[Federal Register: September 28, 2005 (Volume 70, Number 187)]
[Rules and Regulations]
[Page 56566-56569]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se05-4]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R06-OAR-2005-TX-0016; FRL-7975-9]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Permits by Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action to approve a State
Implementation Plan (SIP) revision for the State of Texas. This action
removes a provision from the Texas SIP which provided public notice for
concrete batch plants which were constructed under a permit by rule
(PBR). On September 1, 2000, Texas replaced the PBR for concrete batch
plants with a standard permit for concrete batch plants. The standard
permit for concrete batch plants also requires public notice for
concrete batch plants subject to the standard permit. Texas maintained
the public notice requirements of its PBR to assure that proper
procedures were followed for concrete batch plants that were permitted
under the PBR prior to the effective date of the standard permit. All
authorization requests for concrete batch plants which were constructed
under the PBR have now been resolved and the public notice and comment
provisions under the PBR are no longer needed.
DATES: This rule is effective on November 28, 2005 without further
notice, unless EPA receives adverse comment by October 28, 2005. 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: Submit your comments, identified by Regional Material in
DOCKET (RME) ID No. R06-OAR-2005-TX-0016, by one of the following
methods:
Federal rulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Agency Web site: http://docket.epa.gov/rmepub/. Regional
Material in DOCKET (RME), EPA's electronic public docket and comment
system, is EPA's preferred method for receiving comments. Once in the
system, select ``quick search,'' then key in the appropriate RME Docket
identification number. Follow the on-line instructions for submitting
comments.
U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm.
Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
E-mail: Mr. David Neleigh at neleigh.david@epa.gov. Please
also cc the person listed in the FOR FURTHER INFORMATION CONTACT
section below.
Fax: Mr. David Neleigh, Chief, Air Permits Section (6PD-
R), at fax number 214-665-7263.
Mail: Mr. David Neleigh, Chief, Air Permits Section (6PD-
R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. David Neleigh, Chief, Air
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Regional Material in DOCKET
(RME) ID No. R06-OAR-2005-TX-0016. EPA's policy is that all comments
received will be included in the public file without change, and may be
made available online at http://docket.epa.gov/rmepub/, including any
personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information the disclosure of which is restricted by statute. Do not
submit information through Regional Material in DOCKET (RME),
Regulations.gov, or e-mail if you believe that it is CBI or otherwise
protected from disclosure. The EPA RME Web site and the federal
regulations.gov are ``anonymous access'' systems, which means EPA will
not
[[Page 56567]]
know your identity or contact information unless you provide it in the
body of your comment. If you send an e-mail comment directly to EPA
without going through RME or regulations.gov, your e-mail address will
be automatically captured and included as part of the comment that is
placed in the public file and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
Regional Material in DOCKET (RME) index at http://docket.epa.gov/rmepub/.
Although listed in the index, some information is not publicly
available, i.e., CBI 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 in RME or in the official file which is
available at the Air Permits Section (6PD-R), 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 or Mr. Bill Deese at
(214) 665-7523 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.
The state submittal is also available for public inspection at the
state Air Agency listed below during official business hours by
appointment:
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212;
fax number 214-665-7263; e-mail address spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA. Outline:
I. What Action Are We Taking?
II. What Is a State Implementation Plan?
III. What Does Federal Approval of a SIP Mean to Me?
IV. What Did the State Submit?
V. Why Are We Approving the Removal of Section 106.5?
VI. Final Action
VII. Statutory and Executive Order Reviews
I. What Action Are We Taking?
This action removes 30 TAC, section 106.5 from the Texas SIP. This
section provided public notice for concrete batch plants which were
constructed under a PBR.\1\ On September 1, 2000, Texas replaced the
PBR for concrete batch plants with a standard permit \2\ for concrete
batch plants. The standard permit for concrete batch plants also
requires public notice for concrete batch plants which are subject to
the standard permit. Texas maintained the public notice requirements of
section 106.5 to assure that proper procedures were followed for
concrete batch plants that were permitted under the PBR prior to the
effective date of the standard permit. All authorization requests for
concrete batch plants which were constructed under the PBR have now
been resolved and section 106.5 is no longer needed. Texas submitted a
SIP revision to remove section 106.5.
---------------------------------------------------------------------------
\1\ A PBR is a permit which is adopted under Chapter 106, which
provides an alternative process for approving the construction of
new and modified facilities which Texas has determined will not make
a significant contribution of air contaminants to the atmosphere.
These provisions provide a streamlined mechanism for approving the
construction of certain small sources which would otherwise be
required to apply for and receive a permit before commencing
construction or modification. For further description of Texas
regulations concerning PBRs see the discussion in our November 14,
2003 approval (68 FR 64544-45).
\2\ A standard permit is a permit which is adopted under Chapter
116,Subchapter F, which provides an alternative process for
approving the construction of certain categories of new and modified
sources for which the TCEQ has adopted a standard permit. These
provisions provide a streamlined mechanism for approving the
construction of certain sources within categories which contain
numerous similar sources. For further description of Texas
regulations concerning standard permits, see the discussion in our
November 14, 2003 approval (68 FR 64546-47).
---------------------------------------------------------------------------
II. What Is a State Implementation Plan?
Section 110 of the Act requires States to develop air pollution
regulations and control strategies to ensure that the state air quality
meets the National Ambient Air Quality Standards (NAAQS) that EPA has
established. Under section 109 of the Act, EPA established the NAAQS to
protect public health. The NAAQS address six criteria pollutants. These
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.
III. What Does Federal Approval of a SIP Mean to Me?
A state may enforce state regulations before and after we
incorporate those regulations into a federally approved SIP. After we
incorporate those regulations into a federally approved SIP, both EPA
and the public may also take enforcement action against violators of
these regulations.
IV. What Did the State Submit?
This action addresses Texas' SIP submittal to EPA by letter dated
June 28, 2004. In the submittal, Texas submitted its repeal of
section106.5--Public Notice, which it adopted June 9, 2004. Section
106.5 required public notice for concrete batch plants permitted under
Chapter 106--Permits by Rule. With the creation of the concrete batch
plant standard permit on September 1, 2000, and the repeal of the
concrete batch plant PBR, section 106.5 is no longer needed. Texas
maintained the public notice requirements of section 106.5 to assure
that proper procedures were followed for the concrete batch plant PBR
registrations received prior to the effective date of the standard
permit for concrete batch plants. At this time, Texas has resolved all
of the outstanding authorization requests for concrete batch plants
permitted under Chapter 106. Consequently, the maintenance of section
106.5 is no longer needed.
V. Why Are We Approving the Removal of Section 106.5?
We approved section 106.5 on November 14, 2003 (68 FR 64543-50)
when we approved Chapter 106--Permits by Rule into the Texas SIP.
Section 106.5--Public Notice applies to the construction of permanent
or temporary concrete batch plants that are constructed under Chapter
106. Under
[[Page 56568]]
section 106.5, each concrete batch plant constructed under Chapter 106
must conduct public notice of the proposed construction. On September
1, 2000, Texas issued a standard permit for concrete batch plants. This
standard permit replaced the requirements for PBRs applicable to
concrete batch plants. Texas maintained its requirements for concrete
batch plants (including the requirements for public notice) to assure
that proper procedures were followed for the concrete batch plant PBR
registrations received prior to the effective date of the standard
permit for concrete batch plants. Because all of the outstanding
authorization requests for concrete batch plants permitted under
Chapter 106 have been resolved, the maintenance of the requirements for
concrete batch plants under Chapter 106 is no longer needed.
On June 9, 2004, Texas repealed its PBRs for concrete batch plants
and section 106.5. Section 106.5 is no longer necessary due to the
issuance of the standard permit for concrete batch plant standard which
was in accordance with section 116.602--Issuance of Standard Permits
and because Texas has resolved all outstanding authorization requests
for concrete batch plants permitted under Chapter 106 received prior to
the effective date of the standard permit.
Under Texas Health and Safety Code, section 382.058, concrete batch
plant PBRs are subject to notice and opportunity for hearing
provisions. The concrete batch plant PBR was the only PBR in Chapter
106 that required public notice. With the creation of the concrete
batch plant standard permit, concrete batch plants are no longer
authorized by a PBR under Chapter 106. The public notice requirements
for concrete batch plants are now contained in the standard permit;
therefore section 106.5 is no longer needed.
The removal of section 106.5 will not affect the obligation for
Texas to provide for public notice when it issues new or revised PBR.
The process for issuing, revising, and removing PBR is through
rulemaking under which new and revised PBR must undergo public notice
and a 30-day comment period which meets the requirements of 40 CFR
51.161, which provides for public notice prior to approval of any new
or modified source which is subject to the PBR. The basis for how Texas
program for PBR meets these requirements is discussed in our November
14, 2003 approval of Chapter 106. See 68 FR 64545.
The standard permit for concrete batch plants was originally issued
in 2000 (effective September 1, 2000) and was later revised in 2003
(effective July 10, 2003). The standard permits for batch concrete
plants were issued after notice an opportunity for public comment and
public hearing as required under section 116.605. The process for
public participation meets our requirements under 40 CFR 51.161, which
provides for public notice prior to approval of any new or modified
source which is subject to the PBR. The basis for how the Texas program
for standard permits meets these requirements is discussed in our
November 14, 2003, approval of Texas provisions for standard permits.
See 68 FR 64547. The standard permit for batch concrete plants also
contain a provision pertaining to public notice which requires public
notice for concrete batch plants which are subject to the standard
permit.
The public notice requirements under section 106.5 and under the
standard permit for concrete batch plants is an additional notice to
the public notice required under 40 CFR 51.161. As discussed above and
in greater detail in our November 14, 2003, approval of the PBR and
standard permits, each new and modified PBR and standard permit
(including the PBR and standard permit for concrete batch plants) must
be subject public notice and comment. We found that public notice
provisions for PBR and standard permits meet the requirement of 40 CFR
51.161. See 68 FR 64545. Accordingly, the adoption of the PBR and later
the standard permit for concrete batch plants were subject to public
notice which meet these public notice requirements at the time of
adoption. The public participation requirement and the standard permit
for concrete batch plants is an additional public notice that Texas
requires under Texas Health and Safety Code, section 382.058. Our
approval of this additional requirement for the public notice
provisions for concrete batch plants serves to strengthen the SIP.
Furthermore, the maintenance of section 106.5 in the SIP serves no
useful purpose because Texas has repealed the PBR for concrete batch
plants. The process for removing these PBR was in accordance with the
program that we approved for Texas PBR. Since section 106.5 is limited
only to PBR for concrete batch plants, and since Texas has repealed
these PBR from Chapter 106, section 106.5 is no longer needed.
VI. Final Action
On the basis of the above analysis and evaluation we conclude that
we can remove the provisions of section 106.5 from the SIP on the basis
that Texas replaced the PBR for concrete batch plants, which required
public notice, with a standard permit for concrete batch plants that
also requires public notice for concrete batch plants that are subject
to the standard permit.
We are 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 this 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 November 28, 2005 without
further notice unless we receive adverse comment by October 28, 2005.
If we receive 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. Please note that if we receive adverse comment on an
amendment, paragraph, or section of this rule and if that provision may
be severed from the remainder of the rule, we may adopt as final those
provisions of the rule that are not the subject of an adverse comment.
VII. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more
[[Page 56569]]
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000). This action also
does not have federalism implications because it does 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 Executive Order 13132 (64 FR 43255, August 10, 1999). This
action merely approves a state rule implementing a Federal standard,
and does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. section 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
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).
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 November 28, 2005. 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, Carbon Monoxide,
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides,
Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.
Dated: September 19, 2005.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Texas
0
2. The table in Sec. 52.2270(c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended under chapter 106, subchapter A, by removing
the entry for section 106.5, ``Public Notice.''
[FR Doc. 05-19358 Filed 9-27-05; 8:45 am]
BILLING CODE 6560-50-P