Approval and Promulgation of Air Quality Implementation Plans; Texas; Site Specific Particulate Control Plan for ASARCO, El Paso

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-30-1-6527a; FRL-5069-6]

Approval and Promulgation of Air Quality Implementation Plans;

Texas; Site Specific Particulate Control Plan for ASARCO, El Paso

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves a revision to the Texas State

Implementation Plan (SIP) addressing a request for a waiver from

certain industrial roadway paving for the ASARCO copper smelter in El

Paso, Texas. Specifically, in lieu of paving, this action approves an

alternate particulate control plan for certain industrial unpaved roads

at the El Paso ASARCO copper smelter.

DATES: This final rule will become effective on November 14,

1994,unless notice is received by October 17, 1994, that someone wishes

to submit adverse or critical comments. If the effective date is

delayed, timely notice will be published in the Federal Register (FR).

ADDRESSES: Written comments on this action should be addressed to Mr.

Thomas H. Diggs, Chief, Planning Section, at the EPA Regional Office

listed below. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

following locations. The interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least twenty-four hours before the visiting day.

U.S. Environmental Protection Agency, Region 6, Air Programs Branch

(6T-A), 1445 Ross Avenue, suite 700, Dallas, Texas 75202.

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. Mark Sather, Planning Section (6T-

AP), Air Programs Branch, USEPA Region 6, 1445 Ross Avenue, Dallas,

Texas 75202-2733, telephone (214) 655-7258.

SUPPLEMENTARY INFORMATION:

Background

When the EPA approved the El Paso moderate area PM-10 (particulate

matter with an aerodynamic diameter less than or equal to a nominal 10

micrometers) SIP on January 18, 1994 (please reference 59 FR 2532),

certain sections of Texas Regulation I were incorporated by reference

into the Texas SIP. One such section was 111.147 concerning particulate

control for roads, streets and alleys, the first part reading as

follows:

111.147. Roads, Streets, and Alleys.

No person may cause, suffer, allow, or permit any public,

industrial, commercial, or private road, street, or alley to be used

without taking at least the following precautions to achieve control

of dust emissions:

(1) Application of asphalt, water, or suitable oil or chemicals

on the following unpaved surfaces, except in the City of El Paso (El

Paso) and the Fort Bliss Military Reservation, except as noted in

Section 111.141 of this title (relating to Geographic Areas of

Application and Date of Compliance), where the use of paving

materials is the only acceptable method of dust control, unless

otherwise specified:

(A) Industrial Facility Roadways--all major inplant roads and

all truck or other heavy-duty vehicle pathways. Major in-plant roads

shall be defined as those which are designed to accommodate two-way

traffic and are at least 30 feet wide at at least one point,

measuring the distance from the edge of the undisturbed earth on

either side of the established roadway. The Executive Director, with

the concurrence of the United States Environmental Protection

Agency, may grant a waiver from the requirement to pave an

industrial facility roadway if the owner of the roadway demonstrates

that the cost of paving is economically unreasonable compared to

other methods of dust control specified in subsection (1) * * *

On January 30, 1992, as per section 111.147(1)(A), ASARCO requested

a waiver from paving the slag haul road and certain segments of other

low-traffic roads at its El Paso copper smelter. In order for the

Executive Director of the Texas Natural Resource Conservation

Commission (TNRCC) and the EPA to grant the waiver, ASARCO had to

adequately demonstrate that the cost of paving was economically

unreasonable compared to other methods of dust control (i.e., the use

of water or water/chemical dust suppressant mixtures).

Analysis of State Submission

A. Procedural Background

The Clean Air Act (CAA) requires States to observe certain

procedural requirements in developing implementation plans for

submission to the EPA. Section 110(a)(2) of the CAA provides that each

implementation plan submitted by a State must be adopted after

reasonable notice and public hearing (see also section 110(l) of the

CAA). Also, the EPA must determine whether a submittal is complete, and

therefore warrants further EPA review and action (see section 110(k)(1)

and 57 FR 13565). The EPA's completeness criteria for SIP submittals

are set out at 40 CFR part 51, appendix V. The EPA attempts to make

completeness determinations within 60 days of receiving a submission.

However, a submittal is deemed complete by operation of law if a

completeness determination is not made by the EPA six months after

receipt of the submission.

After providing adequate notice, the State of Texas held a public

hearing on February 18, 1992, to entertain public comment on Permit No.

20345 for ASARCO Inc., El Paso. Following the public hearing, Permit

No. 20345 was approved by the Texas Air Control Board (TACB) on May 8,

1992. Earlier, on January 30, 1992, ASARCO requested a waiver from

paving certain industrial roadways at its El Paso copper smelter. The

TNRCC, formerly the Texas Air Control Board (TACB), adopted the waiver

on March 9, 1994, in a Commission Order. This Order also sets out an

alternate particulate control plan for certain unpaved industrial roads

at ASARCO based on Permit No. 20345. The Order was submitted as a SIP

revision to the EPA by cover letter from the Governor dated March 30,

1994.

The SIP revision was reviewed by the EPA to determine completeness

shortly after its submittal, in accordance with the completeness

criteria referenced above. A letter dated May 19, 1994, was forwarded

to the Governor indicating the completeness of the submittal and the

next steps to be taken in the review process.

B. Review of ASARCO Waiver Request

In the March 30, 1994, SIP revision package from the Governor,

substantial documentation was provided showing that the cost of paving

the slag haul road and other industrial roadways at the El Paso ASARCO

copper smelter was indeed economically unreasonable compared to

alternate particulate control methods. The EPA has reviewed ASARCO's

cost calculations and finds that the calculations indeed adequately

demonstrate that the cost of paving the slag haul road and certain

other industrial vehicle routes is economically unreasonable compared

to the cost of using other acceptable particulate control methods (i.e.

water and chemicals). In addition, the alternate particulate control

plan provides for adequate PM-10 emission reductions, indeed, more

reductions than paving would provide. Following are summary tables of

the cost comparisons and PM-10 emission reductions: Slag Haul Road:

Uncontrolled PM-10 emissions=2.31 tons/year (t/y)

------------------------------------------------------------------------

Actual PM-

Cost/ton 10

Control method of PM-10 reductions

reduced obtained

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Paving.......................................... $199,000 0.94 t/y

Daily watering + chemical spray................. 23,000 1.62 t/y

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Other Roads: Uncontrolled PM-10 emissions=9.84 t/y

------------------------------------------------------------------------

Actual PM-

Cost/ton 10

Control method of PM-10 reductions

reduced obtained

------------------------------------------------------------------------

Paving.......................................... $42,000 2.19 t/y

Continuous wetting + chemical spray............. 16,000 9.84 t/y

------------------------------------------------------------------------

In conducting their analysis, ASARCO used the emission factor

calculations from the EPA document entitled ``Compilation of Air

Pollution Emission Factors (AP-42)'', and conducted on-site silt

sampling from the slag haul road and four other industrial vehicle

routes.

In lieu of paving, ASARCO will use the following as alternate

particulate control methods for the slag haul road and other applicable

unpaved roads: (1) Continuous wetting using an automatic sprinkler

system; or (2) daily watering and twice weekly application of a

chemical oil spray. ASARCO must maintain a log record for a two year

period showing the amount of water and chemical applied daily for

unpaved roads not maintained in a continuously wetted condition. These

dust control methods are described in federally enforceable permit No.

20345, Special Provisions 31 and 33, and in the enclosure to a June 8,

1993, letter from the TACB to the EPA. The June 8, 1993, letter is

being approved in this action as incorporation by reference material.

Final Action

This action approves a revision to the Texas SIP to include an

alternate particulate control plan (in lieu of paving) for certain

industrial unpaved roads at the El Paso ASARCO copper smelter. In

approving this alternate control plan, the EPA concurs with the State

of Texas in granting a waiver from certain industrial roadway paving

for the ASARCO copper smelter in El Paso as per Texas Regulation I,

Sec. 111.147(1)(A). The EPA concurs with the Executive Director of the

TNRCC that the El Paso ASARCO copper smelter has adequately

demonstrated that the cost of paving certain industrial roadways is

economically unreasonable compared to the cost of other methods of dust

control (i.e., the use of water or water/chemical dust suppressant

mixtures).

The EPA has reviewed these revisions to the Texas SIP and is

approving them as submitted. The EPA is publishing this action without

prior proposal because the Agency views this as a noncontroversial

amendment and anticipates no adverse comments. However, in a separate

document in this Federal Register publication, the EPA is proposing to

approve the SIP revision should adverse or critical comments be filed.

Thus, this action will be effective November 14, 1994, unless, by

October 17, 1994 notice is received that adverse or critical comments

will be submitted.

If such notice is received, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective November 14, 1994.

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. versus U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42

U.S.C. 7410(a)(2)).

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 November 14, 1994. 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).)

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, Incorporation by

reference, Particulate matter.

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: August 26, 1994.

W.B. Hathaway,

Acting Regional Administrator (6A).

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)(83) to read

as follows:

Sec. 52.2270 Identification of plan.

* * * * *

(c) * * *

(83) A revision to the Texas SIP to include an alternate

particulate control plan for certain unpaved industrial roadways at the

ASARCO copper smelter in El Paso, submitted by the Governor by cover

letter dated March 30, 1994.

(i) Incorporation by reference.

(A) Texas Natural Resource Conservation Commission Order No. 94-01,

as adopted by the Texas Natural Resource Conservation Commission on

March 9, 1994.

(B) TNRCC Attachment 3 containing the Texas Air Control Board

permit number 20345 for the ASARCO primary copper smelter in El Paso,

Texas, issued May 11, 1992.

(C) TNRCC Attachment 4 containing the June 8, 1993, letter from Mr.

Troy W. Dalton, Texas Air Control Board (TACB), to Mr. Thomas Diggs,

U.S. EPA Region 6, addressing the ASARCO Inc. (El Paso) waiver request

from TACB Regulation I, Section 111.147(1)(A), including the enclosure

entitled ``Waiver Provisions to Texas Air Control Board Regulation

111.147(1)(A) for ASARCO, Incorporated, El Paso Account No. EE-0007-

G.''

(ii) Additional material.

(A) March 9, 1994, SIP narrative addressing the alternate

particulate control plan (in lieu of paving) for certain unpaved

industrial roadways at the ASARCO copper smelter in El Paso.

[FR Doc. 94-22789 Filed 9-14-94; 8:45 am]

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