[Federal Register Volume 71, Number 51 (Thursday, March 16, 2006)]
[Rules and Regulations]
[Pages 13549-13551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2478]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2005-TX-0016; FRL-8045-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving 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 plant 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 April 17, 2006.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) Docket ID No. R06-OAR-2005-TX-0016. All 
documents in the docket are listed in the Regional Material in EDocket 
(RME) index at http://docket.epa.gov/rmepub/, once in the system, 
select ``quick search,'' then key in the appropriate RME Docket 
identification number. 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 hard copy at 
the Air Permit Sections (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, 
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 Is the Background for This Action?
V. Why Are We Approving the Removal of Section 106.5?
VI. What Comment Did We Receive and What Is Our Response to the 
Comment?
VII. Final Action
VIII. Statutory and Executive Order Reviews

I. What Action Are We Taking?

    This action removes 30 Texas Administrative Code (TAC), section 
106.5 from the Texas SIP. This section provided public notice for 
concrete batch plants that 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 
had 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 process prior to the effective date 
of the standard permit. All authorization requests for concrete batch 
plants that 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 30 TAC Chapter 106, 
which provides an alternative process for approving the construction 
of new and modified facilities which Texas Commission on 
Environmental Quality 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 that 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-
64545).
    \2\ A standard permit is a permit which is adopted under 30 TAC 
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 that contain 
numerous similar sources. For further description of Texas 
regulations concerning standard permits, see the discussion in our 
November 14, 2003 approval (68 FR 64546-64547).
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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.

[[Page 13550]]

IV. What Is the Background for This Action?

    This action addresses the SIP submittal by Texas to EPA by letter 
dated June 28, 2004. In the submittal, Texas submitted its repeal of 
section 106.5--Public Notice, which it had adopted June 9, 2004.
    At this time, the Texas has resolved all of the outstanding 
authorization requests as explained above; the maintenance of section 
106.5 is no longer needed.
    On September 28, 2005 (70 FR 56566), we published a direct final 
rule approving the plan revisions that Texas submitted June 28, 2004. 
We concurrently published a proposed rulemaking with the direct final 
rule (70 FR 56612) and stated that if we received any adverse comment 
by the end of the comment period we would withdraw the direct final 
rule. We would then respond to the comments when we take final action 
on the proposed approval. We received an adverse comment on the direct 
final rule before the end of the comment period and consequently 
withdrew our direct final rule on November 23, 2005 (70 FR 70736).

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

    40 CFR 51.161 requires public notice prior to approval of any new 
or modified source. The process for issuing, revising and removing PBRs 
is through rulemaking. A new or revised PBR must undergo public notice 
and a 30-day comment period in order to satisfy the requirements of 40 
CFR 51.161. The basis for approval of the Texas program for PBR with 
regards to these requirements is discussed in our approval of Chapter 
106 on November 14, 2003.
    With the creation of the concrete batch plant standard permit, 
concrete batch plants are no longer authorized by 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 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 permit for batch concrete 
plants contains a provision which requires public notice for concrete 
batch plants. This requirement for public participation under the 
standard permit satisfies the requirements under 40 CFR 51.161. Our 
approval of the public notice provisions for the standard permit for 
Texas concrete batch plants is discussed in greater detail in our FR 
notice of November 14, 2003. See 68 FR 64547. We found that public 
notice provisions in standard permits meet the requirements of 40 CFR 
51.161. See 68 FR 64545 and 64547. In addition, the public 
participation requirements of the standard permit for concrete batch 
plants are reinforced by an additional statutory public notice 
requirement under Texas Health and Safety Code, section 382.058. 
Consequently, our approval of the removal of section 106.5 is based on 
the fact that Texas has provided sufficient regulatory and statutory 
safeguards in its standard permit process to provide ample opportunity 
for public comment and satisfy the applicable Federal requirements.

VI. What Comment Did We Receive and What Is Our Response to the 
Comment?

Comment

    In response to the parallel proposal to our direct final rule, we 
received an adverse comment from the public. A citizen commented that 
EPA is about to implement a rule that will limit the public notice with 
regard to proposed construction of concrete batch plants. The commenter 
further stated that this is a violation of his right to know about 
things that may affect his life (health), liberty and pursuit of 
happiness--a violation of the Constitution of the United States. He 
inquired concerning what authority EPA has in this matter and what he 
can do to stop this encroachment on public notice.

Response

    Section 110 of the CAA provides for state submission and EPA review 
of new and revised SIP submissions. Under section 110(l), a SIP 
revision may not be approved if it will interfere with attainment, 
reasonable further progress or any other requirement of the Act. The 
removal of section 106.5 from the SIP will not interfere with 
attainment, reasonable further progress or any other requirement of the 
Act. As explained in more detail in the September 2005 direct final 
rule, concrete batch plants are no longer subject to the PBR in Chapter 
106. Rather, these facilities are subject to a standard permit adopted 
by Texas in 2000 and revised in 2003. This standard permit establishes 
public participation requirements for concrete batch plants and EPA has 
previously found that those public participation requirements are 
consistent with what is required by our new source review regulations 
in 40 CFR 51.161. See 68 FR 64547 (November 14, 2003). All future 
actions will be subject to public participation requirements in the 
standard permit and all past actions taken under the PBR have been 
resolved. Furthermore, the public participation procedures under the 
standard permit will allow the same level of public involvement as the 
public participation procedures in section 106.5. Thus, the removal of 
section 106.5 from the approved SIP will not interfere with attainment, 
reasonable further progress or any other applicable requirement of the 
Act.
    For these reasons, the commenter is incorrect that this action will 
limit public notice regarding the proposed construction of concrete 
batch plants. As discussed in detail in the September 2005, direct 
final rule and in our November 2003 action approving the standard 
permit, the standard permit requires public participation prior to its 
application to a specific facility.

VII. 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.

VIII. 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

[[Page 13551]]

Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 15, 2006. 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, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: March 6, 2006.
Richard E. Greene,
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


Sec.  52.2270  [Amended]

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. 06-2478 Filed 3-15-06; 8:45 am]
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