Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Rules and Regulations 1927 

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP 

Name of SIP 

provision 

Applicable 

geographic or 

nonattainment area 

State submittal/ 

effective date EPA approval date Comments 

* * * * * * * 

Dallas-Fort Worth 1997 8-hour 

ozone Attainment Demonstration SIP and its 2009 attainment MVEBs, RACM demonstration, and Failure-to-Attain 

Contingency Measures Plan.

Collin, Dallas, Denton, Ellis, 

Johnson, Kaufman, Parker, 

Rockwall and Tarrant Counties, 

TX.

May 23, 2007, November 7, 2008.January 14, 2009 [Insert FR page number where document begins].Conditional Approval. 

Transportation Control Measures Collin, Dallas, Denton, Ellis, 

Johnson, Kaufman, Parker, 

Rockwall and Tarrant Counties, 

TX.

May 23, 2007 ............. January 14, 2009 [Insert FR page number where document begins].

VMEP ........................................... Collin, Dallas, Denton, Ellis, 

Johnson, Kaufman, Parker, 

Rockwall and Tarrant Counties, 

TX.

May 23, 2007 ............. January 14, 2009 [Insert FR page number where document begins].

VOC RACT finding for the 1-hour 

ozone NAAQS and the 1997 8- 

hour ozone NAAQS.

Collin, Dallas, Denton, Ellis, 

Johnson, Kaufman, Parker, 

Rockwall and Tarrant Counties, 

TX.

May 23, 2007 ............. January 14, 2009 [Insert FR page number where document begins].

[FR Doc. E9–118 Filed 1–13–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2007–1147; FRL–8758–8] 

Approval and Promulgation of 

Implementation Plans; Texas; Control 

of Emissions of Nitrogen Oxides (NOX) 

From Cement Kilns 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is finalizing 

approval of revisions to the Texas State 

Implementation Plan (SIP). We are 

approving the rules in 30 TAC Chapter 

117 that the State submitted on May 30, 

2007, concerning control of emissions of 

NOX from cement kilns operating in 

Bexar, Comal, Ellis, Hays, and 

McLennan Counties. We are approving 

the nonsubstantive renumbering of the 

rules for all five counties. We also are 

approving the substantive changes to 

the rules for Ellis County, based on a 

determination that the rules for Ellis 

County meet the NOX Reasonably 

Available Control Technology (RACT) 

requirements for cement kilns operating 

in the Dallas Fort Worth (D/FW) 1997 8- 

hour ozone nonattainment area. We are 

taking this action under section 110 and 

part D of the Federal Clean Air Act (the 

Act, or CAA). 

DATES: This rule will be effective on 

February 13, 2009. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2007–0523. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

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 through 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

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. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Alan Shar, Air Planning Section (6PD– 

L), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

(214) 665–6691, fax (214) 665–7263, email address shar.alan@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

A. What are we approving? 

B. Who submitted written comments to us? 

C. How are we responding to those written 

comments? 

D. What sections of the May 30, 2007 

submittal will become part of Texas SIP? 

E. What sections of the May 30, 2007 

submittal will not become a part of 

Texas SIP? 

F. What Texas Counties will this 

rulemaking affect? 

G. What are the NOX control emissions 

requirements that we approved for Texas 

under the 1-hour ozone SIP? 

H. What are the NOX control emissions 

requirements that we are approving for 

Texas under the 8-hour ozone SIP? 

I. What are the compliance schedules for 

NOX emissions from cement kilns that 

we are approving? 

II. Final Action 

III. Statutory and Executive Order Reviews 

I. Background 

A. What are we approving? 

The EPA approved 30 TAC, Chapter 

117, NOX cement kilns rules at 69 FR 

15681 published on March 26, 2004, as 

NOX control emissions requirements for 

Texas under the 1-hour ozone SIP. On 

May 30, 2007, TCEQ submitted rule 

revisions to 30 TAC, Chapter 117, 

‘‘Control of Air Pollution from Nitrogen 

Compounds,’’ as a revision to the Texas 

SIP. On July 11, 2008 (73 FR 39911), we 

proposed approval of the May 30, 2007 


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1928 Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Rules and Regulations 

submittal. Today, we are finalizing our 

July 11, 2008, proposed approval. 

In this rulemaking, we are approving 

the nonsubstantive renumbering of the 

rules for cement kilns operating in 

Bexar, Comal, Ellis, Hays, and 

McLennan Counties. We are approving 

the substantive changes to the rules for 

cement kilns operating in Ellis County 

as meeting the Act’s RACT requirements 

for NOX emissions for the cement kiln 

source category in the D/FW 1997 8- 

hour ozone nonattainment area. 

The State’s adopted source cap 

calculation for the cement plants in Ellis 

County includes all kilns in operation at 

the three impacted accounts, i.e., Ash 

Grove, Texas, L.P. (AG); TXI Operations, 

L.P. (TXI); and Holcim, L.P. (Holcim). 

No operating kiln in Ellis County is 

exempt from the source cap. The State 

chose 1.7 lb NOX/ton of clinker for dry 

preheater-precalciner or precalciner 

kilns and 3.4 lb NOX/ton of clinker for 

wet kilns, as the emission factors for 

calculating the source cap for the RACT 

rule. The NOX source cap for cement 

manufacturing plants in Ellis County, 

Texas is calculated by (a) multiplying 

the average annual production rate in 

tons plus one standard deviation for the 

calendar years 2003, 2004, and 2005 

from all wet kilns by 3.4 pound NOX/ 

ton, (b) multiplying the average annual 

production rate in tons plus one 

standard deviation for the calendar 

years 2003, 2004, and 2005 from all dry 

kilns by 1.7 pound NOX/ton, and (c) 

adding the computed products in ‘‘a’’ 

and ‘‘b’’ together and dividing the sum 

by ((2000 (pounds/ton) x (365 (days/ 

year)). Thus, producing a total allowable 

NOX limit, in tons per day, on a 30-day 

rolling average basis as a cap not to be 

exceeded. The source cap only applies 

during the D/FW ozone season (March 

1–October 31). See 117.3123(b). 

The rule provides multiple layers of 

flexibility by: (i) Providing for one NOX

limit during the ozone season (March 1 

through October 31), and another NOX

limit during the non-ozone season 

(November 1 through end-of February) 

within the D/FW area; (ii) incorporating 

actual production rates that were 

provided by the affected companies to 

the State, then adding one standard 

deviation to the production rates as a 

part of rule development, for source cap 

allowance determination to account for 

production variability; (iii) not 

mandating a specific post combustion 

control technology; (iv) allowing the 

source to decide its method of 

compliance with the source cap; (v) 

determining compliance with the source 

cap on a 30-day rolling average basis; 

and (vi) including all types of existing 

kilns. Therefore, multiple layers of 

flexibility have been built into the rule 

for compliance purposes. 

As stated in our proposal, EPA has 

defined RACT as the lowest emission 

limitation that a particular source can 

meet by applying a control technique 

that is reasonably available considering 

technological and economic feasibility. 

See 44 FR 53761, September 17, 1979. 

Ozone nonattainment areas classified as 

moderate or above must meet RACT 

requirements as provided in sections 

182(b)(2) and 182(f) of the Act. These 

two sections, taken together, establish 

the requirements for Texas to submit a 

NOX RACT regulation for cement kilns 

(a major source of NOX ) in ozone 

nonattainment areas classified as 

moderate (such as D/FW) and above. 

Section 183(c) of the Act provides that 

we will issue technical documents, 

which identify alternative controls for 

stationary sources of NOX. The EPA 

publishes the NOX related Alternative 

Control Techniques (ACTs) documents 

for this purpose. The information in the 

ACT documents is generated from 

literature sources and contacts, control 

equipment vendors, EPA papers, 

engineering firms, and Federal, State, 

and local regulatory agencies. States can 

use information in the EPA ACTs to 

develop their RACT regulations. For a 

listing of EPA’s ACT-related documents, 

including the ACT document for 

Cement Manufacturing, see http:// 

www.epa.gov/ttn/naaqs/ozone/ctg_act/ 

index.htm (URL dated April 22, 2008). 

The public comment period for our 73 

FR 39911 proposal expired on August 

11, 2008. We received written 

comments during the public comment 

period and we respond to those 

comments below. 

B. Who submitted written comments to 

us? 

We received written comments on our 

July 11, 2008 (73 FR 39911) proposal 

from AG, TXI, and Holcim during the 

public comment period. Holcim’s 

comments were submitted on this 

proposed action and on the proposed 

action to conditionally approve the D/ 

FW area’s 1997 8-hour ozone attainment 

demonstration SIP. 

C. How are we responding to those 

written comments? 

Our responses to those written 

comments received are as follows: 

Comment #1: AG indicated that the 

applicable source cap in the rule for 

Ellis County is achievable, AG intends 

to comply with the source cap limit, and 

supports its approval by EPA. 

Response to Comment #1: We 

appreciate the AG’s statement that it 

intends to comply with the source cap 

limit in the rule. 

Comment #2: AG, TXI, and Holcim 

claim that the rule for Ellis County 

exceeds RACT and has negligible value 

to air quality planning. The State’s 

photochemical modeling demonstrates 

that NOX reductions from the cement 

plants would not have a measurable 

impact on the critical ozone monitors in 

the D/FW area. Thus, the stringent 

emission limitation is not a necessary 

component of the Texas SIP. TCEQ has 

not performed any analysis indicating 

that a high level of reduction of NOX

emissions from the Ellis County cement 

kilns would result in the D/FW area 

coming into compliance with the 1997 

8-hour ozone standard. 

Response to Comment #2: As 

discussed previously, RACT is a 

requirement of section 182 of the Act, 

and, regardless of whether the controls 

are necessary for attainment of the 1997 

8-hour ozone NAAQS in the D/FW 

ozone nonattainment area, the SIP must 

include rules that meet the VOC and 

NOX RACT requirements of the Act. In 

Appendix J of the D/FW attainment 

demonstration SIP submission, entitled 

‘‘RACT Analysis,’’ Texas identifies (1) 

all Control Techniques Guidelines 

(CTG) source categories of VOC and 

NOX emissions within the D/FW area; 

(2) all non-CTG major sources of VOC 

and NOX emissions; (3) the state 

regulation that implements or exceeds 

RACT for each applicable CTG source 

category or non-CTG major emission 

source; and describes the basis for 

concluding that these regulations fulfill 

RACT. TCEQ in Appendix J, pages J–3 

to J–5 and Table J–1, specifically says 

that State rules that were consistent 

with or more stringent than the current 

control technologies and methodologies 

implemented in other moderate 

nonattainment areas were also 

determined to fulfill RACT requirements 

for the D/FW area. Texas views the 

cement kiln rules to be RACT for the D/ 

FW area. It is not appropriate for EPA 

to question a State’s choice of RACT 

control, as long as the statutory 

requirements of the Act are met. Florida 

Power & Light Co. v. EPA, 650 F.2d 570 

(5th Cir. 1981). Moreover, States may 

adopt regulations that are more stringent 

than those required under the Act. See 

section 116 of the Act. To meet the 

statutory requirements, states are to look 

at available controls to conclude 

whether they are reasonably available 

for a specific source or source category. 

Furthermore, a State is to evaluate 

RACT for a source or source category by 

examining existing EPA guidance 

documents as well as other available 

information, e.g., EPA’s BACT/RACT/ 


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LAER Clearinghouse, ACTs. RACT can 

change over time as new technology 

becomes available or the cost of existing 

technology adjusts. Today’s RACT 

determination for a source category can 

be more stringent than a previous 

determination and thus controls 

previously considered ‘‘beyond RACT’’ 

could be considered RACT for sources 

now. 

We disagree that the rules for cement 

kilns in the D/FW area will have a 

negligible value to the area’s air quality 

planning. The rules should result in 9.7 

tons per day (TPD) of reduction in NOX

emissions for the D/FW area, which is 

a significant improvement. See section 9 

at 73 FR 39914 of our proposal. The 

EPA has reviewed the impact of 

emission reductions at the cement kilns 

in the D/FW area and determined that 

such reductions are beneficial to 

reducing ozone levels in the D/FW 

nonattainment area especially in much 

of Tarrant and Parker Counties. 

Today’s action only concerns 

approving the nonsubstantive 

renumbering of the NOX cement kiln 

rules into the Texas SIP, and approving 

the substantive changes to the NOX

cement kiln rules for Ellis County as 

meeting the Act’s NOX RACT 

requirement. Therefore, any comments 

on the State’s choices of control 

strategies in the D/FW area’s attainment 

demonstration SIP are not relevant. In a 

separate proposed action published on 

July 14, 2008 at 73 FR 40203, EPA has 

taken comment on whether the cement 

kilns rule, in combination with the 

other State and Federal Measures, will 

result in attainment of the 1997 8-hour 

ozone NAAQS, and we will respond to 

Holcim’s comments on these issues in a 

final action on that proposal. 

Additionally, we note that EPA is 

required to approve a SIP revision if it 

meets the Act’s requirements, and 

cannot second guess the State’s choices 

if the plan meets the minimum 

requirements of the Act. The Act assigns 

to the states initial and primary 

responsibility for formulating a plan to 

achieve the NAAQS. It is up to the State 

to prepare SIPs, which contain specific 

pollution control measures. The EPA is 

charged with evaluating the SIP revision 

submittal, and if it meets the minimum 

statutory criteria, the EPA must approve 

it. Train v. NRDC, 421 U.S. 60 (1975). 

It is not EPA’s role to rule out the State’s 

choice of components of its SIP 

submittal so long as the plan is adequate 

to meet the standards mandated by EPA. 

See Train v. NRDC at 79–80, and see 

Union Electric v. EPA, 427 U.S. 246 

(1976). The EPA disapproves a SIP 

submittal only if it fails to meet the 

minimum statutory requirements. 

Seabrook v. Costle, 659 F.2d 1349 (5th 

Cir. 1981). A state may impose stricter 

limitations than the Act requires. See 

section 116 of the Act; Union Electric at 

265. 

Comment #3: TXI states that Table 5, 

section 9 of EPA’s proposal fails to 

mention the alternative NOX control 

options allowed under the Texas 1-hour 

ozone NOX SIP will be available to Ellis 

County cement kilns during the nonozone season. 

Response to Comment #3: While 

Table 5, section 9 of EPA’s proposal is 

factually correct, it does not specifically 

mention the alternative NOX control 

option. TCEQ removed these options for 

cement kilns in Ellis County during the 

D/FW area’s ozone season; EPA 

recognizes these compliance options are 

available during the non-ozone season 

(November 1st through the end of 

February). For the other four counties, 

which are not a part of the D/FW 8-hour 

ozone nonattainment area, cement kilns’ 

NOX alternative control options 

continue to remain in effect year round. 

See section 117.3110. 

Comment #4: TXI and Holcim 

commented that improvement in the D/ 

FW ozone situation should come from 

mobile sources, not the cement kilns. 

Response to Comment #4: This 

comment is not relevant to today’s 

action because this action solely reviews 

the Ellis County cement kiln rules for 

purposes of the NOX RACT requirement 

of the Act. Holcim provided the same 

comment, however, on our proposed 

action to conditionally approve the D/ 

FW 1997 8-hour ozone attainment 

demonstration SIP. We will address this 

comment in the final rulemaking action 

on that SIP. See the response to 

comment #2 of this document for more 

detail. 

Comment #5: TXI and Holcim 

expressed support for TCEQ not 

adopting the ‘‘high control’’ option for 

the Ellis County kilns, due to technical 

issues associated with the Selective 

Catalytic Reduction (SCR), and Low 

Temperature Oxidation (LoTOx) 

technologies. They further claim that 

neither SCR nor LoTOx technology 

constitutes RACT for the control of NOX

from the Midlothian Cement kilns. 

Response to Comment #5: We agree 

that the current State-adopted level of 

NOX control for cement kilns in the D/ 

FW area meets the RACT requirement 

for these sources at this time. We note, 

however, that air pollution control 

technology continues to advance and 

the State may need to consider 

additional NOX controls at cement 

plants as it develops the SIP required for 

the 2008-revised ozone standard. 

Comment #6: TXI commented that the 

NOX emission factors used in the source 

cap equation are possibly the lowest 

specifications adopted by a state agency 

in the United States because the 

selected emission specification for the 

preheater/precalciner kilns of 1.7 lb 

NOX/ton of clinker represents a 

significant reduction from NOX

specification of 1.95 lb NOX/ton of 

clinker that has been selected as BACT 

in recent permitting actions for new PH/ 

PC kilns. Adoption of these very low 

NOX emission specifications in the 

source cap equation is extremely 

aggressive. 

Response to Comment #6: We agree 

that these levels are more aggressive 

than levels previously included in 

certain permits issued by the State. We 

have concluded that, at a minimum, 

these levels are consistent with RACT. 

While the commenter implies (but does 

not directly allege) that the levels are 

beyond RACT, the Act does not 

preclude the State from adopting 

controls that are more stringent than the 

minimum level required. 

We note that this is not the first time 

TCEQ has adopted a rule in Chapter 117 

to meet RACT that is more stringent 

than past permits’ BACT decisions. We 

recognize that compliance with the 

levels in the Texas rules will require 

significant effort from the cement plant 

owners and operators. 

Comment #7: TXI and Holcim state 

that adoption of the source cap equation 

is inequitable and does not allow them 

to have a significant production 

increase. Holcim claims that over 60% 

of the total NOX reductions anticipated 

from the source cap requirement will be 

from Holcim’s two kilns, despite the fact 

that there are eight other cement kilns 

operating in Ellis County. Holcim 

comments that TCEQ has unfairly 

targeted Holcim as a source of emission 

reductions in Ellis County. TXI finds the 

rule to be retroactive because the source 

cap is based upon the average 

production for 2003, 2004, and 2005. 

This figure allegedly does not include 

the increase in production allowed by a 

permit issued in late 2005. To meet the 

source cap, TXI may have to shutdown 

its wet kilns while operating its dry 

kiln. 

Response to Comment #7: The 

primary role of the statutory RACT 

requirement is to impose controls upon 

existing facilities and equipment. RACT 

has been a requirement of the Act since 

1977. Congress through the 1977 Clean 

Air Act Amendments imposed stricter 

minimum requirements by placing 

RACT limitations on nonattainment 

areas. CAA Section 172(b)(3), 42 U.S.C. 

7502(b)(3) (1977). The use of the term 


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‘‘retroactive’’ by TXI is misleading in 

that the RACT controls will apply to 

TXI’s existing sources, but TXI is 

provided sufficient time to install the 

controls by a date well after TCEQ has 

promulgated the RACT regulations. 

As discussed previously in response 

to comment #2 of this document, EPA 

cannot reject the State regulations 

because they may apply in an 

inequitable manner. While TXI alleges it 

may have to shut down some of its units 

to operate others, the Act does not 

preclude the State from adopting 

controls that are more stringent than the 

minimum level required. The Act gives 

the States exclusive control in selecting 

which sources to regulate and to what 

degree, and EPA does not have authority 

to second guess the State’s choices so 

long as the programs adopted meet the 

minimum statutory requirements. See 

Union Electric v. EPA, 427 U.S. 246 

(1976). 

Comment #8: Holcim commented that 

the ERG cement kiln study cannot be 

relied upon by TCEQ to establish the 

NOX controls imposed on the Ellis 

County cement kilns in the source cap 

rule. Holcim contends that the ERG 

cement kiln study is internally 

inconsistent, inaccurate in its 

assessment of available NOX control 

technologies for the Ellis County cement 

kilns, incomplete in that it did not fully 

analyze the impacts of kiln feedstocks 

on the viability of add-on NOX control 

technologies or address other tasks 

included in the Scope of Work, and is 

unreliable as a basis for NOX controls 

for the Ellis County kilns. It inaccurately 

estimates the level of reductions 

achievable using SNCR on some of the 

Ellis County kilns. Holcim commented 

that the ERG Final Report fails to 

include retrofitting costs such as new ID 

fans for all kilns necessary for utilizing 

SCR and LoTOx systems. Holcim further 

claims that the limestone and raw 

materials used in Ellis County kilns are 

different from the limestone, and raw 

materials used by other plants in the 

world, and deficiencies in the ERG 

Report is not scientifically or factually 

valid, and is not a reliable basis for 

TCEQ’s adoption of the Source Cap Rule 

or EPA’s approval of TCEQ’s SIP. 

Holcim also incorporates by reference 

the comments on the ERG Final Report 

that were submitted to the State. 

Response to Comment #8: As an 

initial matter, we note that we cannot 

second guess the State’s conclusions, so 

long as our review determines that the 

rules developed meet the minimum 

statutory requirements. Holcim appears 

to be claiming that the rules are too 

stringent because they are based on a 

study with which Holcim finds fault. 

However, even if such claim were true, 

we cannot disapprove the rules when 

they meet the minimum statutory 

requirements for RACT. Any 

requirement beyond the basic RACT 

level of control is not a basis for EPA to 

disapprove the rule, as the CAA leaves 

the choice to the State to determine 

whether to go beyond the minimum 

statutory requirements of the Act. 

The referenced study can be found in 

Appendix I of the D/FW 1997 8-hour 

ozone attainment demonstration SIP 

revision submittal and is available on 

the TCEQ’s Web site at 

www.tceq.state.tx.us/implementation/ 

air/sip/BSA_settle.html. The ERG, Inc. 

prepared the Report, and it is entitled 

‘‘Assessment of NOX Emissions 

Reduction Strategies for Cement Kilns— 

Ellis County: Final Report,’’ dated July 

14, 2006. The State relied upon it as 

well as all other available 

documentation to determine what 

should be RACT for the cement kilns. 

This Report was prepared because of 

a study conducted on behalf of TCEQ 

pursuant to an April 22, 2005, 

settlement agreement in a lawsuit 

brought against EPA by Blue Skies 

Alliance and others. The TCEQ, the 

Portland Cement Association, several 

counties, and others were permitted by 

the Court to intervene. The Portland 

Cement Association represented 

Holcim’s interests in the lawsuit. The 

Settlement Agreement was filed with 

the Federal District Court for the 

Northern District of Texas in June 2005. 

Pursuant to paragraph A.3.b. of the 

Settlement Agreement entitled, ‘‘Cement 

Kiln Control Technology Study,’’ TCEQ 

was required to meet with Plaintiffs, 

EPA, and the Portland Cement 

Association to review and comment 

upon the proposed scope of work to 

contract with a consultant to perform a 

cement kiln study to evaluate the 

potential availability of new air 

pollution control technologies for 

cement kilns in the D/FW area. The 

proposed scope of work also was to 

include consideration of SCR and to 

evaluate and establish what type of 

controls may be technically and 

economically applied to the three 

cement plants in Ellis County. Holcim 

participated in the meetings on the 

proposed scope of work. The TCEQ’s 

choice of a contractor was required to be 

made with consultation with the 

Plaintiffs, EPA, and the Portland 

Cement Association. Holcim 

participated in the choice of contractor. 

Midway through the study’s progress, 

the contractor was required to identify 

to the Plaintiffs, EPA, and the Portland 

Cement Association, a list of cement 

kilns with advanced NOX emission 

reduction technologies being analyzed 

as part of the study. Holcim received 

this information. TCEQ was required to 

establish channels of communication 

with the Parties for technical air quality 

issues and make a good faith effort to 

address problems identified by the 

Parties. TCEQ also was required to meet 

with the Parties on other issues of 

interest and concern in the cement kiln 

matter. Holcim was involved in the 

communications and meetings with 

TCEQ and provided comments on the 

Draft Report and the final. The EPA has 

not been provided with any legal 

document filed with the Federal District 

Court asserting that TCEQ failed to meet 

its legal obligations under the 

Settlement Agreement of making a good 

faith effort to address any problems 

identified by Holcim. 

The ERG Report evaluated the 

applicability, availability, technical 

feasibility, and cost-effectiveness of 

NOX control technologies for cement 

kilns located in the D/FW area beyond 

the requirements of the NOX rules in the 

SIP at the time of the Report (i.e., rules 

adopted by the State in 2003 and 

approved by EPA at 69 FR 15681 (March 

24, 2004)). The Report is consistent with 

EPA’s ACT (2000) document, proposed 

New Source Performance Standard 

(NSPS) for Portland cement plants at 73 

FR 34072 (June 16, 2008), and the 

BACT/RACT/LAER Clearinghouse. 

Comment #9: Holcim commented that 

for its two PH/PC kilns, the TCEQ 

proposed equation at section 

117.3123(b) for calculating a NOX

source cap would establish an emission 

rate of 2.84 TPD of NOX emissions per 

PH/PC kiln, with a plant-wide NOX

emission limit of 5.68 TPD (2.84 TPD × 

2 kilns). In its comments to the State, 

Holcim alternatively proposed a plantwide NOX limit of 8.5 tons per day to 

be applied during the ozone season 

only. The TCEQ, however, adopted the 

equation at section 117.3123(b) for 

calculating a NOX source cap that 

establishes a more stringent emission 

rate than Holcim had requested, without 

going through another round of public 

comment and hearing. 

Response to Comment #9: Courts have 

consistently held that an agency is not 

required to start over with a new notice 

of proposed rulemaking, if the final rule 

is a ‘‘logical outgrowth’’ of the proposed 

rule. It is an established administrative 

law principle that after hearing all 

public comments, the agency may end 

up substantially revising the original 

proposed rule. What is required is that 

the proposal notice should be 

sufficiently descriptive of the ‘subjects 

and issues involved’ so that interested 

parties may offer informed criticism and 


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comments. See Ethyl Corp. v. EPA, 541 

F.2d 1, 48 (DC Cir. 1976). If the final 

rule is logically connected to the 

proposed rule, the public is considered 

to have had an adequate opportunity to 

make its views known. The State’s 

proposal was clear that the issues were 

an appropriate emissions limitation, and 

a corresponding source cap equation. 

After the close of the public comment 

period, and upon review and evaluation 

of the submitted comments, the State 

merely expanded on prior information, 

and addressed alleged deficiencies in 

the pre-existing data. See Rybachek v. 

EPA, 904 F.2d 1276, 1286 (9th. Cir. 

1990). 

The resultant equation is in a format 

consistent with other equations in 

Chapter 117. The public was provided 

an ample opportunity to provide 

comments on the appropriateness of 

NOX emissions limitations, and what 

would be the appropriate corresponding 

equation. An integral part of rulemaking 

is for the State to have the authority and 

discretion to revise its initial version of 

a proposed rule, consistent with the 

terms of its proposal, based on relevant 

information it receives during public 

comment period. It is not an uncommon 

practice for a state to issue a final rule 

that differs from the proposal based on 

the receipt of relevant information 

during its public comment period. 

Comment #10: TXI and Holcim 

comment that neither SCR nor LoTOX

technology constitutes RACT for the 

control of NOX from the Ellis County 

cement kilns, and refer to their 

comments on the draft and final Report. 

Response to Comment #10: We 

believe that these requirements in the 

State’s rules meet the minimum level of 

control required for RACT rules and, as 

discussed previously, the issue of 

whether the rules are more stringent 

than what is necessary to meet RACT is 

not pertinent for our review of the rules. 

Comment #11: Holcim commented 

that according to a ‘‘New Source 

Analysis and Technical Review’’ 

(Technical Review) in conjunction with 

Holcim’s PSD Permit No. 8996/PSD– 

TX–454M3, issued in 2005, the TCEQ 

technical staff stated that NOX

reductions using SNCR are ‘‘typically 

20–40%.’’ Holcim continues that the 

Technical Review cited above; however, 

mentions that a kiln in Sweden, with a 

high baseline, had demonstrated 83% 

NOX reduction. Therefore, the State’s 

NOX cement kiln rule for Ellis County 

is too stringent because it assumes a 

control level greater than what was in 

the 2005 permit. 

Response to Comment #11: While 

Holcim accurately describes the 

conclusion reached as part of the 2005 

permitting determination, additional 

information has become available since 

that time, as described in the 2006 

Report, the documents supporting the 

EPA’s proposed NSPS, etc. This 

additional information illustrates that 

using SNCR with well-designed and 

properly operated process design, e.g., 

low-NOX burners, Staged Combustion in 

the Calciner (SCC) mechanism, can 

achieve as high as 70% reductions. Air 

pollution control equipment can often 

achieve greater percent reduction with 

higher uncontrolled emission rates (high 

baseline). This means that if a kiln is 

already controlled with low-NOX

burners and SCC mechanism, then the 

percent reduction of NOX with the 

addition of the SNCR from that kiln will 

be less. 

Comment #12: Holcim contends that 

it cannot meet the ozone season 

emission factor of 1.7 pounds of NOX

per ton of clinker produced. This 

emission factor is used by the TCEQ in 

the equation to establish a plant-wide 

NOX emission source cap for each of the 

three cement kiln companies in Ellis 

County. 30 TAC 117.3123(b). Because it 

allegedly cannot meet this emission 

factor, Holcim claims it cannot meet the 

plant-wide NOX emission source cap for 

its PH/PC kilns. Holcim states that it 

repeatedly commented on the proposed 

emission factor to TCEQ during the 

rulemaking process, claiming that it 

cannot achieve this emission factor, 

despite its recent installation of SNCR 

and based upon testing of the SNCR. 

According to Holcim, testing for its kiln 

#2 showed it did not meet the 1.7 

pounds NOX/ton of clinker emission 

factor, but rather it met 1.95 lb NOX/ton 

of clinker. Holcim claims the 1.95 

emission factor was determined to be 

BACT in a recent air permit for kiln #2, 

and that TCEQ adopted the 1.7 pounds 

NOX per ton of clinker emission factor 

without adequate justification. TCEQ 

did not adequately consider the 

technical practicability, and economic 

reasonableness of the limitations 

contained in the source cap rule. TCEQ 

did not adequately consider the 

reasonable availability of control 

technology for Holcim’s kilns, and the 

emission limitations are not practically 

achievable using SNCR. 

Response to Comment #12: We 

believe that the State’s rules meet the 

minimum level of control required for 

RACT rules and, as discussed 

previously, the issue of whether the 

rules are more stringent than what is 

necessary to meet RACT is not pertinent 

for our review of the rules. Further, the 

source cap does rule not mandate the 

type of control that a source must use. 

The source cap includes a NOX

emission factor of 1.7 pounds per ton of 

clinker for dry preheater-precalciner or 

precalciner kilns, and a NOX emission 

factor of 3.4 pounds per ton of clinker 

for wet kilns. According to TCEQ, 

emission levels of 1.7 pounds per ton of 

clinker have been demonstrated on a 

dry preheater-precalciner or precalciner 

kiln in Ellis County without the 

addition of the SNCR or other controls 

considered as part of the cement kiln 

study. The commenter has two kilns, 

one of which is a dry preheaterprecalciner kiln. 

The information in EPA’s proposed 

NSPS (73 FR 34072) indicates that an 

emission factor of 1.5 pound NOX per 

ton of clinker produced is achievable 

and cost effective. In fact, NOX emission 

factors of 1.62 to 1.97 pound NOX per 

ton of clinker produced have been 

demonstrated without adding SNCR. 

The information in EPA’s proposed 

NSPS (73 FR 34072) indicates that an 

emission factor of 1.95 pound NOX per 

ton of clinker produced can be achieved 

on average for approximately $2,000 per 

ton of NOX reduced, and at the 1.5 

lb/ton of clinker level for approximately 

$2,100 per ton of NOX reduced. 

The State estimated the cost 

effectiveness for SNCR presented in the 

cement kiln study to be $1,400 to $2,300 

per ton on NOX. 

We reviewed TCEQ’s evaluation and 

find it to be sufficient to support a 

finding that the cement kiln 

requirements of 30 TAC Chapter 117 

constitute RACT for the D/FW area. 

Comment #13: Holcim states that 

neither TCEQ nor EPA has conducted a 

proper source-specific RACT analysis 

for Holcim’s cement kilns in Ellis 

County. 

Response to Comment #13: While a 

State can consider source-specific 

considerations when setting RACT 

levels of control, it is not obligated to do 

so. RACT is most often implemented 

through source category rules. In setting 

a source category rule for cement plants, 

TCEQ set a limit it believes, and EPA 

agrees, meets the statutory minimum for 

a RACT level of control at all of the 

affected cement manufacturers. 

Comment #14: Holcim asserts that 

there are other problems with the source 

cap provision of the rule which should 

prevent it from being used to set the 

NOX emission limitations: a) TCEQ’s 

selection of the 2003–2005 time period 

to calculate a source’s actual production 

is without any basis; b) TCEQ’s source 

cap equation fails to take into account 

facility downtime; and c) TCEQ’s source 

cap equation fails to take into account 

the need for alkali bypass at the Holcim 

facility. 


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Response to Comment #14: As 

discussed previously, the comments are 

not relevant to determining that the rule 

at a minimum meets the RACT 

requirement of the Act. 

This is not the first time TCEQ has 

used the three most recent year 

production or capacity data for 

equations in other parts of Chapter 117, 

and EPA has approved that approach as 

a part of the Texas SIP. The production 

information is the actual data reported 

by the sources to the TCEQ. The source 

cap equation takes into account facility 

downtime and operation by using the 

three years of actual production rate 

data reported to TCEQ. With regard to 

the alkali bypass issue; this comment is 

not relevant to our RACT review 

because, as noted previously, EPA 

cannot second guess the State’s choices 

of control level as long as it meets the 

minimum level required to satisfy 

RACT. 

This concludes our responses to the 

written comments we received during 

public comment period. 

D. What sections of the May 30, 2007 

submittal will become part of Texas 

SIP? 

Table 1 below contains a summary list 

of the sections of 30 TAC, Chapter 117 

that EPA is approving into the Texas 

SIP. 

TABLE 1—SECTION NUMBERS AND SECTION DESCRIPTIONS OF 30 TAC, CHAPTER 117 AFFECTED BY THE CEMENT KILNS

RULE

Section No. Description 

Section 117.3100 ...................................................................................... Applicability. 

Section 117.3101 ...................................................................................... Cement Kilns Definitions.

Section 117.3103 ...................................................................................... Exemptions. 

Section 117.3110 ...................................................................................... Emission Specifications. 

Section 117.3120 ...................................................................................... Source Cap. 

Section 117.3123 ...................................................................................... Dallas-Fort Worth Eight-Hour Ozone Attainment Demonstration Control 

Requirements. 

Section 117.3140 ...................................................................................... Continuous Demonstration of Compliance. 

Section 117.3142 ...................................................................................... Emission Testing and Monitoring for Eight-Hour Attainment Demonstration. 

Section 117.3145 ...................................................................................... Notification, Recordkeeping, and Reporting Requirements. 

Section 117.9320 ...................................................................................... Compliance Schedule for Cement Kilns. 

You can find complete TCEQ’s rules 

and regulations at http:// 

www.tceq.state.tx.us/rules/ 

indxpdf.html. 

E. What sections of the May 30, 2007 

submittal will not become a part of 

Texas SIP? 

Per TCEQ’s request the following 

sections, listed in Table 2 below, of the 

cement kilns rule will not become a part 

of EPA-approved Texas SIP. These 

sections mainly pertain to the control of 

ammonia, that is not a precursor to 

ozone, and are not required to be a part 

of the SIP. 

TABLE 2—SECTIONS OF CHAPTER 117 NOT IN EPA-APPROVED TEXAS SIP 

Section No. Explanation 

117.3123(f), and 117.3125 ....................................................................... Not a part of EPA-approved Texas SIP. 

Although the above sections of 30 

TAC Chapter 117 are not to become a 

part of Texas SIP, they will continue to 

remain enforceable at the State level. 

F. What Texas Counties will this 

rulemaking affect? 

Table 3 below lists the five Texas 

Counties that will be affected by the 

cement kilns rule. 

TABLE 3—TEXAS COUNTIES AFFECTED BY CEMENT KILN RULEMAKING OF 2007 

Texas counties Explanation 

Bexar, Comal, Ellis, Hays, and McLennan .............................................. See section 117.3101. 

G. What are the NOX control emissions 

requirements that we approved for 

Texas under the 1-hour ozone SIP? 

We approved the NOX control 

emission requirements for cement kilns 

at 69 FR 15681 published on March 26, 

2004. See Table III of that document. We 

included that Table in the TSD prepared 

for our proposal. 

H. What are the NOX control emissions 

requirements that we are approving for 

Texas under the 8-hour ozone SIP? 

Ellis County is located within the D/ 

FW 8-hour ozone nonattainment area. 

The ozone season for the D/FW area is 

March 1 through October 31 of each 

calendar year. See 40 CFR part 58, 

Appendix D, Table D–3, and 40 CFR 

81.39. For Ellis County, during the nonozone season (November 1 through endof-February of each calendar year), the 

cement kilns NOX control requirements 

that we approved at 69 FR 15681 will 

continue to remain in effect. However, 

during the ozone season, March 1 

through October 31 of each calendar 

year, the cement kilns in Ellis County 

must comply with a source cap formula 

calculated and expressed in TPD of 


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actual NOX emissions, per site, on a 30- 

day rolling average basis. See equation 

117.3123(b). The following Table 4 

contains a summary list of NOX control 

requirements for cement kilns under the 

8-hour ozone SIP. 

TABLE 4—NOX CONTROL REQUIREMENTS FOR CEMENT KILNS UNDER THE 8-HOUR OZONE SIP 

Source County NOX emission requirement Citation 

Long wet kiln .................. Bexar, Comal, Hays, 

McLennan.

6.0 lb NOX/ton of clinker produced ...................... 117.3110(a)(1)(A). 

Long dry kiln .................. Bexar, Comal, Hays, 

McLennan.

5.1 lb NOX/ton clinker of produced ...................... 117. 3110(a)(2). 

Preheater kiln ................. Bexar, Comal, Hays, 

McLennan.

3.8 lb NOX/ton of clinker produced ...................... 117. 3110(a)(3). 

Precalciner or preheaterprecalciner kiln.Bexar, Comal, Hays, 

McLennan.

2.8 lb NOX/ton of clinker produced ...................... 117.3110(a)(4). 

Long wet kiln .................. Ellis ............................... 4.0 lb NOX/ton of clinker produced, outside D/ 

FW ozone season.

117.3110(a)(1)(B). 

Preheater kiln ................. Ellis ............................... 3.8 lb NOX/ton of clinker produced, outside D/ 

FW ozone season.

117.3110(a)(3). 

Long dry kiln .................. Ellis ............................... 5.1 lb NOX/ton of clinker produced, outside D/ 

FW ozone season.

117.3110(a)(2). 

Precalciner or preheaterprecalciner kiln.Ellis ............................... 2.8 lb NOX/ton of clinker produced, outside D/ 

FW ozone season.

117.3110(a)(4). 

Portland cement kiln ...... Ellis ............................... During D/FW ozone season, 30-day rolling average, source cap equation 117.3123(b), with 

the 2003–2005 reported average annual clinker production, limit is equivalent to 1.7 lb NOX/ 

ton of clinker produced for dry preheaterprecalciner or precalciner kilns, or 3.4 lb NOX/ 

ton of clinker produced for long wet kilns.

117.3123(b). 

The cement kilns rule does not 

require or endorse a specific 

postcombustion NOX control 

technology, and allows the owners or 

operators to choose their preferred 

method of compliance as long as the 

source cap limit, per site, is being met. 

These NOX control requirements will 

result in a 9.7 TPD of NOX reduction 

from cement kilns in Ellis County. We 

have determined the above NOX control 

requirements for existing cement kilns 

in the D/FW area are consistent with the 

RACT requirements of the Act. 

Therefore, we are approving them into 

the Texas SIP as meeting the RACT 

requirement for the D/FW 8-hour ozone 

nonattainment area. See our TSD 

prepared in conjunction with this 

rulemaking action for more information. 

I. What are the compliance schedules 

for NOX emissions from cement kilns 

that we are approving? 

The compliance schedule for cement 

kilns located in Texas Counties of 

Bexar, Comal, Hays, and McLennan will 

continue to remain in effect as we 

approved it at 69 FR 15681. See Table 

IV of that document. We included that 

Table in our TSD prepared for the 

proposal. 

The following Table 5 contains a 

summary of the NOX compliance 

schedule-related information for cement 

kilns in Ellis County. See section 

117.9320(c) for more information. 

TABLE 5—NOX COMPLIANCE SCHEDULES FOR CEMENT KILNS IN ELLIS COUNTY UNDER THE 8-HOUR OZONE SIP 

Source Compliance date Additional information Citation 

Cement Kilns—Ellis County ...... Comply with testing, monitoring, notification, recordkeeping, 

and reporting requirements as soon as practicable but no 

later than March 1st, 2009.

8-hour attainment demonstration requirement.117.9320 

We believe that including the 

compliance dates in the rule provides 

for enforceability and practicability of 

the NOX rule, and enhances the Texas 

SIP. The March 1, 2009 compliance date 

for cement kilns in Ellis County is 

consistent with the implementation 

requirement set forth in 40 CFR 

51.912(a)(3). Therefore, we are 

approving them into Texas SIP, and as 

meeting the RACT requirement for the 

D/FW 8-hour ozone nonattainment area. 

II. Final Action 

Today, we are approving revisions to 

the 30 TAC Chapter 117 into the Texas 

SIP. In this rulemaking, we are 

approving the nonsubstantive 

renumbering of the cement kilns 

provisions of the May 30, 2007 

submittal for cement kilns operating in 

Bexar, Comal, Ellis, Hays, and 

McLennan Counties of Texas. We are 

approving the substantive cement kilns 

provisions of the May 30, 2007 

submittal for cement kilns operating in 

Ellis County as meeting the Act’s RACT 

requirement for NOX emissions from 

cement kilns operating in the D/FW 8- 

hour ozone nonattainment area. We are 

also making ministerial corrections to 

the table in 40 CFR 52.2270(c) entitled 

‘‘EPA-Approved Regulations in the 

Texas SIP’’ to reflect our approval of 

certain revisions to 30 TAC 117 on 

December 3, 2008 (73 FR 73562). The 

ministerial corrections apply to table 

headings and entries for sections 

117.323, 117.1110, 117.1205, 117.1210 

and 117.2135 under Chapter 117— 

Control of Air Pollution from Nitrogen 

Compounds. 

III. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 


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provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994); and 

• Does not have tribal implications as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because 

the SIP is not approved to apply in 

Indian country located in the state, and 

EPA notes that it will not impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

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 action 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 March 16, 2009. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action 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, Hydrocarbons, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

oxide, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: December 17, 2008. 

Richard E. Greene, 

Regional Administrator, Region 6. 

■ 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: 42 U.S.C. 7401 et seq. 

Subpart SS—Texas 

■ 2. In § 52.2270 the entry for Chapter 

117—Control of Air Pollution from 

Nitrogen Compounds in the table in 

paragraph (c) is revised by: 

■ a. Removing the entry for the Section 

117.223 under Subchapter B, Division 3. 

■ b. Adding the entry for Section 

117.323 under Subchapter B, Division 3. 

■ c. Revising the entry for Section 

117.1110 under Subchapter C, Division 

2. 

■ d. Revising the entries for Sections 

117.1205 and 117.1210 under 

Subchapter C, Division 3. 

■ e. Revising the entry for Section 

117.2135 under Subchapter D, Division 

2. 

■ f. Removing the entries for Sections 

117.260, 117.261, 117.265, 117.273, 

117.279, 117.283, and 117.524 under 

Subchapter E, Division 2. 

■ g. Adding the entries for Sections 

117.3100, 117.3101, 117.3103, 117.3110, 

117.3120, 117.3123, 117.3140, 117.3142, 

and 117.3145 under Subchapter E, 

Division 2. 

■ h. Revising the heading above Section 

117.4200 entitled ‘‘Division 2—Nitric 

Acid Manufacturing—Ozone 

Nonattainment Areas’’ under 

Subchapter F to read ‘‘Division 3— 

Nitric Acid Manufacturing—General’’. 

■ i. Adding the entry for Section 

117.9320 under Subchapter H, Division 

1, in numerical order. 

■ j. Removing the heading entitled 

‘‘Subchapter H—Administrative 

Provisions,’’ above Division 2. 

The removals and additions read as 

follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 


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EPA-APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

* * * * * * * 

Chapter 117—Control of Air Pollution from Nitrogen Compounds 

* * * * * * * 

Subchapter B—Combustion Control at Major Industrial, Commercial, and Institutional Sources in Ozone Nonattainment Areas 

* * * * * * * 

Division 3—Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources 

* * * * * * * 

Section 117.323 ........ Source cap ............................................................ 5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

* * * * * * * 

Subchapter C—Combustion Control at Major Utility Electric Generation Sources in Ozone Nonattainment Areas 

* * * * * * * 

Division 2—Dallas-Fort Worth Ozone Nonattainment Area Utility Electric Generation Sources 

* * * * * * * 

Section 117.1110 ...... Emission Specifications for Attainment Demonstration.5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

117.1110(b) not in SIP. 

* * * * * * * 

Division 3—Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources 

* * * * * * * 

Section 117.1205 ...... Emission Specifications for Reasonably Available 

Control Technology (RACT).

5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

Section 117.1210 ...... Emission Specifications for Attainment Demonstration.5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

117.1210(b) not in SIP. 

* * * * * * * 

Subchapter D—Combustion Control at Minor Sources in Ozone Nonattainment Areas 

* * * * * * * 

Division 2—Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources 

* * * * * * * 

Section 117.2135 ...... Monitoring, Notification, and Testing Requirements.5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].


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EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

* * * * * * * 

Subchapter E—Multi-Region Combustion Control 

* * * * * * * 

Division 2—Cement Kilns 

Section 117.3100 ...... Applicability ........................................................... 5/30/2007 01/14/2009 [Insert FR 

page number where 

document begins].

Section 117.3101 ...... Cement Kilns Definitions ....................................... 5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

Section 117.3103 ...... Exemptions ............................................................ 5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

Section 117.3110 ...... Emission Specifications ........................................ 5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

Section 117.3120 ...... Source Cap ........................................................... 5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

Section 117.3123 ...... Dallas-Fort Worth Eight-Hour Ozone Attainment 

Demonstration Control Requirements.

5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

117.3123(f) not in SIP. 

Section 117.3140 ...... Continuous Demonstration of Compliance ........... 5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

Section 117.3142 ...... Emission Testing and Monitoring for Eight-Hour 

Attainment Demonstration.

5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

Section 117.3145 ...... Notification, Recordkeeping, and Reporting Requirements.5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

* * * * * * * 

Subchapter F—Acid Manufacturing 

* * * * * * * 

Division 3—Nitric Acid Manufacturing—General 

* * * * * * * 

Subchapter H—Administrative Provisions 

Division 1—Compliance Schedules 

* * * * * * * 

Section 117.9320 ...... Compliance Schedule for Cement Kilns ............... 5/30/2007 1/14/2009 [Insert FR 

page number where 

document begins].

* * * * * * * 


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* * * * * 

[FR Doc. E9–119 Filed 1–13–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 22, and 52 

[FAC 2005–29, Amendment–1; FAR Case 

2007–013; Docket 2008–0001; Sequence 2] 

RIN 9000–AK91 

Federal Acquisition Regulation; FAR 

Case 2007–013, Employment Eligibility 

Verification 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule; delay of effective and 

applicability dates. 

SUMMARY: The Department of Defense, 

General Services Administration, and 

National Aeronautics and Space 

Administration have agreed to delay the 

effective and applicability dates of FAR 

Case 2007–013, Employment Eligibility 

Verification, to January 19, 2009, and 

February 20, 2009, respectively. 

DATES: Effective Date: The effective date 

of FAC 2005–29, the final rule 

amending 48 CFR Parts 2, 22, and 52, 

published in the Federal Register on 

November 14, 2008, at 73 FR 67650, is 

delayed January 15, 2009, until January 

19, 2009. 

Applicability Date: The applicability 

date of FAC 2005–29 is delayed until 

February 20, 2009. 

Contracting officers shall not include 

the new clause at 52.222–54, 

Employment Eligibility Verification, in 

any solicitation or contract prior to the 

applicability date of February 20, 2009. 

On or after February 20, 2009, 

contracting officers— 

• Shall include the clause in 

solicitations in accordance with the 

clause prescription at 22.1803; and 

• Should modify, on a bilateral basis, 

existing indefinite-delivery/indefinitequantity contracts in accordance with 

FAR 1.108(d)(3) to include the clause 

for future orders if the remaining period 

of performance extends beyond August 

20, 2009, and the amount of work or 

number of orders expected under the 

remaining performance period is 

substantial. 

FOR FURTHER INFORMATION CONTACT: The 

FAR Secretariat at (202) 501–4755 for 

further information pertaining to status 

or publication schedule. Please cite FAC 

2005–29 (delay of effective and 

applicability dates). 

SUPPLEMENTARY INFORMATION: This 

document extends to January 19, 2009, 

the effective date of the E-Verify rule, in 

order to comply with the Congressional 

Review Act (5 U.S.C. 801(a)(3)(A)). 

Although this rule was published in the 

Federal Register on November 14, 2008 

(73 FR 67650), it was not received by 

Congress until November 19, 2008. 

Because of pending litigation, the 

applicability date for the regulation is 

being extended until February 20, 2009. 

Federal Acquisition Circular 

Federal Acquisition Circular (FAC) 

2005–29, Amendment-1, is issued under 

the authority of the Secretary of 

Defense, the Administrator of General 

Services, and the Administrator for the 

National Aeronautics and Space 

Administration. 

The Federal Acquisition Regulation 

(FAR) contained in FAC 2005–29 is 

effective January 19, 2009, and 

applicable February 20, 2009. 

Dated: January 9, 2009. 

Linda W. Neilson, 

Acting Deputy Director, Defense Procurement 

(Defense Acquisition Regulations System). 

Dated: January 9, 2009. 

David A. Drabkin, 

Senior Procurement Executive & Deputy Chief 

Acquisition Officer, U.S. General Services 

Administration. 

Dated: January 9, 2009. 

William P. McNally, 

Assistant Administrator for Procurement, 

National Aeronautics and Space 

Administration. 

[FR Doc. E9–651 Filed 1–13–09; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 071128765–81658–02] 

RIN 0648–AW32 

Endangered and Threatened Wildlife 

and Plants; Endangered Status for 

Black Abalone 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: Following completion of an 

Endangered Species Act (ESA) status 

review for black abalone (Haliotis 

cracherodii), we, NOAA’s National 

Marine Fisheries Service (NMFS), 

published a proposed rule to list black 

abalone as endangered on January 11, 

2008. After considering public 

comments on the proposed rule, we 

issue this final rule to list black abalone 

as endangered under the ESA. We also 

solicit information relevant to the 

designation of critical habitat for black 

abalone. 

DATES: Effective February 13, 2009. 

ADDRESSES: You may submit 

information by any of the following 

methods: 

• Federal Rulemaking Portal: 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 1–562–980–4027, Attention: 

Melissa Neuman. 

• Mail: Submit written information to 

Chief, Protected Resources Division, 

Southwest Region, National Marine 

Fisheries Service, 501 West Ocean 

Blvd., Suite 4200, Long Beach, CA 

90802–4213. 

Reference materials regarding this 

determination can be obtained via the 

Internet at: http:// 

www.swr.nmfs.noaa.gov (go to ‘‘Latest 

News’’/‘‘News Archives’’/January 2008). 

A request may also be submitted to the 

Assistant Regional Administrator, 

Protected Resources Division, 

Southwest Region, NMFS, 501 West 

Ocean Blvd., Suite 4200, Long Beach, 

CA 90802–4213. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Neuman, NMFS, Southwest 

Region (562) 980–4115; or Lisa 

Manning, NMFS, Office of Protected 

Resources (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

Black abalone was added to the 

National Marine Fisheries Service’s 

(NMFS’) Candidate Species List on June 

23, 1999 (64 FR 33466), and transferred 

to the NMFS’ Species of Concern List on 

April 15, 2004 (69 FR 19975). We 

initiated an informal ESA status review 

of black abalone on July 15, 2003, and 

formally announced initiation of a 

status review on October 17, 2006 (71 

FR 61021), at the same time soliciting 

information from the public on the 

status of and threats facing black 

abalone. On December 27, 2006, we 

received a petition from the Center for 

Biological Diversity (CBD) to list black 

abalone as either an endangered or 

threatened species under the ESA and to 

designate critical habitat for the species 

concurrently with any listing 


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