available online at http://docket.epa.gov/rmepub/, including any 
personal information provided, unless the comment includes information 
claimed to be Confidential Business Information (CBI) or other 
information the disclosure of which is restricted by statute. Do not 
submit information through Regional Material in EDocket (RME), 
regulations.gov, or e-mail if you believe that it is CBI or otherwise 
protected from disclosure. The EPA RME Web site and the federal 
regulations.gov are ``anonymous access'' systems, which means EPA will 
not know your identity or contact information unless you provide it in 
the body of your comment. If you send an e-mail comment directly to EPA 
without going through RME or regulations.gov, your e-mail address will 
be automatically captured and included as part of the comment that is 
placed in the public file and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
Regional Materials in EDocket (RME) index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in RME or in the official file which is 
available at the Air Permitting Section (6PD-R), Environmental 
Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733. The file will be made available by appointment for public 
inspection in the Region 6 FOIA Review Room between the hours of 8:30 
a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the 
person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to 
make an appointment. If possible, please make the appointment at least 
two working days in advance of your visit. There will be a 15 cent per 
page fee for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment:

Texas Commission on Environmental Quality, Office of Air Quality, 12100 
Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Jeff Robinson, U.S. EPA, Region 6, 
Multimedia Planning and Permitting Division (6PD), 1445 Ross Avenue, 
Dallas, TX 75202-2733, telephone (214) 665-6435; fax number 214-665-
7263; or electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. General Information
II. What Does This Action Do?
III. What Is The Authority for Delegation?
IV. What Criteria Must Texas' Program Meet To Be Approved?
V. How Did TCEQ Meet the Subpart E Approval Criteria?
VI. What Is Being Delegated?
VII. What Is Not Being Delegated?
VIII. How Will Applicability Determinations Under Section 112 Be 
Made?
IX. What Authority Does EPA Have?
X. What Information Must TCEQ Provide to EPA?
XI. What Is EPA's Oversight of This Delegation to TCEQ?
XII. Should Sources Submit Notices to EPA or TCEQ?
XIII. How Will Unchanged Authorities Be Delegated to TCEQ in the 
Future?
XIV. What Is The Relationship Between RCRA and the Hazardous Waste 
Combustor MACT?
XV. Final Action
XVI. Statutory and Executive Order Reviews

I. General Information

A. Tips for Preparing Your Comments

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.

[[Page 13110]]

    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

B. Submitting Confidential Business Information (CBI)

    Do not submit this information to EPA through regulations.gov or e-
mail. Clearly mark the part or all of the information that you claim to 
be CBI. For CBI information in a disk or CD ROM that you mail to EPA, 
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 claimed as CBI. In addition to one complete version of the comment 
that includes 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 public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.

II. What Does This Action Do?

    EPA is taking direct final action to approve the delegation of 
certain NESHAPs to TCEQ. With this delegation, TCEQ has the primary 
responsibility to implement and enforce the delegated standards.

III. What Is the Authority for Delegation?

    Section 112(l) of the CAA and 40 CFR part 63, Subpart E, authorizes 
EPA to delegate authority to any state or local agency which submits 
adequate regulatory procedures for implementation and enforcement of 
emission standards for hazardous air pollutants. The hazardous air 
pollutant standards are codified at 40 CFR part 63.

IV. What Criteria Must Texas' Program Meet To Be Approved?

    Section 112(l) of the CAA enables EPA to approve State air toxics 
programs or rules to operate in place of the Federal air toxics program 
or rules. 40 CFR part 63, subpart E (subpart E) governs EPA's approval 
of State rules or programs under section 112(l).
    EPA will approve an air toxics program if we find that:
    (1) The State program is ``no less stringent'' than the 
corresponding Federal program or rule;
    (2) the State has adequate authority and resources to implement the 
program;
    (3) the schedule for implementation and compliance is sufficiently 
expeditious; and
    (4) the program otherwise complies with Federal guidance.
    In order to obtain approval of its program to implement and enforce 
Federal section 112 rules as promulgated without changes (straight 
delegation), only the criteria of 40 CFR 63.91(d) must be met. 40 CFR 
63.91(d)(3) provides that interim or final Title V program approval 
will satisfy the criteria of 40 CFR 63.91(d) for part 70 sources.

V. How Did TCEQ Meet the Subpart E Approval Criteria?

    As part of its Title V submission, TCEQ stated that it intended to 
use the mechanism of incorporation by reference to adopt unchanged 
Federal section 112 into its regulations. This applied to both existing 
and future standards as they applied to part 70 sources ((60 FR 30444 
(June 7, 1995) and 61 FR 32699 (June 25, 1996)). On December 6, 2001, 
EPA promulgated final full approval of the State's operating permits 
program effective November 30, 2001 (66 FR 63318). Under 40 CFR 
63.91(d)(2), once a state has satisfied up-front approval criteria, it 
needs only to reference the previous demonstration and reaffirm that it 
still meets the criteria for any subsequent submittals. TCEQ has 
affirmed that it still meets the up-front approval criteria.
    In addition, Texas has requested delegation of a State requirement 
to adjust a section 112 rule. The approval of this adjustment is 
regulated at 40 CFR 63.92. The TCEQ has modified the General Provisions 
at 40 CFR part 63, subpart A, by promulgating different timing 
requirements at Texas Administrative Code (TAC), Title 30, Part 1, 
Chapter 113, Subchapter C, section 113.100. Public notice was given 
pursuant to the requirements of the Texas Health and Safety Code 
Annotated, section 382.017 (Vernon's 1992) and Texas Government Code 
Annotated, Subchapter B, Chapter 2001 (Vernon's 2000). The TCEQ 
(formally the Texas Natural Resource Conservation Commission) conducted 
a public hearing on April 11, 1997, to receive testimony regarding the 
revision to 30 TAC Chapter 113 which included the General Provisions at 
section 113.100. EPA believes the timing requirement adjustments do not 
result in a reduction of stringency of the part 63 emission standards. 
The TCEQ has met the criteria of 40 CFR 63.91, and the State is 
requesting EPA approval of the exceptions to the General Provisions (40 
CFR part 63, subpart A) pursuant to 40 CFR 63.92.

VI. What Is Being Delegated?

    EPA received requests from TCEQ to delegate certain NESHAP subparts 
on August 20, 1997; October 15, 1997; July 9, 1998; October 14, 1998; 
January 13, 2000, July 13, 2000, and December 2, 2004. The TCEQ 
requests delegation of certain NESHAP for all sources (both part 70 and 
non-part 70 sources). For the part 63 NESHAPs, Texas's requests 
included the NESHAPs set forth in Table 1 below.

          Table 1.--40 CFR Part 63 NESHAP for Source Categories
------------------------------------------------------------------------
                  Subpart                         Emission standard
------------------------------------------------------------------------
A.........................................  General Provisions.
F.........................................  Hazardous Organic NESHAP
                                             (HON)--Synthetic Organic
                                             Chemical Manufacturing
                                             Industry (SOCMI).
G.........................................  HON--SOCMI Process Vents,
                                             Storage Vessels, Transfer
                                             Operations and Wastewater.
H.........................................  HON--Equipment Leaks.
I.........................................  HON--Certain Processes
                                             Negotiated Equipment Leak
                                             Regulation.
J.........................................  Polyvinyl Chloride and
                                             Copolymers Production.
L.........................................  Coke Oven Batteries.
M.........................................  Perchloroethylene Dry
                                             Cleaning.
N.........................................  Chromium Electroplating.
O.........................................  Ethylene Oxide Sterilizers.
Q.........................................  Industrial Process Cooling
                                             Towers.
R.........................................  Gasoline Distribution.

[[Page 13111]]

 
S.........................................  Pulp and Paper Industry.
T.........................................  Halogenated Solvent
                                             Cleaning.
U.........................................  Polymers and Resins I.
W.........................................  Polymers and Resins II--
                                             Epoxy Resins and Non-Nylon
                                             Polyamides.
X.........................................  Secondary Lead Smelting.
Y.........................................  Marine Tank Vessel Loading.
AA........................................  Phosphoric Acid.
BB........................................  Phosphate Fertilizers.
CC........................................  Petroleum Refineries.
DD........................................  Off-Site Waste and Recovery.
EE........................................  Magnetic Tape Manufacturing.
GG........................................  Aerospace Manufacturing and
                                             Rework Facilities.
HH........................................  Oil and Natural Gas
                                             Production.
II........................................  Shipbuilding and Ship
                                             Repair.
JJ........................................  Wood Furniture
                                             Manufacturing.
KK........................................  Printing and Publishing
                                             Industry.
LL........................................  Primary Aluminum Reduction
                                             Plants.
MM........................................  Chemical Recovery Combustion
                                             Sources at Kraft, Soda,
                                             Sulfite, and Stand-Alone
                                             Semichemical Pulp Mills.
OO........................................  Tanks--Level 1.
PP........................................  Containers.
QQ........................................  Surface Impoundments.
RR........................................  Individual Drain Systems.
SS........................................  Closed Vent Systems, Control
                                             Devices, Recovery Devices
                                             and Routing to a Fuel Gas
                                             System or a Process.
TT........................................  Equipment Leaks--Level 1.
UU........................................  Equipment Leaks--Level 2
                                             Standards.
VV........................................  Oil-Water Separators and
                                             Organic-Water Separators.
WW........................................  Storage Vessels (Tanks)--
                                             Control Level 2.
XX........................................  Ethylene Manufacturing
                                             Process Units.
YY........................................  Generic Maximum Achievable
                                             Control Technology
                                             Standards.
CCC.......................................  Steel Pickling--HCl Process
                                             Facilities and Hydrochloric
                                             Acid Regeneration.
DDD.......................................  Mineral Wool Production.
EEE.......................................  Hazardous Waste Combustors.
GGG.......................................  Pharmaceuticals Production.
HHH.......................................  Natural Gas Transmission and
                                             Storage.
III.......................................  Flexible Polyurethane Foam
                                             Production.
JJJ.......................................  Polymers and Resins, Group
                                             IV.
LLL.......................................  Portland Cement
                                             Manufacturing.
MMM.......................................  Pesticide Active Ingredient
                                             Production.
NNN.......................................  Wool Fiberglass
                                             Manufacturing.
OOO.......................................  Polymer and Resins III--
                                             Amino Resins and Phenolic
                                             Resins.
PPP.......................................  Polyether Polyols
                                             Production.
QQQ.......................................  Primary Copper Smelting.
RRR.......................................  Secondary Aluminum.
TTT.......................................  Primary Lead Smelting.
UUU.......................................  Petroleum Refineries--
                                             Catalytic Cracking,
                                             Catalytic Reforming and
                                             Sulfer Plants.
VVV.......................................  Publicly Owned Treatment
                                             Works (POTW).
XXX.......................................  Ferroalloys Production.
AAAA......................................  Municipal Solid Waste
                                             Landfills.
CCCC......................................  Nutritional Yeast Mfg.
GGGG......................................  Vegetable Oil Production--
                                             Solvent Extraction.
HHHH......................................  Wet Formed Fiberglass Mat
                                             Production.
JJJJ......................................  Paper and Other Web Coating.
NNNN......................................  Surface Coating of Large
                                             Appliances.
SSSS......................................  Surface Coating for Metal
                                             Coil.
TTTT......................................  Leather Finishing
                                             Operations.
UUUU......................................  Cellulose Production
                                             Manufacture.
VVVV......................................  Boat Manufacturing.
XXXX......................................  Rubber Tire Manufacturing.
QQQQQ.....................................  Friction Materials
                                             Manufacturing.
------------------------------------------------------------------------

VII. What Is Not Being Delegated?

    EPA cannot delegate to a State any of the Category II subpart A 
authorities set forth in 40 CFR 63.91(g)(2). These include the 
following provisions: Sec.  63.6(g), Approval of Alternative Non-
Opacity Standards; Sec.  63.6(h)(9), Approval of Alternative Opacity 
Standards; Sec.  63.7(e)(2)(ii) and (f), Approval of Major Alternatives 
to Test Methods; Sec.  63.8(f), Approval of Major Alternatives to 
Monitoring; and Sec.  63.10(f), Approval of Major Alternatives to 
Recordkeeping and Reporting. In addition, some MACT standards have 
certain provisions that cannot be delegated to the States. Therefore, 
any MACT standard that EPA is delegating to TCEQ that provides that 
certain authorities cannot be delegated are retained by EPA and not 
delegated. Furthermore, no authorities are delegated that require 
rulemaking in the Federal Register to implement, or where Federal 
overview is the only way to ensure national consistency in the

[[Page 13112]]

application of the standards or requirements of CAA section 112. 
Finally, section 112(r), the accidental release program authority, is 
not being delegated by this approval.
    All of the inquiries and requests concerning implementation and 
enforcement of the excluded standards in the State of Texas should be 
directed to the EPA Region 6 Office.
    In addition, this delegation to TCEQ to implement and enforce 
certain NESHAPs does not extend to sources or activities located in 
Indian country, as defined in 18 U.S.C. 1151. Under this definition, 
EPA treats as reservations, trust lands validly set aside for the use 
of a Tribe even if the trust lands have not been formally designated as 
a reservation. Consistent with previous federal program approvals or 
delegations, EPA will continue to implement the NESHAPs in Indian 
country because TCEQ has not submitted information to demonstrate 
authority over sources and activities located within the exterior 
boundaries of Indian reservations and other areas in Indian country.

VIII. How Will Applicability Determinations Under Section 112 Be Made?

    In approving this delegation, TCEQ will obtain concurrence from EPA 
on any matter involving the interpretation of section 112 of the CAA or 
40 CFR part 63 to the extent that implementation, administration, or 
enforcement of these sections have not been covered by EPA 
determinations or guidance.

IX. What Authority Does EPA Have?

    We retain the right, as provided by CAA section 112(l)(7), to 
enforce any applicable emission standard or requirement under section 
112. EPA also has the authority to make certain decisions under the 
General Provisions (subpart A) of part 63. We are granting TCEQ some of 
these authorities, and retaining others, as explained in sections VI 
and VII above. In addition, EPA may review and disapprove of State 
determinations and subsequently require corrections. (See 40 CFR 
63.91(g) and 65 FR 55810, 55823, September 14, 2000.)
    Furthermore, we retain any authority in an individual emission 
standard that may not be delegated according to provisions of the 
standard.\1\ Also, listed in the footnotes of the part 63 delegation 
table at the end of this rule are the authorities that cannot be 
delegated to any State or local agency which we therefore retain.
---------------------------------------------------------------------------

    \1\ EPA amended several NESHAPs to clarify the implementation 
and enforcement authorities within the standards that we may 
delegate to each State, local or tribal agency such as TCEQ. 68 FR 
37334 (June 23, 2003). A complete list of the standards is contained 
in the official file available for review at the Dallas Regional 
Office. An electronic copy of the rule may be obtained from EPA's 
Internet site, http://www.epa.gov/fedrgstr/EPA-AIR/2003/June/Day-23/a14190.pdf. EPA believes the changes make all of the standards 
consistent in defining what may not be delegated in actions such as 
the one we are taking today.
---------------------------------------------------------------------------

X. What Information Must TCEQ Provide to EPA?

    In delegating the authority to implement and enforce these rules 
and in granting a waiver of EPA notification requirements, we require 
TCEQ to input all source information into the Aerometric Information 
Retrieval System (AIRS) for both point and area sources. TCEQ must 
enter this information into the AIRS system and update the information 
by September 30 of every year. TCEQ must provide any additional 
compliance related information to EPA, Region 6, Office of Enforcement 
and Compliance Assurance within 45 days of a request under 40 CFR 
63.96(a).
    In receiving delegation for specific General Provisions 
authorities, TCEQ must submit to EPA Region 6 on a semi-annual basis, 
copies of determinations issued under these authorities. For part 63 
standards, these determinations include: applicability determinations 
(Sec.  63.1); approval/disapprovals of construction and reconstruction 
(Sec.  63.5(e) and (f)); notifications regarding the use of a 
continuous opacity monitoring system (Sec.  63.6(h)(7)(ii)); finding of 
compliance (Sec.  63.6(h)(8)); approval/disapprovals of compliance 
extensions (Sec.  63.6(i)); approvals/disapprovals of minor (Sec.  
63.7(e)(2)(i)) or intermediate (Sec.  63.7(e)(2)(ii) and (f)) 
alternative test methods; approval of shorter sampling times and 
volumes (Sec.  63.7(e)(2)(iii)); waiver of performance testing (Sec.  
63.7(e)(2)(iv) and (h)(2), (3)); approvals/disapprovals of minor or 
intermediate alternative monitoring methods (Sec.  63.8(f)); approval 
of adjustments to time periods for submitting reports (Sec.  63.9 and 
63.10); and approvals/disapprovals of minor alternatives to 
recordkeeping and reporting (Sec.  63.10(f)).
    Additionally, EPA's Emissions, Monitoring, and Analysis Division 
must receive copies of any approved intermediate changes to test 
methods or monitoring. (Please note that intermediate changes to test 
methods must be demonstrated as equivalent through the procedures set 
out in EPA method 301.) This information on approved intermediate 
changes to test methods and monitoring will be used to compile a 
database of decisions that will be accessible to State and local 
agencies and EPA Regions for reference in making future decisions. (For 
definitions of major, intermediate and minor alternative test methods 
or monitoring methods, see 40 CFR 63.90). The TCEQ should forward these 
intermediate test methods or monitoring changes via mail or facsimile 
to: Chief, Air Measurements and Quality Group, Emissions Monitoring and 
Analysis Division, Office of Air Quality Planning and Standards, 
Mailcode D205-02, Research Triangle Park, NC 27711, Facsimile telephone 
number: (919) 541-0516.

XI. What Is EPA's Oversight of This Delegation to TCEQ?

    EPA must oversee TCEQ's decisions to ensure the delegated 
authorities are being adequately implemented and enforced. We will 
integrate oversight of the delegated authorities into the existing 
mechanisms and resources for oversight currently in place. If, during 
oversight, we determine that TCEQ made decisions that decreased the 
stringency of the delegated standards, then TCEQ shall be required to 
take corrective actions and the source(s) affected by the decisions 
will be notified, as required by 40 CFR 63.91(g)(1)(ii). We will 
initiate withdrawal of the program or rule if the corrective actions 
taken are insufficient.

XII. Should Sources Submit Notices to EPA or TCEQ?

    For the NESHAPS being delegated and included in the table above, 
all of the information required pursuant to the general provisions and 
the relevant subpart of the Federal NESHAP (40 CFR part 63) should be 
submitted by sources located outside of Indian country, directly to the 
TCEQ at the following address: Texas Commission on Environmental 
Quality, Office of Permitting, Remediation and Registration, Air 
Permits Division (MC 163), P.O. Box 13087, Austin, Texas 78711-3087. 
The TCEQ is the primary point of contact with respect to delegated 
NESHAPs. Sources do not need to send a copy to EPA. EPA Region 6 waives 
the requirement that notifications and reports for delegated standards 
be submitted to EPA in addition to TCEQ in accordance with 40 CFR 
63.9(a)(4)(ii) and 63.10(a)(4)(ii). For those standards which are not 
delegated, sources must continue to submit all appropriate information 
to EPA.

[[Page 13113]]

XIII. How Will Unchanged Authorities Be Delegated to TCEQ in the 
Future?

    In the future, TCEQ will only need to send a letter of request to 
EPA, Region 6, for NESHAP regulations that TCEQ has adopted by 
reference. The letter must reference the previous up-front approval 
demonstration and reaffirm that it still meets the up-front approval 
criteria. We will respond in writing to the request stating that the 
request for delegation is either granted or denied. If a request is 
approved, the effective date of the delegation will be the date of our 
response letter. A Federal Register will be published to inform the 
public and affected sources of the delegation, indicate where source 
notifications and reports should be sent, and to amend the relevant 
portions of the Code of Federal Regulations showing which NESHAP 
standards have been delegated to TCEQ.

XIV. What Is The Relationship Between RCRA And The Hazardous Waste 
Combustor MACT?

    As part of today's rule, we are delegating, under the CAA, 
implementation and enforcement authority for the Hazardous Waste 
Combustor (HWC) MACT (subpart EEE) to TCEQ. Many of the sources subject 
to the HWC MACT are also subject to the RCRA permitting requirements. 
We expect air emissions and related operating requirements found in the 
HWC MACT will be included in part 70 permits issued by TCEQ. However, 
RCRA permits will still be required for all other aspects of the 
combustion unit and the facility that are governed by RCRA (e.g., 
corrective action, general facility standards, other combustor-specific 
concerns such as materials handling, risk-based emissions limits and 
operating requirements, as appropriate and other hazardous waste 
management units).\2\ See the HWC MACT rule preamble discussion (64 FR 
52828, 52839-52843 (September 30, 1999)), and the RCRA Site-Specific 
Risk Assessment Policy for HWC Facilities dated June 2000 for more 
information on the interrelationship of the MACT rule with the RCRA 
Omnibus provision and site specific risk assessments.
---------------------------------------------------------------------------

    \2\ EPA promulgated the HWC MACT (40 CFR part 63, subpart EEE) 
under the joint authority of the CAA and RCRA. Before this rule went 
into effect, the air emissions from these sources were primarily 
regulated under the authority of RCRA. See 40 CFR parts 264, 265, 
266, and 270. With the release of HWC MACT, the air emissions are 
now regulated under both CAA and RCRA. Even though both statutes 
give EPA the authority to regulate air emissions, we determined that 
having the emissions standards and permitting requirements in both 
sets of implementing regulations would be duplicative. For this 
reason, using the authority provided by section 1006(b) of RCRA, EPA 
deferred the RCRA requirements for the HWC emission controls to the 
CAA requirements of 40 CFR part 63, subpart EEE. After a facility 
has demonstrated compliance with the HWC MACT, the RCRA standards 
for air emissions from these units will no longer apply, with the 
exception of section 3005(c)(3) of RCRA, which requires that each 
RCRA permit contain the terms and conditions necessary to protect 
human health and the environment. Under this provision of RCRA, if a 
regulatory authority determines that more stringent conditions than 
the HWC MACT are necessary to protect human health and the 
environment for a particular facility, then that regulatory 
authority may impose those conditions in the facility's RCRA permit.
---------------------------------------------------------------------------

XV. Final Action

    The public was provided the opportunity to comment on the proposed 
approval of the program and mechanism for delegation of section 112 
standards, as they apply to part 70 sources, on June 7, 1995, for the 
proposed interim approval of TCEQ's title V operating permits program; 
and on October 11, 2001, for the proposed final approval of TCEQ's 
title V operating permits program. In EPA's final full approval of 
Texas' Operating Permits Program on December 6, 2001, (66 FR 63318), 
the EPA discussed the public comments on the proposed final delegation 
of the title V operating permits program. In today's action, the public 
is given the opportunity to comment on the approval of TCEQ's request 
for delegation of authority to implement and enforce certain section 
112 standards for all sources (both part 70 and non-part 70 sources) 
which have been adopted by reference into Texas' state regulations. 
However, the Agency views the approval of these requests as a 
noncontroversial action and anticipates no adverse comments. Therefore, 
EPA is publishing this rule without prior proposal. However, in the 
``Proposed Rules'' section of today's Federal Register publication, EPA 
is publishing a separate document that will serve as the proposal to 
approve the program and delegation of authority described in this 
action if adverse comments are received. This action will be effective 
May 17, 2005 without further notice unless the Agency receives relevant 
adverse comments by April 18, 2005.
    If EPA receives relevant adverse comments, we will publish a timely 
withdrawal in the Federal Register informing the public the rule will 
not take effect. We will address all public comments in a subsequent 
final rule based on the proposed rule. The EPA will not institute a 
second comment period on this action. Any parties interested in 
commenting must do so at this time. Please note that if we receive 
relevant adverse comment on an amendment, paragraph, or section of this 
rule and if that provision may be severed from the remainder of the 
rule, we may adopt as final those provisions of the rule that are not 
the subject of a relevant adverse comment.

XVI. 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 request 
to receive delegation of certain Federal standards, 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.

[[Page 13114]]

    In reviewing delegation submissions, EPA's role is to approve 
submissions 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 delegation submission for failure to use VCS. It would 
thus be inconsistent with applicable law for EPA to use VCS in place of 
a delegation 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 May 17, 2005. 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 63

    Environmental protection, Air pollution control, Hazardous 
substances, Incorporation by reference, Intergovernmental relations, 
Reporting and recordkeeping requirements.

    Authority: This action is issued under the authority of section 
112 of the Clean Air Act, as amended, 42 U.S.C. 7412.

    Dated: March 9, 2005.
Richard E. Greene,
Regional Administrator, Region 6.

0
40 CFR part 63 is amended as follows:

PART 63--[AMENDED]

0
1. The authority citation for part 63 continues to read as follows:

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


0
2. Section 63.99 is amended by adding paragraph (a)(43) to read as 
follows:


Sec.  63.99  Delegated Federal authorties.

    (a) * * *
    (43) Texas. (i) The following table lists the specific part 63 
standards that have been delegated unchanged to the Texas Commission on 
Environmental Quality for all sources. The ``X'' symbol is used to 
indicate each subpart that has been delegated. The delegations are 
subject to all of the conditions and limitations set forth in Federal 
law, regulations, policy, guidance, and determinations. Some 
authorities cannot be delegated and are retained by EPA. These include 
certain General Provisions authorities and specific parts of some 
standards. Any amendments made to these rules after this effective date 
are not delegated.

       Delegation Status for Part 63 Standards--State of Texas \1\
------------------------------------------------------------------------
               Subpart                   Source Category      TCEQ \2\
------------------------------------------------------------------------
F....................................  Hazardous Organic              X
                                        NESHAP (HON)--
                                        Synthetic Organic
                                        Chemical
                                        Manufacturing
                                        Industry (SOCMI).
G....................................  HON--SOCMI Process             X
                                        Vents, Storage
                                        Vessels, Transfer
                                        Operations and
                                        Wastewater.
H....................................  HON--Equipment                 X
                                        Leaks.
I....................................  HON--Certain                   X
                                        Processes
                                        Negotiated
                                        Equipment Leak
                                        Regulation.
J....................................  Polyvinyl Chloride             X
                                        and Copolymers
                                        Production.
K....................................  (Reserved).........
L....................................  Coke Oven Batteries            X
M....................................  Perchloroethylene              X
                                        Dry Cleaning.
N....................................  Chromium                       X
                                        Electroplating and
                                        Chromium Anodizing
                                        Tanks.
O....................................  Ethylene Oxide                 X
                                        Sterilizers.
P....................................  (Reserved).........
Q....................................  Industrial Process             X
                                        Cooling Towers.
R....................................  Gasoline                       X
                                        Distribution.
S....................................  Pulp and Paper                 X
                                        Industry.
T....................................  Halogenated Solvent            X
                                        Cleaning.
U....................................  Group I Polymers               X
                                        and Resins.
V....................................  (Reserved).........
W....................................  Epoxy Resins                   X
                                        Production and Non-
                                        Nylon Polyamides
                                        Production.
X....................................  Secondary Lead                 X
                                        Smelting.
Y....................................  Marine Tank Vessel             X
                                        Loading.
Z....................................  (Reserved).........
AA...................................  Phosphoric Acid                X
                                        Manufacturing
                                        Plants.
BB...................................  Phosphate                      X
                                        Fertilizers
                                        Production Plants.
CC...................................  Petroleum                      X
                                        Refineries.
DD...................................  Off-Site Waste and             X
                                        Recovery
                                        Operations.
EE...................................  Magnetic Tape                  X
                                        Manufacturing.
FF...................................  (Reserved).........
GG...................................  Aerospace                      X
                                        Manufacturing and
                                        Rework Facilities.
HH...................................  Oil and Natural Gas            X
                                        Production
                                        Facilities.
II...................................  Shipbuilding and               X
                                        Ship Repair
                                        Facilities.
JJ...................................  Wood Furniture                 X
                                        Manufacturing
                                        Operations.
KK...................................  Printing and                   X
                                        Publishing
                                        Industry.
LL...................................  Primary Aluminum               X
                                        Reduction Plants.

[[Page 13115]]

 
MM...................................  Chemical Recovery              X
                                        Combustion Sources
                                        at Kraft, Soda,
                                        Sulfide, and Stand-
                                        Alone Semichemical
                                        Pulp Mills.
NN...................................  (Reserved).........
OO...................................  Tanks-Level 1......            X
PP...................................  Containers.........            X
QQ...................................  Surface                        X
                                        Impoundments.
RR...................................  Individual Drain               X
                                        Systems.
SS...................................  Closed Vent                    X
                                        Systems, Control
                                        Devices, Recovery
                                        Devices and
                                        Routing to a Fuel
                                        Gas System or a
                                        Process.
TT...................................  Equipment Leaks--              X
                                        Control Level 1.
UU...................................  Equipment Leaks--              X
                                        Control Level 2
                                        Standards.
VV...................................  Oil-Water                      X
                                        Separators and
                                        Organic-Water
                                        Separators.
WW...................................  Storage Vessels                X
                                        (Tanks)--Control
                                        Level 2.
XX...................................  (Reserved).........
YY...................................  Generic Maximum                X
                                        Achievable Control
                                        Technology
                                        Standards.
ZZ-BBB...............................  (Reserved).........
CCC..................................  Steel Pickling--HCl            X
                                        Process Facilities
                                        and Hydrochloric
                                        Acid Regeneration.
DDD..................................  Mineral Wool                   X
                                        Production.
EEE..................................  Hazardous Waste                X
                                        Combustors.
FFF..................................  (Reserved).........
GGG..................................  Pharmaceuticals                X
                                        Production.
HHH..................................  Natural Gas                    X
                                        Transmission and
                                        Storage Facilities.
III..................................  Flexible                       X
                                        Polyurethane Foam
                                        Production.
JJJ..................................  Group IV Polymers              X
                                        and Resins.
KKK..................................  (Reserved).........
LLL..................................  Portland Cement                X
                                        Manufacturing.
MMM..................................  Pesticide Active               X
                                        Ingredient
                                        Production.
NNN..................................  Wool Fiberglass                X
                                        Manufacturing.
OOO..................................  Amino/Phenolic                 X
                                        Resins.
PPP..................................  Polyether Polyols              X
                                        Production.
QQQ..................................  Primary Copper                 X
                                        Smelting.
RRR..................................  Secondary Aluminum             X
                                        Production.
SSS..................................  (Reserved).........
TTT..................................  Primary Lead                   X
                                        Smelting.
UUU..................................  Petroleum                      X
                                        Refineries--Cataly
                                        tic Cracking
                                        Units, Catalytic
                                        Reforming Units
                                        and Sulfur
                                        Recovery Plants.
VVV..................................  Publicly Owned                 X
                                        Treatment Works
                                        (POTW).
WWW..................................  (Reserved).........
XXX..................................  Ferroalloys                    X
                                        Production:
                                        Ferromanganese and
                                        Silicomanganese.
AAAA.................................  Municipal Solid                X
                                        Waste Landfills.
CCCC.................................  Nutritional Yeast              X
                                        Manufacturing.
DDDD.................................  Plywood and
                                        Composite Wood
                                        Products.
EEEE.................................  Organic Liquids
                                        Distribution.
FFFF.................................  Miscellaneous
                                        Organic Chemical
                                        Manufacturing
                                        (MON).
GGGG.................................  Solvent Extraction             X
                                        for Vegetable Oil
                                        Production.
HHHH.................................  Wet Formed                     X
                                        Fiberglass Mat
                                        Production.
IIII.................................  Auto & Light Duty
                                        Truck.
JJJJ.................................  Paper and other Web            X
                                        (Surface Coating).
KKKK.................................  Surface Coating of
                                        Metal Cans.
MMMM.................................  Miscellaneous Metal
                                        Parts and Products
                                        Surface Coating.
NNNN.................................  Surface Coating of             X
                                        Large Appliances.
OOOO.................................  Fabric Printing
                                        Coating and Dyeing.
PPPP.................................  Surface Coating of
                                        Plastic Parts and
                                        Products.
QQQQ.................................  Surface Coating of
                                        Wood Building
                                        Products.
RRRR.................................  Surface Coating of
                                        Metal Furniture.
SSSS.................................  Surface Coating for            X
                                        Metal Coil.
TTTT.................................  Leather Finishing              X
                                        Operations.
UUUU.................................  Cellulose                      X
                                        Production
                                        Manufacture.
VVVV.................................  Boat Manufacturing.            X
WWWW.................................  Reinforced Plastic
                                        Composites
                                        Production.
XXXX.................................  Tire Manufacturing.            X
YYYY.................................  Stationary
                                        Combustion
                                        Turbines.
ZZZZ.................................  Reciprocating
                                        Internal
                                        Combustion Engines.
AAAAA................................  Lime Manufacturing.
BBBBB................................  Semiconductor
                                        Manufacturing.
CCCCC................................  Coke Ovens:
                                        Pushing, Quenching
                                        and Battery Stacks.
DDDDD................................  Industrial,
                                        Commercial, and
                                        Institutional
                                        Boilers and
                                        Process Heaters.
EEEEE................................  Iron and Steel
                                        Foundries.
FFFFF................................  Integrated Iron and
                                        Steel.
GGGGG................................  Site Remediation...
HHHHH................................  Miscellaneous
                                        Coating
                                        Manufacturing.
IIIII................................  Mercury Cell Chlor-
                                        Alkali Plants.

[[Page 13116]]

 
JJJJJ................................  Brick and
                                        Structural Clay
                                        Products
                                        Manufacturing.
KKKKK................................  Clay Ceramics
                                        Manufacturing.
LLLLL................................  Asphalt Roofing and
                                        Processing.
MMMMM................................  Flexible
                                        Polyurethane Foam
                                        Fabrication
                                        Operation.
NNNNN................................  Hydrochloric Acid
                                        Production, Fumed
                                        Silica Production.
PPPPP................................  Engine Test
                                        Facilities.
QQQQQ................................  Friction Materials             X
                                        Manufacturing.
RRRRR................................  Taconite Iron Ore
                                        Processing.
SSSSS................................  Refractory Products
                                        Manufacture.
TTTTT................................  Primary Magnesium
                                        Refining .
------------------------------------------------------------------------
\1\ Program delegated to Texas Commission on Environmental Quality
  (TCEQ).
\2\ Authorities which may not be delegated include: Sec.   63.6(g),
  Approval of Alternative Non-Opacity Emission Standards; Sec.
  63.6(h)(9), Approval of Alternative Opacity Standards; Sec.
  63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test
  Methods; Sec.   63.8(f), Approval of Major Alternatives to Monitoring;
  Sec.   63.10(f), Approval of Major Alternatives to Recordkeeping and
  Reporting; and all authorities identified in the subparts (e.g., under
  ``Delegation of Authority'') that cannot be delegated.

    (ii) Affected sources within Texas shall comply with the Federal 
requirements of 40 CFR part 63--subpart A--General Provisions, adopted 
by reference by the Texas Commission on Environmental Quality (TCEQ), 
with the exception of Sec.  63.5(e)(2)(i), Sec.  63.6(i)(12)(i), Sec.  
63.6(i)(13)(i) and (ii), Sec.  63.8(e)(5)(ii), Sec.  63.9(i)(3), and 
Sec.  63.10(e)(2)(ii). The TCEQ has adopted alternative provisions for 
the cited exceptions above and affected sources in Texas that are 
subject to the requirements of Subpart A shall comply with the 
requirements established at Texas Administrative Code, Title 30, Part 
1, Chapter 113, Subchapter C, section 113.100.
* * * * *
[FR Doc. 05-5411 Filed 3-17-05; 8:45 am]
BILLING CODE 6560-50-P