Approval and Promulgation of State Implementation Plan, Texas: Recodification of Regulations to Control Lead Emissions From Stationary Sources

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX90-1-7360a; FRL-6160-2]

Approval and Promulgation of State Implementation Plan, Texas:

Recodification of Regulations to Control Lead Emissions From Stationary

Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: In this action, the EPA is approving the recodification of the

Texas State Implementation Plan (SIP) regulations controlling emissions

of lead from stationary sources. The recodification consists of a

renumbering of the sections and administrative changes to the rules.

There are no substantive changes to the rules.

If relevant adverse comments are received on this approval, the EPA

will publish a document informing the public that the direct final rule

will not take effect, and address the relevant comments received in a

subsequent final rule, based on the related proposed rule. No

additional opportunity for public comment will be provided.

DATES: This action is effective on December 21, 1998 unless adverse or

critical comments are received by November 20, 1998. If EPA receives

such comments, it will publish a timely withdrawal in the Federal

Register to inform the public that this rule will not take effect.

ADDRESSES: Written comments should be addressed to Mr. Thomas H. Diggs,

Chief, Air Planning Section (6PD-L), at the EPA Regional Office listed

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

available for public inspection during normal business hours at the

following locations. Interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least 24 hours before the visiting day.

Environmental Protection Agency, Region 6, Multimedia Planning and

Permitting Division, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-

2733.

Texas Natural Resource Conservation Commission (TNRCC), 12100 Park

35 Circle, Building F, Austin, Texas 78753.

Documents which are incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

Center, Environmental Protection Agency, 401 M Street, SW, Washington,

DC 20460.

FOR FURTHER INFORMATION CONTACT: Lt. Mick Cote, Region 6 Air Planning

Section at the above address, telephone (214) 665-7219.

SUPPLEMENTARY INFORMATION:

I. Background

In a letter dated August 21, 1997, the Governor of Texas submitted

a recodification of the Texas SIP rules controlling emissions of lead

from stationary sources. The current 30 Texas Administrative Code

(TAC), Chapter 113, Subchapter B, Section citations and the

corresponding recodified citations are listed below.

There have been no substantive changes made to the rules.

Administrative changes have been made which update the name of the

agency and reflect that the original compliance dates were long passed

for facilities affected at the time of the original adoption of the

rules.

The Texas lead regulations were previously approved on August 13,

1984, in 49 FR 32184; and August 15, 1984, in 49 FR 32577. At that

time, no action was taken on 30 TAC Chapter 113, Sections 111, 112,

113, and 114. The EPA is now merely approving the renumbering system

submitted by the State, and continues to take no action on Section 111,

112, 113, and 114.

31 TAC Chapter 113 Subchapter B: Lead From Stationary Sources

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Current citation Recodified citation Title

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Nonferrous Smelters in El Paso County

113.41.................. 113.31 Maintenance and Operation of Control Equipment.

113.42.................. 113.32 Areas Accessible to the General Public.

113.43.................. 113.33 Control of Fugitive Dust.

113.51.................. 113.34 Materials Handling and Transfer.

113.52.................. 113.35 Smelting of Lead.

113.53.................. 113.36 Smelting of Copper and Zinc.

113.71.................. 113.37 Lead Emissions Limits for Stacks.

Lead Smelters in Dallas County.

113.81.................. 113.41 Maintenance and Operation of Control Equipment.

113.83.................. 113.42 Storage of Lead-Containing Materials.

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113.84.................. 113.43 Transport of Materials.

113.85.................. 113.44 Fugitive Emissions from Lead Processes.

113.87.................. 113.45 Battery or Lead Reclaiming Operations.

113.88.................. 113.46 Lead Emission Limits for Reverberatory Furnaces and Blast Furnaces.

113.91.................. 113.47 Control of Fugitive Dust.

113.92.................. 113.48 Additional Measures to Reduce Lead Emissions.

Alternate Controls

113.111................. 113.51 Alternate Means of Control in El Paso County.

113.112................. 113.52 Alternate Emission Reductions in El Paso County.

113.113................. 113.53 Alternate Means of Control in Dallas County.

113.114................. 113.54 Alternate Emission Reductions in Dallas County.

Compliance and Control Plan Requirements

113.121................. 113.61 Compliance with Other Rules in El Paso County.

113.122................. 113.62 Dates for Control Plan Submission and for Final Compliance in El Paso County.

113.123................. 311.63 Control Plan Procedure in El Paso County.

113.124................. 113.64 Reporting Procedure in El Paso County.

113.125................. 113.65 Compliance with Other Rules in Dallas County.

113.126................. 113.66 Dates for Control Plan Submission and for Final Compliance in Dallas County.

113.127................. 113.67 Control Plan Procedure in Dallas County.

113.128................. 113.68 Reporting Procedure in Dallas County.

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II. Final Action

By this action, the EPA is approving the recodification of the

Texas SIP regulations controlling emissions of lead from stationary

sources.

The EPA has not reviewed the substance of these regulations at this

time. These rules were approved into the SIP in previous rulemakings.

The EPA is now merely approving the renumbering system submitted by the

State. The EPA's approval of the renumbering system, at this time, does

not imply any position with respect to the approvability of the

substantive rules. To the extent the EPA has issued any SIP calls to

the State with respect to the adequacy of any of the rules subject to

this recodification, the EPA will continue to require the State to

correct any such rule deficiencies despite the EPA's approval of this

recodification.

The EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, the EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

relevant adverse comments be filed. This rule will be effective

December 21, 1998 without further notice unless, by November 20, 1998,

relevant adverse comments are received.

If EPA receives such comments, 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 the proposed action. The

EPA will not institute a second comment period. 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 December 21, 1998.

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.

III. Administrative Requirements

A. Executive Orders (E.O.) 12866 and 13045

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.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because conditional approvals of

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

Air Act 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 this action will not have a significant economic impact on a

substantial number of small entities. Moreover, due to the nature of

the Federal-State relationship under the Clean Air Act, preparation of

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co., v.

U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in estimated costs to State, local, or

tribal governments in the aggregate; or to private sector, of $100

million or more. Under section 205, EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory

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requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

preexisting requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

Since this action does not impose any mandate, it is also not subject

to Executive Order 12875 concerning Federal mandates.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. section 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of this rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. section 804(2).

E. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under Executive Order 12866 entitled,

``Regulatory Planning and Review.''

F. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

G. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, representatives of Indian tribal governments

``to provide meaningful and timely input in the development of

regulatory policies on matters that significantly or uniquely affect

their communities.'' Today's rule does not significantly or uniquely

affect the communities of Indian tribal governments. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

H. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under

Executive Order 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

I. Petitions for Judicial Review

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

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

the appropriate circuit by December 21, 1998. Filing a petition for

reconsideration by the Administrator of this conditional interim 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).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Lead, Particulate matter, Reporting and recordkeeping

requirements.

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: September 2, 1998.

Jerry Clifford,

Acting 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. 7401-7671q.

Subpart SS--Texas

2. Section 52.2270 is amended by adding paragraph (c)(114) to read

as follows:

Sec. 52.2270 Identification of Plan.

* * * * *

(c) * * *

(114) Recodified regulations of Texas Administrative Code, Title

30, Chapter 113, Subchapter B, controlling lead emissions from

stationary sources, and submitted by the Governor in a letter dated

August 21, 1997.

(i) Incorporation by reference.

(A) Texas Natural Resource Conservation Commission (TNRCC) order

adopting amendments to the State Implementation Plan; Docket Number 97-

0143-RUL, issued July 9, 1997.

(B) Texas Administrative Code, Title 30, Chapter 113, Subchapter B,

entitled ``Lead from Stationary Sources,'' adopted by the TNRCC on July

9, 1997. Newly recodified sections 113.31, 113.32, 113.33, 113.34,

113.35, 113.36, 113.37, 113.41, 113.42, 113.43, 113.44, 113.45, 113.46,

113.47, 113.48, 113.52, 113.61, 113.62, 113.63, 113.64, 113.65, 113.66,

113.67, and 113.68.

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(ii) Additional material. TNRCC certification letter dated June 25,

1997, and signed by Gloria Vasquez, Chief Clerk, TNRCC.

[FR Doc. 98-28114 Filed 10-20-98; 8:45 am]

BILLING CODE 6560-50-P