[Federal Register Volume 70, Number 187 (Wednesday, September 28, 2005)]
[Rules and Regulations]
[Pages 56566-56569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19358]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2005-TX-0016; FRL-7975-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Permits by Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a State 
Implementation Plan (SIP) revision for the State of Texas. This action 
removes a provision from the Texas SIP which provided public notice for 
concrete batch plants which were constructed under a permit by rule 
(PBR). On September 1, 2000, Texas replaced the PBR for concrete batch 
plants with a standard permit for concrete batch plants. The standard 
permit for concrete batch plants also requires public notice for 
concrete batch plants subject to the standard permit. Texas maintained 
the public notice requirements of its PBR to assure that proper 
procedures were followed for concrete batch plants that were permitted 
under the PBR prior to the effective date of the standard permit. All 
authorization requests for concrete batch plants which were constructed 
under the PBR have now been resolved and the public notice and comment 
provisions under the PBR are no longer needed.

DATES: This rule is effective on November 28, 2005 without further 
notice, unless EPA receives adverse comment by October 28, 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 Material in 
DOCKET (RME) ID No. R06-OAR-2005-TX-0016, by one of the following 
methods:
     Federal rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://docket.epa.gov/rmepub/. Regional 
Material in DOCKET (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: Mr. David Neleigh at [email protected]. Please 
also cc the person listed in the FOR FURTHER INFORMATION CONTACT 
section below.
     Fax: Mr. David Neleigh, Chief, Air Permits Section (6PD-
R), at fax number 214-665-7263.
     Mail: Mr. David Neleigh, Chief, Air Permits Section (6PD-
R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. David Neleigh, Chief, 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 Material in DOCKET 
(RME) ID No. R06-OAR-2005-TX-0016. 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 DOCKET (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

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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 Material in DOCKET (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 Permits 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 or Mr. Bill Deese at 
(214) 665-7523 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, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Stanley M. Spruiell, Air Permits 
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212; 
fax number 214-665-7263; e-mail address [email protected].

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

I. What Action Are We Taking?
II. What Is a State Implementation Plan?
III. What Does Federal Approval of a SIP Mean to Me?
IV. What Did the State Submit?
V. Why Are We Approving the Removal of Section 106.5?
VI. Final Action
VII. Statutory and Executive Order Reviews

I. What Action Are We Taking?

    This action removes 30 TAC, section 106.5 from the Texas SIP. This 
section provided public notice for concrete batch plants which were 
constructed under a PBR.\1\ On September 1, 2000, Texas replaced the 
PBR for concrete batch plants with a standard permit \2\ for concrete 
batch plants. The standard permit for concrete batch plants also 
requires public notice for concrete batch plants which are subject to 
the standard permit. Texas maintained the public notice requirements of 
section 106.5 to assure that proper procedures were followed for 
concrete batch plants that were permitted under the PBR prior to the 
effective date of the standard permit. All authorization requests for 
concrete batch plants which were constructed under the PBR have now 
been resolved and section 106.5 is no longer needed. Texas submitted a 
SIP revision to remove section 106.5.
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    \1\ A PBR is a permit which is adopted under Chapter 106, which 
provides an alternative process for approving the construction of 
new and modified facilities which Texas has determined will not make 
a significant contribution of air contaminants to the atmosphere. 
These provisions provide a streamlined mechanism for approving the 
construction of certain small sources which would otherwise be 
required to apply for and receive a permit before commencing 
construction or modification. For further description of Texas 
regulations concerning PBRs see the discussion in our November 14, 
2003 approval (68 FR 64544-45).
    \2\ A standard permit is a permit which is adopted under Chapter 
116,Subchapter F, which provides an alternative process for 
approving the construction of certain categories of new and modified 
sources for which the TCEQ has adopted a standard permit. These 
provisions provide a streamlined mechanism for approving the 
construction of certain sources within categories which contain 
numerous similar sources. For further description of Texas 
regulations concerning standard permits, see the discussion in our 
November 14, 2003 approval (68 FR 64546-47).
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II. What Is a State Implementation Plan?

    Section 110 of the Act requires States to develop air pollution 
regulations and control strategies to ensure that the state air quality 
meets the National Ambient Air Quality Standards (NAAQS) that EPA has 
established. Under section 109 of the Act, EPA established the NAAQS to 
protect public health. The NAAQS address six criteria pollutants. These 
pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, 
particulate matter, and sulfur dioxide.
    Each state must submit these regulations and control strategies to 
us for approval and incorporation into the federally enforceable SIP. 
Each state has a SIP designed to protect air quality. These SIPs can be 
extensive, containing state regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

III. What Does Federal Approval of a SIP Mean to Me?

    A state may enforce state regulations before and after we 
incorporate those regulations into a federally approved SIP. After we 
incorporate those regulations into a federally approved SIP, both EPA 
and the public may also take enforcement action against violators of 
these regulations.

IV. What Did the State Submit?

    This action addresses Texas' SIP submittal to EPA by letter dated 
June 28, 2004. In the submittal, Texas submitted its repeal of 
section106.5--Public Notice, which it adopted June 9, 2004. Section 
106.5 required public notice for concrete batch plants permitted under 
Chapter 106--Permits by Rule. With the creation of the concrete batch 
plant standard permit on September 1, 2000, and the repeal of the 
concrete batch plant PBR, section 106.5 is no longer needed. Texas 
maintained the public notice requirements of section 106.5 to assure 
that proper procedures were followed for the concrete batch plant PBR 
registrations received prior to the effective date of the standard 
permit for concrete batch plants. At this time, Texas has resolved all 
of the outstanding authorization requests for concrete batch plants 
permitted under Chapter 106. Consequently, the maintenance of section 
106.5 is no longer needed.

V. Why Are We Approving the Removal of Section 106.5?

    We approved section 106.5 on November 14, 2003 (68 FR 64543-50) 
when we approved Chapter 106--Permits by Rule into the Texas SIP. 
Section 106.5--Public Notice applies to the construction of permanent 
or temporary concrete batch plants that are constructed under Chapter 
106. Under

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section 106.5, each concrete batch plant constructed under Chapter 106 
must conduct public notice of the proposed construction. On September 
1, 2000, Texas issued a standard permit for concrete batch plants. This 
standard permit replaced the requirements for PBRs applicable to 
concrete batch plants. Texas maintained its requirements for concrete 
batch plants (including the requirements for public notice) to assure 
that proper procedures were followed for the concrete batch plant PBR 
registrations received prior to the effective date of the standard 
permit for concrete batch plants. Because all of the outstanding 
authorization requests for concrete batch plants permitted under 
Chapter 106 have been resolved, the maintenance of the requirements for 
concrete batch plants under Chapter 106 is no longer needed.
    On June 9, 2004, Texas repealed its PBRs for concrete batch plants 
and section 106.5. Section 106.5 is no longer necessary due to the 
issuance of the standard permit for concrete batch plant standard which 
was in accordance with section 116.602--Issuance of Standard Permits 
and because Texas has resolved all outstanding authorization requests 
for concrete batch plants permitted under Chapter 106 received prior to 
the effective date of the standard permit.
    Under Texas Health and Safety Code, section 382.058, concrete batch 
plant PBRs are subject to notice and opportunity for hearing 
provisions. The concrete batch plant PBR was the only PBR in Chapter 
106 that required public notice. With the creation of the concrete 
batch plant standard permit, concrete batch plants are no longer 
authorized by a PBR under Chapter 106. The public notice requirements 
for concrete batch plants are now contained in the standard permit; 
therefore section 106.5 is no longer needed.
    The removal of section 106.5 will not affect the obligation for 
Texas to provide for public notice when it issues new or revised PBR. 
The process for issuing, revising, and removing PBR is through 
rulemaking under which new and revised PBR must undergo public notice 
and a 30-day comment period which meets the requirements of 40 CFR 
51.161, which provides for public notice prior to approval of any new 
or modified source which is subject to the PBR. The basis for how Texas 
program for PBR meets these requirements is discussed in our November 
14, 2003 approval of Chapter 106. See 68 FR 64545.
    The standard permit for concrete batch plants was originally issued 
in 2000 (effective September 1, 2000) and was later revised in 2003 
(effective July 10, 2003). The standard permits for batch concrete 
plants were issued after notice an opportunity for public comment and 
public hearing as required under section 116.605. The process for 
public participation meets our requirements under 40 CFR 51.161, which 
provides for public notice prior to approval of any new or modified 
source which is subject to the PBR. The basis for how the Texas program 
for standard permits meets these requirements is discussed in our 
November 14, 2003, approval of Texas provisions for standard permits. 
See 68 FR 64547. The standard permit for batch concrete plants also 
contain a provision pertaining to public notice which requires public 
notice for concrete batch plants which are subject to the standard 
permit.
    The public notice requirements under section 106.5 and under the 
standard permit for concrete batch plants is an additional notice to 
the public notice required under 40 CFR 51.161. As discussed above and 
in greater detail in our November 14, 2003, approval of the PBR and 
standard permits, each new and modified PBR and standard permit 
(including the PBR and standard permit for concrete batch plants) must 
be subject public notice and comment. We found that public notice 
provisions for PBR and standard permits meet the requirement of 40 CFR 
51.161. See 68 FR 64545. Accordingly, the adoption of the PBR and later 
the standard permit for concrete batch plants were subject to public 
notice which meet these public notice requirements at the time of 
adoption. The public participation requirement and the standard permit 
for concrete batch plants is an additional public notice that Texas 
requires under Texas Health and Safety Code, section 382.058. Our 
approval of this additional requirement for the public notice 
provisions for concrete batch plants serves to strengthen the SIP.
    Furthermore, the maintenance of section 106.5 in the SIP serves no 
useful purpose because Texas has repealed the PBR for concrete batch 
plants. The process for removing these PBR was in accordance with the 
program that we approved for Texas PBR. Since section 106.5 is limited 
only to PBR for concrete batch plants, and since Texas has repealed 
these PBR from Chapter 106, section 106.5 is no longer needed.

VI. Final Action

    On the basis of the above analysis and evaluation we conclude that 
we can remove the provisions of section 106.5 from the SIP on the basis 
that Texas replaced the PBR for concrete batch plants, which required 
public notice, with a standard permit for concrete batch plants that 
also requires public notice for concrete batch plants that are subject 
to the standard permit.
    We are publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if adverse comments 
are received. This rule will be effective on November 28, 2005 without 
further notice unless we receive adverse comment by October 28, 2005. 
If we receive adverse comments, we will publish a timely withdrawal in 
the Federal Register informing the public that the rule will not take 
effect. We will address all public comments in a subsequent final rule 
based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time. Please note that if we receive 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 an adverse comment.

VII. 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

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Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action also 
does not have federalism implications because it does not have 
substantial direct effects on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This 
action merely approves a state rule implementing a Federal standard, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
state to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 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. 
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 November 28, 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 52

    Environmental protection, Air pollution control, Carbon Monoxide, 
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides, 
Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.

    Dated: September 19, 2005.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended under chapter 106, subchapter A, by removing 
the entry for section 106.5, ``Public Notice.''

[FR Doc. 05-19358 Filed 9-27-05; 8:45 am]
BILLING CODE 6560-50-P