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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

Approval and Promulgation of Air Quality Implementation Plans;

Texas; Revision to the State Implementation Plan (SIP) Addressing

Visible Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On April 3, 1995 the EPA simultaneously published a direct

final rule and notice of proposed rulemaking in which EPA published its

decision to approve a revision to the Texas SIP addressing visible

emissions. During the 30-day comment period, the EPA received three

comment letters in response to the April 3, 1995, rulemaking. This

final rule summarizes comments and EPA's responses, and finalizes the

EPA's decision to approve the revisions to the visible emissions

regulations for Texas.

EFFECTIVE DATE: June 7, 1996.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

addresses listed below. The interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least 24 hours before the visiting day.

U.S. Environmental Protection Agency, Region 6, Air Planning

Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.

U.S. Environmental Protection Agency, Air and Radiation Docket and

Information Center, 401 M Street, SW., Washington, DC 20460.

Texas Natural Resource Conservation Commission, 12124 Park 35

Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas H. Diggs, Chief, Air

Planning Section (6PD-L), USEPA Region 6, 1445 Ross Avenue, Dallas,

Texas 75202-2733, telephone (214) 665-7214.

SUPPLEMENTARY INFORMATION:

Background

On April 3, 1995, the EPA published a direct final rulemaking

approving a revision to the existing Texas regulation concerning the

control of visible emissions (60 FR 16806). At the same time that the

EPA published the direct final rule, a separate notice of proposed

rulemaking was published in the Federal Register (60 FR 16829). This

proposed rulemaking specified that EPA would withdraw the direct final

rule if adverse or critical comments were filed on the rulemaking. The

EPA received three letters containing adverse comments regarding the

direct final rule within 30 days of publication of the proposed rule

and withdrew the direct final rule on June 5, 1995 (60 FR 29484).

The specific rationale EPA used to approve the revision to the

Texas visible emissions regulations is explained in the direct final

rule and will not be restated here. This final rule contained in this

Federal Register addresses the comments received during the public

comment period and announces EPA's final action regarding approval of

the visible emissions revisions.

Response to Public Comments

In the April 3, 1995, Federal Register, the EPA requested public

comments on the proposed/direct final rules (please reference 60 FR

16806-16808 and 60 FR 16829). The EPA received three adverse comment

letters dated May 3, 1995, and thus proceeded to withdraw the direct

final rule and adequately address each comment letter. The EPA's

response to each comment letter is detailed below.

1. A letter was received from Larry Feldcamp, Baker & Botts, LLP,

representing the Texas Industry Project (TIP). The TIP believed that

the Texas Regulation I provisions for visible emissions were

unwarranted, and that the EPA exceeded its statutory authority under

title I of the Clean Air Act as amended in 1990 (CAA) in proposing to

approve those provisions into the Texas SIP. The TIP believes that the

visible emissions provisions are not necessary for the attainment or

maintenance of any National Ambient Air Quality Standard (NAAQS) in

Texas. Further, the TIP is concerned that some visible emissions

provisions in Regulation I will cause more burdensome monitoring,

recordkeeping, reporting, and compliance certification requirements for

subject sources, since title V of the CAA incorporates SIP

requirements. Finally, the TIP expressed concern about federal suits

being available to enforce the visible emissions provisions, provisions

which the TIP believes should not be in the Texas SIP.

EPA's response to letter #1: Section 110(a)(1) of the CAA requires

States to provide plans for the implementation and maintenance, and

enforcement of primary and secondary criteria pollutant standards, and

for these plans to be submitted to EPA as part of the SIP. The visible

emissions revisions provide for maintenance of the particulate standard

statewide, and thus meet the intent of section 110(a)(1). Since EPA

believes that the visible emissions regulations provide for maintenance

of the particulate standard and strengthen the SIP as a whole,

incorporation of these revisions into the SIP is required under section

110. The EPA must take action on state SIP submittals to either approve

or disapprove the submittals. The EPA believes that the revised visible

emissions provisions in Texas Regulation I are approvable (note--the

existing Texas SIP contains visible emissions provisions in Texas

Regulation I). This approval will strengthen the Texas SIP by updating

the regulation. The EPA believes that

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without visible emissions provisions in the Texas SIP, certain NAAQS

(e.g. particulate, sulfur oxides, lead, ozone, and nitrogen dioxide)

could be threatened. Clearly, the presence of the visible emissions

provisions has resulted in particulate matter controls across the State

of Texas. For the important visible emissions provisions to be

eliminated from the Texas SIP, the State of Texas would have to submit

a modeling demonstration to the EPA showing that the NAAQS could be

attained and maintained in the State without the visible emissions

provisions in Regulation I. Also, the EPA believes that the opacity

provisions in Texas Regulation I provide visibility protection

(visibility is an air quality related value). In addition, opacity

limitations can be used as an indicator (or in some cases, as a

determinator) in judging compliance or noncompliance with particulate

matter (PM10) and other pollutant standards in the Texas SIP. Finally,

the EPA believes that the visible emissions provisions, along with the

Federal title V and the State permitting programs, allow for reasonable

flexibility in meeting monitoring, recordkeeping, reporting, and

compliance certification requirements so that an undue burden does not

fall upon subject sources. It is important to note that the original

enhanced monitoring proposal package, which provided for certain

monitoring, recordkeeping, reporting, and compliance certification

requirements, was withdrawn from the Office of Management and Budget on

April 3, 1995, was revised significantly, and is planned to be

reproposed in the Spring of 1996. The concerns about potentially

burdensome monitoring, recordkeeping, reporting, and compliance

certification requirements should be resolved under the new proposal

that the EPA, in conjunction with the States, local agencies, and the

regulated community, will produce.

It is the intent of section 110 of the CAA for States to develop an

effective SIP control strategy to ensure attainment and maintenance of

the NAAQS. One principle that must be adhered to is that the measures

contained in the SIP be federally enforceable. To be enforceable, a

legal means to ensure that sources remain in compliance with any

measures or rules contained in the SIP must be provided. Federal and

State suits are the legal means by which EPA ensures compliance with

SIP requirements.

2. A letter was received from Neil Carman representing the Sierra

Club (Lone Star Chapter). The Sierra Club supported the proposed action

to make federally enforceable the visible emissions provisions of Texas

Regulation I with one exception. The Sierra Club believed that the

Midlothian cement plants burning hazardous waste, or any cement plant

in Texas burning hazardous waste, should be subject to a more stringent

visible emissions standard than the grandfathered level of 30 percent

opacity. The Sierra Club also stated that the grandfathered status for

Texas Industries Inc. and North Texas Cement Company in Midlothian

should have been terminated when they were allowed to burn hazardous

waste.

3. A letter was received from Sue Pope representing Downwinders At

Risk (DAR). The DAR also believed that the Midlothian cement plants

burning hazardous waste should be subject to a more stringent visible

emissions standard than the grandfathered level of 30 percent opacity.

EPA's response to letters #2 and #3: The EPA will approve the

current provisions in order to strengthen the Texas SIP. There are

currently 4 PM10 monitors operating in the city of Midlothian, Texas.

The data collected from these monitors indicate levels far below the

annual and 24-hour PM10 NAAQS of 50 micrograms per cubic meter and 150

micrograms per cubic meter, respectively. EPA believes that these more

stringent visible emissions regulations will ensure protection of the

PM10 NAAQS in Midlothian. It is important to note that EPA continues to

participate in meetings with the Sierra Club and DAR concerning

Midlothian air quality concerns.

Final Rulemaking Action

In this final action EPA is promulgating a revision to Texas

Regulation I addressing visible emissions. This revision updates the

Texas SIP and strengthens the provisions of Texas Regulation I. This

revision was submitted by the Governor to the EPA by letters dated

August 21, 1989, January 29, 1991, October 15, 1992 and August 4, 1993.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors, and in relation to relevant statutory and

regulatory requirements.

Miscellaneous

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, the EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D, of the

CAA do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the Federal-State relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

CAA forbids the EPA to base its actions concerning SIPs on such grounds

(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42

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

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,

the EPA must undertake various actions in association with proposed or

final rules that include a Federal mandate that may result in estimated

costs of $100 million or more to the private sector, or to state,

local, or tribal governments in the aggregate.

Through submission of this SIP or plan revision, the State and any

affected local or tribal governments have elected to adopt the program

provided for under section 110 of the CAA. These rules may bind the

State, local and tribal governments to perform certain actions and also

require the private sector to perform certain duties. To the extent

that the rules being approved by this action will impose no new

requirements, such sources are already subject to these regulations

under the State law. Accordingly, no additional costs to the State,

local, or tribal governments, or to the private sector, result from

this action. The EPA has also determined that this final action does

not include a mandate that may result in estimated costs of $100

million or more to the State, local, or tribal governments in the

aggregate or to the private sector.

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by July 8, 1996. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the

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finality of this rule for the purposes of judicial review nor does it

extend the time within which a petition for judicial review may be

filed, and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements (see section 307(b)(2)).

Executive Order

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping requirements, Sulfur dioxide,

Volatile organic compounds.

Note: Incorporation by reference of the SIP for the State of

Texas was approved by the Director of the Federal Register on July

1, 1982.

Dated: April 17, 1996.

Allyn M. Davis,

Acting Regional Administrator.

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart SS--Texas

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

as follows:

Sec. 52.2270 Identification of plan.

* * * * *

(c) * * *

(94) Revisions to the Texas SIP addressing visible emissions

requirements were submitted by the Governor of Texas by letters dated

August 21, 1989, January 29, 1991, October 15, 1992 and August 4, 1993.

(i) Incorporation by reference.

(A) Revisions to Texas Air Control Board (TACB), Regulation I,

Section 111.111, ``Requirements for Specified Sources;'' Subsection

111.111(a) (first paragraph) under ``Visible Emissions;'' Subsections

111.111(a)(1) (first paragraph), 111.111(a)(1)(A), 111.111(a)(1)(B) and

111.111(a)(1)(E) under ``Stationary Vents;'' Subsection 111.111(b)

(first paragraph) under ``Compliance Determination Exclusions;'' and

Subsections 111.113 (first paragraph), 111.113(1), 111.113(2), and

111.113(3) under ``Alternate Opacity Limitations,'' as adopted by the

TACB on June 16, 1989.

(B) TACB Board Order No. 89-03, as adopted by the TACB on June 16,

1989.

(C) Revisions to Texas Air Control Board (TACB), Regulation I,

Section 111.111, ``Requirements for Specified Sources;'' Subsections

111.111(a)(4)(A) and 111.111(a)(4)(B)(i) under ``Railroad Locomotives

or Ships;'' Subsections 111.111(a)(5)(A) and 111.111(a)(5)(B)(i) under

``Structures;'' and Subsections 111.111(a)(6)(A) and

111.111(a)(6)(B)(i) under ``Other Sources,'' as adopted by the TACB on

October 12, 1990.

(D) TACB Board Order No. 90-12, as adopted by the TACB on October

12, 1990.

(E) Revisions to Texas Air Control Board (TACB), Regulation I,

Section 111.111, ``Requirements for Specified Sources;'' Subsections

111.111(a)(1)(C), 111.111(a)(1)(D), 111.111(a)(1)(F) (first paragraph),

111.111(a)(1)(F)(i), 111.111(a)(1)(F)(ii), 111.111(a)(1)(F)(iii),

111.111(a)(1)(F)(iv), and 111.111(a)(1)(G) under ``Stationary Vents;''

Subsections 111.111(a)(2) (first paragraph), 111.111(a)(2)(A),

111.111(a)(2)(B), and 111.111(a)(2)(C) under ``Sources Requiring

Continuous Emissions Monitoring;'' Subsection 111.111(a)(3) (first

paragraph) under ``Exemptions from Continuous Emissions Monitoring

Requirements;'' Subsection 111.111(a)(4), ``Gas Flares,'' title only;

Subsection 111.111(a)(5) (first paragraph) under ``Motor Vehicles;''

Subsections 111.111(a)(6)(A), 111.111(a)(6)(B) (first paragraph),

111.111(a)(6)(B)(i) and 111.111(a)(6)(B)(ii) under ``Railroad

Locomotives or Ships'' (Important note, the language for

111.111(a)(6)(A) and 111.111(a)(6)(B)(i) was formerly adopted as

111.111(a)(4)(A) and 111.111(a)(4)(B)(i) on October 12, 1990);

Subsections 111.111(a)(7)(A), 111.111(a)(7)(B) (first paragraph),

111.111(a)(7)(B)(i) and 111.111(a)(7)(B)(ii) under ``Structures''

(Important note, the language for 111.111(a)(7)(A) and

111.111(a)(7)(B)(i) was formerly adopted as 111.111(a)(5)(A) and

111.111(a)(5)(B)(i) on October 12, 1990); and Subsections

111.111(a)(8)(A), 111.111(a)(8)(B) (first paragraph),

111.111(a)(8)(B)(i) and 111.111(a)(8)(B)(ii) under ``Other Sources''

(Important note, the language for 111.111(a)(8)(A) and

111.111(a)(8)(B)(i) was formerly adopted as 111.111(a)(6)(A) and

111.111(a)(6)(B)(i) on October 12, 1990), as adopted by the TACB on

September 18, 1992.

(F) TACB Board Order No. 92-19, as adopted by the TACB on September

18, 1992.

(G) Revisions to Texas Air Control Board (TACB), Regulation I,

Section 111.111, ``Requirements for Specified Sources;'' Subsections

111.111(a)(4)(A) (first paragraph), 111.111(a)(4)(A)(i),

111.111(a)(4)(A)(ii), and 111.111(a)(4)(B) under ``Gas Flares,'' as

adopted by the TACB on June 18, 1993.

(H) TACB Board Order No. 93-06, as adopted by the TACB on June 18,

1993.

(ii) Additional material.

(A) TACB certification letter dated July 27, 1989, and signed by

Allen Eli Bell, Executive Director, TACB.

(B) TACB certification letter dated January 9, 1991, and signed by

Steve Spaw, Executive Director, TACB.

(C) TACB certification letter dated October 1, 1992, and signed by

William Campbell, Executive Director, TACB.

(D) TACB certification letter dated July 13, 1993, and signed by

William Campbell, Executive Director, TACB.

[FR Doc. 96-11399 Filed 5-7-96; 8:45 am]

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