20732 Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations

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 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), 42 U.S.C. 7607(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental Protection, Air

pollution control, Particulate matter,

Intergovernmental relations, Reporting

and recordkeeping requirements.

Note: Incorporation by reference of the

Implementation Plan for the State of Idaho

was approved by the Director of the Office of

Federal Register on July 1, 1982.

Dated: April 25, 1996.

Chuck Clarke,

Regional Administrator.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for Part 52

continues to read as follows:

Authority: 52 U.S.C. 7401–7671q.

Subpart N—Idaho

2. Section 52.691 is added to read as

follows:

§ 52.691 Extensions.

The Administrator, by authority

delegated under section 188(d) of the

Clean Air Act, as amended in 1990,

hereby extends for one year (until

December 31, 1995) the attainment date

for the Power-Bannock Counties PM–10

nonattainment area and the Sandpoint

PM–10 nonattainment area.

[FR Doc. 96–11344 Filed 5–7–96; 8:45 am]

BILLING CODE 6560–50–P

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.

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
Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations 20733

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-forprofit 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
20734 Federal Register / Vol. 61, No. 90 / Wednesday, May 8, 1996 / Rules and Regulations

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:

§ 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

40 CFR Part 60

[FRL–5467–8]

Amendment to Standards of

Performance for New Stationary

Sources; Small Industrial-CommercialInstitutional Steam Generating Units

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final action.

SUMMARY: Today’s action promulgates

revisions to the new source performance

standards (NSPS) for new, modified,

and reconstructed small industrialcommercial-institutional steam

generating units (40 CFR part 60,

Subpart Dc) that were proposed on

November 15, 1995. The revisions

exclude certain small steam generating

units, when conducting combustion

research, from the category of small

steam generating units subject to NSPS

control requirements for sulfur dioxide

(SO2) and particulate matter (PM). The

NSPS are issued under the authority of

section 111 of the Clean Air Act (CAA).

Following promulgation of the NSPS,

litigation was filed by Babcock and

Wilcox, who repeated a concern they

had expressed during the public

comment period following proposal of

the NSPS. That is, they had requested

an exemption from the NSPS for steam

generating units of 14.6 MW (50 million

Btu/hr) heat input capacity or less used

for combustion research based on

intermittent and infrequent operation.

Discussions with Babcock and Wilcox

made it clear that there is a legitimate

concern regarding the ability of

experimental, and sometimes