[Federal Register Volume 70, Number 234 (Wednesday, December 7, 2005)]
[Rules and Regulations]
[Pages 72720-72723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23717]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2005-TX-0030; FRL-8005-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action to approve revisions to 
the Texas State Implementation Plan (SIP) which the Texas Commission on 
Environmental Quality (TCEQ) submitted to EPA on February 5, 2004. The 
adopted amendments revise minimum distance limitation permit 
requirements for operation of new and modified sources to allow storage 
of an inoperative concrete crusher within 440 yards of a residence, 
school, or place of worship; define how distance measurements should be 
taken and when they would be applicable to concrete crushers and other 
facilities; and allow concrete crushers to recycle broken concrete at 
temporary demolition sites within 440 yards of nearby buildings, unless 
the facility is located in a county with a population of 2.4 million or 
more, or in a county adjacent to such a county. The TCEQ also revised 
the existing distance limitation for hazardous waste management 
facilities to cross-reference duplicative language elsewhere in its 
regulations. This action is being taken under section 110 of the 
Federal Clean Air Act (the Act, or CAA).

DATES: This rule is effective on February 6, 2006, without further 
notice, unless EPA receives adverse comment by January 6, 2006. 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 
EDocket (RME) ID No. R06-OAR-2005-TX-0030, by one of the following 
methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> Agency Web site: http://docket.epa.gov/rmepub/, Regional 
Material 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.
    <bullet> EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
    <bullet> E-mail: Mr. David Neleigh at <a href="/cdn-cgi/l/email-protection#c8a6ada4ada1afa0e6aca9bea1ac88adb8a9e6afa7be"><span class="__cf_email__" data-cfemail="afc1cac3cac6c8c781cbced9c6cbefcadfce81c8c0d9">[email protected]</span></a>. Please 
also forward a copy to the person listed in the FOR FURTHER INFORMATION 
CONTACT section below.
    <bullet> Fax: Mr. David Neleigh, Chief, Air Permits Section (6PD-
R), at fax number 214-665-7263.
    <bullet> Mail: Mr. David Neleigh, Chief, Air Permits Section (6PD-
R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
    <bullet> 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 RME ID 
No. R06-OAR-2005-TX-0030. 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/ 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 Material 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 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

[[Page 72721]]

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 <a href="/cdn-cgi/l/email-protection#95e6e5e7e0fcf0f9f9bbe6e1f4fbf9f0ecd5f0e5f4bbf2fae3"><span class="__cf_email__" data-cfemail="512221232438343d3d7f2225303f3d3428113421307f363e27">[email protected]</span></a>.

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

Table of Contents

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

I. What Is Being Addressed in This Document?

    We are taking direct final action to approve revisions to Title 30 
of the Texas Administrative Code (30 TAC) Section 116.112--Distance 
Limitations into the Texas SIP. The TCEQ adopted these revisions on 
January 14, 2004, and submitted the revisions to us for approval as a 
revision to the SIP on February 5, 2004. The rulemaking implements 
Texas House Bills 555 and 1287, section 5.07, 78th Legislature, 2003.
    Section 116.112 currently establishes distance limitations for lead 
smelters, hazardous waste facilities, and concrete crushing facilities. 
These distance limitations apply to new and modified facilities in 
these source categories as conditions of their new source review 
authorizations. The existing distance limitations were approved 
September 30, 2003 (68 FR 56176).
    The revisions to section 116.112 which TCEQ submitted to EPA on 
February 5, 2004, revised the section 116.112 as follows:
    <bullet> The revised rule allows for storage of an inoperative 
concrete crusher within 440 yards of a residence, school, or place or 
worship if the residence, school, or place or worship was in use at the 
time the owner or operator filed an application for the initial 
authorization to operate that facility at that location with the TCEQ.
    <bullet> The revised rule defines how distance measurements should 
be taken and when they would be applicable to distances between 
concrete crushers and other facilities.
    <bullet> The revised rule provides an exemption from minimum 
distance limitations for concrete crushing which results from on-site 
demolition for use primarily at that site. The exemption is limited to 
one period of no more than 180 days and is applicable if the facility 
is not located in a county with a population of 2.4 million or more, or 
in a county adjacent to such county.
    <bullet> The citation of the distance limitations for hazardous 
waste management facilities was redesignated from section 116.112(2) to 
section 116.112(c) and revised to refer to the duplicative distance 
limitations for such facilities in 30 TAC section 335.204 (relating to 
Unsuitable Characteristics) and section 335.205 (relating to 
Prohibition of Permit Issuance). These cross-referenced sections are 
equivalent to the former provisions of section 116.112(2). The TCEQ 
limited applicability of the cross-referenced provisions to section 
335.204, as amended and adopted in the August 22, 2003 issue of the 
Texas Register (28 TexReg 6915), and section 335.205, as amended and 
adopted in the November 9, 2001 issue of the Texas Register (26 TexReg 
9135). Thus hazardous waste management facilities must comply with the 
distance limitations in the specific versions of sections 335.204 and 
335.205 identified in section 116.112(c). If TCEQ later revises section 
335.204 or section 335.205, it must submit an appropriate SIP revision 
to EPA to incorporate the revised version of section 335.204 or section 
335.205 into section 116.112 and receive EPA approval in order for EPA 
to recognize the revised versions of these sections.
    The Technical Support Document, which is part of the record for 
this action, contains more detailed information on how the revision 
meets the requirements of the Act, including Section 110 and 
implementing regulations.

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

    The distance limitations in section 116.112 are a discretionary 
measure not mandated by the CAA. The revision strengthens the SIP by 
providing protection for persons located near a lead smelter, concrete 
crushing facility, or hazardous waste management facility. By 
restricting the location of these types of facilities, the SIP provides 
additional assurance that persons located near these types of 
facilities will not be adversely affected by exposure to the air 
contaminants emitted from these facilities. House Bill 1287 restricts 
Texas' authority to provide an exemption from the distance limitation 
and measurement requirements to facilities for which the Commission 
determines that operation at the location will cause no adverse 
environmental or health effects. Texas has stated that compliance with 
this condition will be determined during protectiveness review as part 
of permit development. The permit review will determine compliance with 
section 116.111(2)(A)(i) of the existing SIP, which provides that the 
emissions from a new or modified facility will comply with all rules 
and regulations of the Commission and with the intent of the Texas 
Clean Air Act, including the protection of the health and physical 
property of the people. Texas noted that sources must also comply with 
the nuisance provisions of section 101.4 of the SIP. We have determined 
that the revision meets the requirements of 40 CFR 51.160(a) and 
section 110(l) of the CAA because it sets forth legally enforceable 
procedures that require the TCEQ to determine whether the construction 
or modification will result in a violation of applicable portions of 
the control strategy or will interfere with attainment or maintenance 
of a national standard. The revision also meets the requirement of 40 
CFR 51.160(e) to identify types of facilities that will be subject to 
review.

III. What Final Action Is EPA Taking?

    We are approving as a revision to the Texas SIP revisions of 30 TAC 
section 116.112--Distance Limitations, which Texas submitted on 
February 5, 2004. 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 February 6, 2006 
without further notice unless we receive adverse comment by January 6, 
2006. 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.

[[Page 72722]]

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
state to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the 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 February 6, 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: November 30, 2005.
Carl E. Edlund,
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 by revising the entry for Section 116.112 to 
read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
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                                                                  State
                                                                 approval       EPA
           State citation                  Title/Subject        submittal     approval         Explanation
                                                                   date         date
----------------------------------------------------------------------------------------------------------------
 
                                                 * * * * * * *
         Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
 
                                                 * * * * * * *
                                     Subchapter B--New Source Review Permits
                                         Division 1--Permit Application
 
                                                  * * * * * * *
Section 116.112.....................  Distance Limitations...     01/14/04     12/07/05
 
                                                  * * * * * * *
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[FR Doc. 05-23717 Filed 12-6-05; 8:45 am]
BILLING CODE 6560-50-P


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