Approval and Promulgation of Implementation Plans; Texas; Control of Air Pollution From Volatile Organic Compounds, Miscellaneous Industrial Sources, Cutback Asphalt

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-115-1-7434a; FRL-6504-4]

Approval and Promulgation of Implementation Plans; Texas; Control

of Air Pollution From Volatile Organic Compounds, Miscellaneous

Industrial Sources, Cutback Asphalt

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action on revisions to the

Texas State Implementation Plan (SIP). These revisions concern Control

of Air Pollution from Volatile Organic Compounds (VOC), Miscellaneous

Industrial Sources, specifically, asphaltic operations in the Nueces

County and the ozone nonattainment areas. The EPA is approving these

revisions to regulate emissions of VOCs in accordance with the

requirements of the Federal Clean Air Act (the Act).

DATES: This rule is effective on February 22, 2000, without further

notice, unless EPA receives adverse comment by January 21, 2000. If EPA

receives such comment, EPA will publish a timely withdrawal in the

Federal Register informing the public that this rule will not take

effect.

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

Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region

6 Office listed below. Copies of documents relevant to this action,

including the Technical Support Document (TSD), are available for

public inspection during normal business hours at the following

locations. Anyone wanting to examine these documents should make an

appointment with the appropriate office at least two working days in

advance.

Environmental Protection Agency, Region 6, Air Planning Section (6PD-

L), 1445 Ross Avenue, Dallas, Texas 75202-2733.

Texas Natural Resource Conservation Commission, Office of Air Quality,

12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, P.E., Air Planning

Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-

2733, telephone (214) 665-6691.

Table of Contents

1. What action is EPA taking?

2. What is cutback asphalt?

3. Why do we regulate VOCs?

4. Where can I find EPA guidelines on cutback asphalt?

5. What are the asphalt rule changes?

6. What is a nonattainment area?

7. What is a State Implementation Plan?

8. What is the Federal approval process for a SIP?

9. What does Federal approval of a SIP mean to me?

10. What are advantages of adopting this rule?

11. What test methods will Texas use to determine compliance

with the VOC content requirements?

12. What are the Subchapter F requirements for cutback asphalt?

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and

``our'' means EPA.

[[Page 71667]]

1. What Action Is EPA Taking?

On August 31, 1999, the Governor of Texas submitted the Subchapter

F, ``Miscellaneous Industrial Sources,'' of Chapter 115, ``Control of

Air Pollution From Volatile Organic Compounds,'' as a revision to the

SIP. This rule making will specifically approve revisions to sections

115.512 concerning Control Requirements, 115.513 concerning Alternate

Control Requirements, 115.515 concerning Testing Requirements, and

115.516 concerning Recordkeeping Requirements. Also, we are approving a

new section 115.510 concerning definitions of ``cutback asphalt,''

``conventional cutback asphalt,'' ``exempt cutback asphalt,'' and

``asphalt emulsion.'' In this document we are approving revisions to

the Texas SIP concerning control of VOC emissions from asphaltic

operations in Nueces County and ozone nonattainment areas. The County

of Nueces is not classified as a nonattainment area for ozone. The

ozone nonattainment areas include the Houston/Galveston (H/G),

Beaumont/Port Arthur (B/PA), Dallas Fort Worth (DFW), and El Paso (EP).

For more information on the SIP revision and EPA's evaluation, please

refer to our TSD dated October 1999.

In the ``Final Action'' section of this document we state that we

are publishing this rule without prior proposal and EPA is planning to

approve this action without further notice.

2. What Is Cutback Asphalt?

If you liquify paving asphalt (asphaltic cement) with petroleum

distillates, you will have cutback asphalt (liquified asphalt). Cutback

asphalt contains a significant amount of light petroleum solvents such

as kerosene, diesel, or naphtha. These solvents or diluents are added

to the asphalt either at the refinery or the asphalt plant. As a

result, cutback asphalt can be a significant source of VOCs.

3. Why Do We Regulate VOCs?

Oxygen in the atmosphere reacts with VOCs and Oxides of Nitrogen to

form ozone, a key component of urban smog. Inhaling even low levels of

ozone can trigger a variety of health problems including chest pains,

coughing, nausea, throat irritation, and congestion. It also can worsen

bronchitis and asthma. Exposure to ozone can also reduce lung capacity

in healthy adults.

4. Where Can I Find EPA Guidelines on Cutback Asphalt?

You can find our guidelines on cutback asphalt in the document

number EPA-450/2-77-037--``Control of Volatile Organic Compounds from

Use of Cutback Asphalt.''

5. What Are the Asphalt Rule Changes?

The intended purpose of this rule is to reduce VOC emissions.

Specifically, this rule revision applies to sources located or

operating in the Nueces county, Texas. The county of Nueces is

classified as an attainment area for ozone. This rule will limit the

VOC volume on cutback use in the Nueces county from 8 to 7 percent.

This revision will make the volume limitation for cutback use in the

Nueces county more consistent with the volume limitation for cutback

use in the ozone nonattainment areas.

This rule will replace the term ``emulsified asphalt'' with the

term ``alternative asphalt'' for sources located or operating in both

the DFW, EP, B/PA, and H/G ozone nonattainment areas and the Nueces

county. See section 115.510.

Control requirements in section 115.512 for the DFW, EP, B/PA, and

H/G ozone nonattainment areas remain the same as the control

requirements in the existing federally approved SIP for Texas. The only

change to the control requirements in section 115.512 is lowering of

the volume limitation for cutback use in the Nueces county.

If you are in the Nueces county or any of the above-mentioned

nonattainment areas, you should refer to the rule to determine if and

how this rule will affect you.

For detailed evaluation of the asphalt rule changes, please see

pages 2 and 3 of our TSD dated October 1999.

6. What Is a Nonattainment Area?

A nonattainment area is a geographic area in which the level of a

criteria air pollutant is higher than the level allowed by Federal

standards. A single geographic area may have acceptable levels of one

criteria air pollutant but unacceptable levels of one or more other

criteria air pollutants; thus, a geographic area can be attainment for

one criteria pollutant and nonattainment for another criteria pollutant

at the same time. It has been estimated that 60 percent of Americans

live in nonattainment areas. The H/G, DFW, EP, and B/PA are

nonattainment areas for ozone.

7. What Is a State Implementation Plan?

Section 110 of the Act requires states to develop air pollution

regulations and control strategies to ensure that State air quality

meets the National Ambient Air Quality Standards (NAAQS) established by

the EPA. The NAAQS are established under section 109 of the Act to

protect public health, and they address six criteria pollutants. These

criteria pollutants are: carbon monoxide, nitrogen dioxide, ozone,

lead, particulate matter, and sulfur dioxide.

Each State must submit these regulations and control strategies to

us for approval and incorporation into the federally enforceable SIP.

Each State has a SIP designed to protect air quality. These SIPs can be

extensive, containing State regulations or other enforceable documents

and supporting information such as emission inventories, monitoring

networks, and modeling demonstrations.

8. What Is the Federal Approval Process for a SIP?

In order for State regulations to be incorporated into the

federally enforceable SIP, States must formally adopt the regulations

and control strategies consistent with State and Federal requirements.

This process includes a public notice, a public hearing, a public

comment period, and a formal adoption by a state-authorized rulemaking

body.

Once a State rule, regulation, or control strategy is adopted, the

State may submit the adopted provisions to us and request that these

provisions be included in the federally enforceable SIP. We must then

decide on an appropriate Federal action, provide public notice on this

action, and seek additional public comment regarding this action. If

adverse comments are received, we must address them prior to a final

action.

All State regulations and supporting information approved by us

under section 110 of the Act are incorporated into the federally

approved SIP. Records of these SIP actions are maintained in the Code

of Federal Regulations (CFR) at Title 40, part 52, entitled ``Approval

and Promulgation of Implementation Plans.'' The actual State

regulations which were approved are not reproduced in their entirety in

the CFR but are ``incorporated by reference,'' which means that we have

approved a given State regulation with a specific effective date.

9. What Does Federal Approval of a SIP Mean to Me?

Enforcement of the State regulation before and after it is

incorporated into federally approved SIP is primarily a State function.

However, once the regulation is federally approved, we and the public

may take enforcement action

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against violators of these regulations if the State fails to do so.

10. What Are Advantages of Adopting This Rule?

Adopting this rule will have the following advantages: (1) Reduces

the VOC content of the asphalt, for Nueces county, from 8 percent of

the total annual volume to 7 percent. The total annual volume

percentage for the asphalt use is calculated over a two-year period,

(2) makes the VOC content requirement for asphalt in the Nueces county

more consistent with that of nonattainment areas, (3) allows use of

alternative asphalt mixes with equal or less VOC emissions, and (4)

offers more operational flexibility for a source to meet the market

demands.

11. What Test Methods Will Texas Use To Determine Compliance With

the VOC Content Requirements?

According to section 115.515, Texas will apply the following test

methods to determine compliance with this VOC rule: (1) American

Society of Testing and Materials (ASTM) Test Method D 244, ``Standard

Test Methods for Emulsified Asphalts, Sections 11 to 15, Residue and

Oil Distillate by Distillation,'' as published in the 1997 edition of

the Annual Book of ASTM Standards, for determining VOC content of

asphalt emulsions; or (2) ASTM Test Method D 402, ``Standard Test

Method for Distillation of Cut-Back Asphaltic Products,'' as published

in the 1997 edition of the Annual Book of ASTM Standards, for

determining the VOC content of cutback asphalt.

12. What Are the Subchapter F Requirements for Cutback Asphalt?

The following table contains a summary of the requirements in

Subchapter F for the H/G, the B/PA, the DFW, and the EP areas and the

Nueces county concerning VOC contents in cutback asphalt and asphalt

emulsion.

Table 1.--Asphaltic VOC Content Requirements and Their Corresponding

Areas in Texas

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Location Requirement Explanation

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H/G, B/PA, DFW, EP areas and VOC content 7 For paving roadways,

Nueces county. percent or less of driveways, or

total volume, parking lots.

averaged over 2-

year period.

H/G, B/PA, DFW, EP areas.... No cutback asphalt.. From April 16 to

September 15 of any

year

H/G, B/PA, DFW, EP areas and Asphalt emulsion 0.5 By weight percent.

Nueces county. percent for seal

coats.

H/G, B/PA, DFW, EP areas and 3.0 percent for chip By weight percent

Nueces county. seals when dusty or for asphaltic

dirty aggregate emulsion.

used.

H/G, B/PA, DFW, EP areas and 8.0 percent for By weight percent

Nueces county. mixing with open for asphaltic

graded aggregate emulsion.

containing less

than 1 percent of

dust or clay-like

materials.

H/G, B/PA, DFW, EP areas and 12.0 percent for by weight percent

Nueces county. mixing with dense for asphaltic

graded aggregate emulsion.

when used to

produce a mix

designed to have 10

percent or less

voids when fully

compacted.

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When more than one asphaltic VOC content requirement from the above

table applies to an asphaltic emulsion, one must use the most stringent

requirement. See section 115.512(3).

Final Action

The EPA is publishing this rule without prior proposal because we

view this as a noncontroversial amendment and anticipate no adverse

comments. However, in the ``Proposed Rules'' section of today's Federal

Register publication, we are publishing a separate document that will

serve as the proposal to approve the SIP revision if adverse comments

are received. This rule will be effective on February 22, 2000, without

further notice unless we receive adverse comment by January 21, 2000.

If EPA receives adverse comments, we will publish a timely withdrawal

in the Federal Register informing the public that the rule will not

take effect. We will address all public comments in a subsequent final

rule based on the proposed rule. We will not institute a second comment

period on this action. Any parties interested in commenting must do so

at this time.

Administrative Requirements

A. Executive Order (E.O.) 12866

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

regulatory action from E.O. 12866, entitled ``Regulatory Planning and

Review.''

B. Executive Order 13132

Executive 13132, entitled ``Federalism'' (64 FR 43255, August 10,

1999) revokes and replaces E.O. 12612, ``Federalism,'' and E.O. 12875,

``Enhancing the Intergovernmental Partnership.'' Executive Order 13132

requires EPA to develop an accountable process to ensure ``meaningful

and timely input by State and local officials in the development of

regulatory policies that have federalism implications.'' ``Policies

that have federalism implications'' is defined in the E.O. to include

regulations that have ``substantial direct effects on the States, on

the relationship between the national government and the States, or on

the distribution of power and responsibilities among the various levels

of government.'' Under E.O. 13132, EPA may not issue a regulation that

has federalism implications, that imposes substantial direct compliance

costs, and that is not required by statute, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by State and local governments, or EPA consults with

State and local officials early in the process of developing the

proposed regulation. The EPA also may not issue a regulation that has

federalism implications and that preempts State law unless the Agency

consults with State and local officials early in the process of

developing the proposed regulation.

This final rule will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government, as specified in E.O. 13132. Thus, the

requirements of section 6 of the E.O. do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled ``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 E.O. 12866, and (2) concerns an

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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.

The EPA interprets E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the Order has the potential to

influence the regulation. This final rule is not subject to E.O. 13045

because it approves a State program.

D. Executive Order 13084

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

required by statute, that significantly 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, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to the OMB, 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, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

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. This action does not involve

or impose any requirements that affect Indian tribes. Accordingly, the

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

E. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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 SIP approvals

under section 110 and subchapter I, part D of the 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

create 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

Act, preparation of a flexibility analysis would constitute Federal

inquiry into the economic reasonableness of state action. The Act

forbids EPA to base its actions concerning SIPs on such grounds. See

Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.

7410(a)(2).

F. 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 annual 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 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 annual 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 pre-existing 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.

G. Submission to Congress and the Comptroller General

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. The EPA will submit 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 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). This rule will be effective February 22, 2000.

H. 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 February 22, 2000. 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).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Asphalt,

Intergovernmental relations, Ozone, Reporting and recordkeeping

requirements, and Volatile organic compounds.

Dated: November 19, 1999.

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 et seq.

Subpart SS--Texas

2. Section 52.2270 is amended under Chapter 115, Subchapter F, by

removing the entry for section 115.512 to 115.519 and inserting in its

place individual entries for section 115.510 through section 115.519

reading as follows:

Sec. 52.2270 Identification of plan.

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(c) * * *

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EPA Approved Regulations in the Texas SIP

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State submittal/

State citation Title/subject approval date EPA approval date Explanation

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Chapter 115 (Regulation 5)--Control of Air Pollution from Volatile Organic Compounds

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Subchapter F Miscellaneous Industrial Sources

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Cutback Asphalt

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Section 115.510................. Definitions....... August 18, 1999/ December 22, 1999 ..................

August 31, 1999. and 64 FR 71670.

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*

Section 115.512................. Control August 18, 1999/ December 22, 1999 ..................

Requirements. August 31, 1999. and Federal

Register cite.

Section 115.513................. Alternative August 18, 1999/ December 22, 1999 ..................

Control August 31, 1999. and 64 FR 71670.

Requirements.

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*

Section 115.515................. Testing August 18, 1999/ December 22, 1999 ..................

Requirements. August 31, 1999. and 64 FR 71670.

Section 115.516................. Recordkeeping August 18, 1999/ December 22, 1999 ..................

Requirements. August 31, 1999. and 64 FR 71670.

Section 115.517................. Exemptions........ 05/08/92.......... 03/07/95 60 FR Ref

12438. 52.2299(c)(88).

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*

Section 115.519................. Counties and 05/08/92.......... 03/07/95 60 FR Ref

Compliance 12438. 52.2299(c)(88).

Schedules.

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[FR Doc. 99-32858 Filed 12-21-99; 8:45 am]

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