[Federal Register Volume 61, Number 90 (Wednesday, May 8, 1996)]
[Rules and Regulations]
[Pages 20732-20734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11399]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[TX-10-1-7025; FRL-5468-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Revision to the State Implementation Plan (SIP) Addressing 
Visible Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On April 3, 1995 the EPA simultaneously published a direct 
final rule and notice of proposed rulemaking in which EPA published its 
decision to approve a revision to the Texas SIP addressing visible 
emissions. During the 30-day comment period, the EPA received three 
comment letters in response to the April 3, 1995, rulemaking. This 
final rule summarizes comments and EPA's responses, and finalizes the 
EPA's decision to approve the revisions to the visible emissions 
regulations for Texas.

EFFECTIVE DATE: June 7, 1996.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
addresses listed below. The interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.
    U.S. Environmental Protection Agency, Region 6, Air Planning 
Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
    U.S. Environmental Protection Agency, Air and Radiation Docket and 
Information Center, 401 M Street, SW., Washington, DC 20460.
    Texas Natural Resource Conservation Commission, 12124 Park 35 
Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas H. Diggs, Chief, Air 
Planning Section (6PD-L), USEPA Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202-2733, telephone (214) 665-7214.

SUPPLEMENTARY INFORMATION:

Background

    On April 3, 1995, the EPA published a direct final rulemaking 
approving a revision to the existing Texas regulation concerning the 
control of visible emissions (60 FR 16806). At the same time that the 
EPA published the direct final rule, a separate notice of proposed 
rulemaking was published in the Federal Register (60 FR 16829). This 
proposed rulemaking specified that EPA would withdraw the direct final 
rule if adverse or critical comments were filed on the rulemaking. The 
EPA received three letters containing adverse comments regarding the 
direct final rule within 30 days of publication of the proposed rule 
and withdrew the direct final rule on June 5, 1995 (60 FR 29484).
    The specific rationale EPA used to approve the revision to the 
Texas visible emissions regulations is explained in the direct final 
rule and will not be restated here. This final rule contained in this 
Federal Register addresses the comments received during the public 
comment period and announces EPA's final action regarding approval of 
the visible emissions revisions.

Response to Public Comments

    In the April 3, 1995, Federal Register, the EPA requested public 
comments on the proposed/direct final rules (please reference 60 FR 
16806-16808 and 60 FR 16829). The EPA received three adverse comment 
letters dated May 3, 1995, and thus proceeded to withdraw the direct 
final rule and adequately address each comment letter. The EPA's 
response to each comment letter is detailed below.
    1. A letter was received from Larry Feldcamp, Baker & Botts, LLP, 
representing the Texas Industry Project (TIP). The TIP believed that 
the Texas Regulation I provisions for visible emissions were 
unwarranted, and that the EPA exceeded its statutory authority under 
title I of the Clean Air Act as amended in 1990 (CAA) in proposing to 
approve those provisions into the Texas SIP. The TIP believes that the 
visible emissions provisions are not necessary for the attainment or 
maintenance of any National Ambient Air Quality Standard (NAAQS) in 
Texas. Further, the TIP is concerned that some visible emissions 
provisions in Regulation I will cause more burdensome monitoring, 
recordkeeping, reporting, and compliance certification requirements for 
subject sources, since title V of the CAA incorporates SIP 
requirements. Finally, the TIP expressed concern about federal suits 
being available to enforce the visible emissions provisions, provisions 
which the TIP believes should not be in the Texas SIP.
    EPA's response to letter #1: Section 110(a)(1) of the CAA requires 
States to provide plans for the implementation and maintenance, and 
enforcement of primary and secondary criteria pollutant standards, and 
for these plans to be submitted to EPA as part of the SIP. The visible 
emissions revisions provide for maintenance of the particulate standard 
statewide, and thus meet the intent of section 110(a)(1). Since EPA 
believes that the visible emissions regulations provide for maintenance 
of the particulate standard and strengthen the SIP as a whole, 
incorporation of these revisions into the SIP is required under section 
110. The EPA must take action on state SIP submittals to either approve 
or disapprove the submittals. The EPA believes that the revised visible 
emissions provisions in Texas Regulation I are approvable (note--the 
existing Texas SIP contains visible emissions provisions in Texas 
Regulation I). This approval will strengthen the Texas SIP by updating 
the regulation. The EPA believes that

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without visible emissions provisions in the Texas SIP, certain NAAQS 
(e.g. particulate, sulfur oxides, lead, ozone, and nitrogen dioxide) 
could be threatened. Clearly, the presence of the visible emissions 
provisions has resulted in particulate matter controls across the State 
of Texas. For the important visible emissions provisions to be 
eliminated from the Texas SIP, the State of Texas would have to submit 
a modeling demonstration to the EPA showing that the NAAQS could be 
attained and maintained in the State without the visible emissions 
provisions in Regulation I. Also, the EPA believes that the opacity 
provisions in Texas Regulation I provide visibility protection 
(visibility is an air quality related value). In addition, opacity 
limitations can be used as an indicator (or in some cases, as a 
determinator) in judging compliance or noncompliance with particulate 
matter (PM10) and other pollutant standards in the Texas SIP. Finally, 
the EPA believes that the visible emissions provisions, along with the 
Federal title V and the State permitting programs, allow for reasonable 
flexibility in meeting monitoring, recordkeeping, reporting, and 
compliance certification requirements so that an undue burden does not 
fall upon subject sources. It is important to note that the original 
enhanced monitoring proposal package, which provided for certain 
monitoring, recordkeeping, reporting, and compliance certification 
requirements, was withdrawn from the Office of Management and Budget on 
April 3, 1995, was revised significantly, and is planned to be 
reproposed in the Spring of 1996. The concerns about potentially 
burdensome monitoring, recordkeeping, reporting, and compliance 
certification requirements should be resolved under the new proposal 
that the EPA, in conjunction with the States, local agencies, and the 
regulated community, will produce.
    It is the intent of section 110 of the CAA for States to develop an 
effective SIP control strategy to ensure attainment and maintenance of 
the NAAQS. One principle that must be adhered to is that the measures 
contained in the SIP be federally enforceable. To be enforceable, a 
legal means to ensure that sources remain in compliance with any 
measures or rules contained in the SIP must be provided. Federal and 
State suits are the legal means by which EPA ensures compliance with 
SIP requirements.
    2. A letter was received from Neil Carman representing the Sierra 
Club (Lone Star Chapter). The Sierra Club supported the proposed action 
to make federally enforceable the visible emissions provisions of Texas 
Regulation I with one exception. The Sierra Club believed that the 
Midlothian cement plants burning hazardous waste, or any cement plant 
in Texas burning hazardous waste, should be subject to a more stringent 
visible emissions standard than the grandfathered level of 30 percent 
opacity. The Sierra Club also stated that the grandfathered status for 
Texas Industries Inc. and North Texas Cement Company in Midlothian 
should have been terminated when they were allowed to burn hazardous 
waste.
    3. A letter was received from Sue Pope representing Downwinders At 
Risk (DAR). The DAR also believed that the Midlothian cement plants 
burning hazardous waste should be subject to a more stringent visible 
emissions standard than the grandfathered level of 30 percent opacity.
    EPA's response to letters #2 and #3: The EPA will approve the 
current provisions in order to strengthen the Texas SIP. There are 
currently 4 PM10 monitors operating in the city of Midlothian, Texas. 
The data collected from these monitors indicate levels far below the 
annual and 24-hour PM10 NAAQS of 50 micrograms per cubic meter and 150 
micrograms per cubic meter, respectively. EPA believes that these more 
stringent visible emissions regulations will ensure protection of the 
PM10 NAAQS in Midlothian. It is important to note that EPA continues to 
participate in meetings with the Sierra Club and DAR concerning 
Midlothian air quality concerns.

Final Rulemaking Action

    In this final action EPA is promulgating a revision to Texas 
Regulation I addressing visible emissions. This revision updates the 
Texas SIP and strengthens the provisions of Texas Regulation I. This 
revision was submitted by the Governor to the EPA by letters dated 
August 21, 1989, January 29, 1991, October 15, 1992 and August 4, 1993.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors, and in relation to relevant statutory and 
regulatory requirements.

Miscellaneous

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, the EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D, of the 
CAA do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-State relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
CAA forbids the EPA to base its actions concerning SIPs on such grounds 
(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42 
U.S.C. section 7410(a)(2)).
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, 
the EPA must undertake various actions in association with proposed or 
final rules that include a Federal mandate that may result in estimated 
costs of $100 million or more to the private sector, or to state, 
local, or tribal governments in the aggregate.
    Through submission of this SIP or plan revision, the State and any 
affected local or tribal governments have elected to adopt the program 
provided for under section 110 of the CAA. These rules may bind the 
State, local and tribal governments to perform certain actions and also 
require the private sector to perform certain duties. To the extent 
that the rules being approved by this action will impose no new 
requirements, such sources are already subject to these regulations 
under the State law. Accordingly, no additional costs to the State, 
local, or tribal governments, or to the private sector, result from 
this action. The EPA has also determined that this final action does 
not include a mandate that may result in estimated costs of $100 
million or more to the State, local, or tribal governments in the 
aggregate or to the private sector.
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 8, 1996. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the

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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)).

Executive Order

    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur dioxide, 
Volatile organic compounds.

    Note: Incorporation by reference of the SIP for the State of 
Texas was approved by the Director of the Federal Register on July 
1, 1982.

    Dated: April 17, 1996.
Allyn M. Davis,
Acting Regional Administrator.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart SS--Texas

    2. Section 52.2270 is amended by adding paragraph (c)(94) to read 
as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * *
    (94) Revisions to the Texas SIP addressing visible emissions 
requirements were submitted by the Governor of Texas by letters dated 
August 21, 1989, January 29, 1991, October 15, 1992 and August 4, 1993.
    (i) Incorporation by reference.
    (A) Revisions to Texas Air Control Board (TACB), Regulation I, 
Section 111.111, ``Requirements for Specified Sources;'' Subsection 
111.111(a) (first paragraph) under ``Visible Emissions;'' Subsections 
111.111(a)(1) (first paragraph), 111.111(a)(1)(A), 111.111(a)(1)(B) and 
111.111(a)(1)(E) under ``Stationary Vents;'' Subsection 111.111(b) 
(first paragraph) under ``Compliance Determination Exclusions;'' and 
Subsections 111.113 (first paragraph), 111.113(1), 111.113(2), and 
111.113(3) under ``Alternate Opacity Limitations,'' as adopted by the 
TACB on June 16, 1989.
    (B) TACB Board Order No. 89-03, as adopted by the TACB on June 16, 
1989.
    (C) Revisions to Texas Air Control Board (TACB), Regulation I, 
Section 111.111, ``Requirements for Specified Sources;'' Subsections 
111.111(a)(4)(A) and 111.111(a)(4)(B)(i) under ``Railroad Locomotives 
or Ships;'' Subsections 111.111(a)(5)(A) and 111.111(a)(5)(B)(i) under 
``Structures;'' and Subsections 111.111(a)(6)(A) and 
111.111(a)(6)(B)(i) under ``Other Sources,'' as adopted by the TACB on 
October 12, 1990.
    (D) TACB Board Order No. 90-12, as adopted by the TACB on October 
12, 1990.
    (E) Revisions to Texas Air Control Board (TACB), Regulation I, 
Section 111.111, ``Requirements for Specified Sources;'' Subsections 
111.111(a)(1)(C), 111.111(a)(1)(D), 111.111(a)(1)(F) (first paragraph), 
111.111(a)(1)(F)(i), 111.111(a)(1)(F)(ii), 111.111(a)(1)(F)(iii), 
111.111(a)(1)(F)(iv), and 111.111(a)(1)(G) under ``Stationary Vents;'' 
Subsections 111.111(a)(2) (first paragraph), 111.111(a)(2)(A), 
111.111(a)(2)(B), and 111.111(a)(2)(C) under ``Sources Requiring 
Continuous Emissions Monitoring;'' Subsection 111.111(a)(3) (first 
paragraph) under ``Exemptions from Continuous Emissions Monitoring 
Requirements;'' Subsection 111.111(a)(4), ``Gas Flares,'' title only; 
Subsection 111.111(a)(5) (first paragraph) under ``Motor Vehicles;'' 
Subsections 111.111(a)(6)(A), 111.111(a)(6)(B) (first paragraph), 
111.111(a)(6)(B)(i) and 111.111(a)(6)(B)(ii) under ``Railroad 
Locomotives or Ships'' (Important note, the language for 
111.111(a)(6)(A) and 111.111(a)(6)(B)(i) was formerly adopted as 
111.111(a)(4)(A) and 111.111(a)(4)(B)(i) on October 12, 1990); 
Subsections 111.111(a)(7)(A), 111.111(a)(7)(B) (first paragraph), 
111.111(a)(7)(B)(i) and 111.111(a)(7)(B)(ii) under ``Structures'' 
(Important note, the language for 111.111(a)(7)(A) and 
111.111(a)(7)(B)(i) was formerly adopted as 111.111(a)(5)(A) and 
111.111(a)(5)(B)(i) on October 12, 1990); and Subsections 
111.111(a)(8)(A), 111.111(a)(8)(B) (first paragraph), 
111.111(a)(8)(B)(i) and 111.111(a)(8)(B)(ii) under ``Other Sources'' 
(Important note, the language for 111.111(a)(8)(A) and 
111.111(a)(8)(B)(i) was formerly adopted as 111.111(a)(6)(A) and 
111.111(a)(6)(B)(i) on October 12, 1990), as adopted by the TACB on 
September 18, 1992.
    (F) TACB Board Order No. 92-19, as adopted by the TACB on September 
18, 1992.
    (G) Revisions to Texas Air Control Board (TACB), Regulation I, 
Section 111.111, ``Requirements for Specified Sources;'' Subsections 
111.111(a)(4)(A) (first paragraph), 111.111(a)(4)(A)(i), 
111.111(a)(4)(A)(ii), and 111.111(a)(4)(B) under ``Gas Flares,'' as 
adopted by the TACB on June 18, 1993.
    (H) TACB Board Order No. 93-06, as adopted by the TACB on June 18, 
1993.
    (ii) Additional material.
    (A) TACB certification letter dated July 27, 1989, and signed by 
Allen Eli Bell, Executive Director, TACB.
    (B) TACB certification letter dated January 9, 1991, and signed by 
Steve Spaw, Executive Director, TACB.
    (C) TACB certification letter dated October 1, 1992, and signed by 
William Campbell, Executive Director, TACB.
    (D) TACB certification letter dated July 13, 1993, and signed by 
William Campbell, Executive Director, TACB.

[FR Doc. 96-11399 Filed 5-7-96; 8:45 am]
BILLING CODE 6560-50-P