[Federal Register: March 18, 2005 (Volume 70, Number 52)]
[Rules and Regulations]
[Page 13108-13116]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18mr05-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[R06-OAR-2004-TX-0004; FRL-7886-4]
National Emission Standards for Hazardous Air Pollutants;
Delegation of Authority to Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule; delegation of authority.
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[[Page 13109]]
SUMMARY: The Texas Commission on Environmental Quality (TCEQ) has
submitted updated regulations for receiving delegation of EPA authority
for National Emission Standards for Hazardous Air Pollutants (NESHAPs)
for all sources. These regulations apply to certain NESHAPs promulgated
by EPA, as adopted by the TCEQ. The delegation of authority under this
notice does not apply to sources located in Indian Country. EPA is
taking direct final action to approve the delegation of certain NESHAPs
to TCEQ.
DATES: This rule is effective on May 17, 2005 without further notice,
unless EPA receives relevant adverse comment by April 18, 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 Materials in
EDocket (RME) ID No. R06-OAR-2004-TX-0004, by one of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Agency Web site: http://docket.epa.gov/rmepub/, Regional
Materials in EDocket (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: Jeff Robinson at robinson.jeffrey@epa.gov.
Fax: Mr. Jeff Robinson, Air Permits Section (6PD-R), at
fax number 214-665-7263.
Mail: Mr. Jeff Robinson, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
Hand or Courier Delivery: Mr. Jeff Robinson, 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 Materials in EDocket
(RME) ID No. R06-OAR-2004-TX-0004. 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 EDocket (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 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 Materials in EDocket (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 Permitting 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 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, 12100
Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Jeff Robinson, U.S. EPA, Region 6,
Multimedia Planning and Permitting Division (6PD), 1445 Ross Avenue,
Dallas, TX 75202-2733, telephone (214) 665-6435; fax number 214-665-
7263; or electronic mail at robinson.jeffrey@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
Table of Contents
I. General Information
II. What Does This Action Do?
III. What Is The Authority for Delegation?
IV. What Criteria Must Texas' Program Meet To Be Approved?
V. How Did TCEQ Meet the Subpart E Approval Criteria?
VI. What Is Being Delegated?
VII. What Is Not Being Delegated?
VIII. How Will Applicability Determinations Under Section 112 Be
Made?
IX. What Authority Does EPA Have?
X. What Information Must TCEQ Provide to EPA?
XI. What Is EPA's Oversight of This Delegation to TCEQ?
XII. Should Sources Submit Notices to EPA or TCEQ?
XIII. How Will Unchanged Authorities Be Delegated to TCEQ in the
Future?
XIV. What Is The Relationship Between RCRA and the Hazardous Waste
Combustor MACT?
XV. Final Action
XVI. Statutory and Executive Order Reviews
I. General Information
A. Tips for Preparing Your Comments
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
[[Page 13110]]
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
B. Submitting Confidential Business Information (CBI)
Do not submit this information to EPA through regulations.gov or e-
mail. Clearly mark the part or all of the information that you claim to
be CBI. For CBI information in a disk or CD ROM that you mail to EPA,
mark the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
II. What Does This Action Do?
EPA is taking direct final action to approve the delegation of
certain NESHAPs to TCEQ. With this delegation, TCEQ has the primary
responsibility to implement and enforce the delegated standards.
III. What Is the Authority for Delegation?
Section 112(l) of the CAA and 40 CFR part 63, Subpart E, authorizes
EPA to delegate authority to any state or local agency which submits
adequate regulatory procedures for implementation and enforcement of
emission standards for hazardous air pollutants. The hazardous air
pollutant standards are codified at 40 CFR part 63.
IV. What Criteria Must Texas' Program Meet To Be Approved?
Section 112(l) of the CAA enables EPA to approve State air toxics
programs or rules to operate in place of the Federal air toxics program
or rules. 40 CFR part 63, subpart E (subpart E) governs EPA's approval
of State rules or programs under section 112(l).
EPA will approve an air toxics program if we find that:
(1) The State program is ``no less stringent'' than the
corresponding Federal program or rule;
(2) the State has adequate authority and resources to implement the
program;
(3) the schedule for implementation and compliance is sufficiently
expeditious; and
(4) the program otherwise complies with Federal guidance.
In order to obtain approval of its program to implement and enforce
Federal section 112 rules as promulgated without changes (straight
delegation), only the criteria of 40 CFR 63.91(d) must be met. 40 CFR
63.91(d)(3) provides that interim or final Title V program approval
will satisfy the criteria of 40 CFR 63.91(d) for part 70 sources.
V. How Did TCEQ Meet the Subpart E Approval Criteria?
As part of its Title V submission, TCEQ stated that it intended to
use the mechanism of incorporation by reference to adopt unchanged
Federal section 112 into its regulations. This applied to both existing
and future standards as they applied to part 70 sources ((60 FR 30444
(June 7, 1995) and 61 FR 32699 (June 25, 1996)). On December 6, 2001,
EPA promulgated final full approval of the State's operating permits
program effective November 30, 2001 (66 FR 63318). Under 40 CFR
63.91(d)(2), once a state has satisfied up-front approval criteria, it
needs only to reference the previous demonstration and reaffirm that it
still meets the criteria for any subsequent submittals. TCEQ has
affirmed that it still meets the up-front approval criteria.
In addition, Texas has requested delegation of a State requirement
to adjust a section 112 rule. The approval of this adjustment is
regulated at 40 CFR 63.92. The TCEQ has modified the General Provisions
at 40 CFR part 63, subpart A, by promulgating different timing
requirements at Texas Administrative Code (TAC), Title 30, Part 1,
Chapter 113, Subchapter C, section 113.100. Public notice was given
pursuant to the requirements of the Texas Health and Safety Code
Annotated, section 382.017 (Vernon's 1992) and Texas Government Code
Annotated, Subchapter B, Chapter 2001 (Vernon's 2000). The TCEQ
(formally the Texas Natural Resource Conservation Commission) conducted
a public hearing on April 11, 1997, to receive testimony regarding the
revision to 30 TAC Chapter 113 which included the General Provisions at
section 113.100. EPA believes the timing requirement adjustments do not
result in a reduction of stringency of the part 63 emission standards.
The TCEQ has met the criteria of 40 CFR 63.91, and the State is
requesting EPA approval of the exceptions to the General Provisions (40
CFR part 63, subpart A) pursuant to 40 CFR 63.92.
VI. What Is Being Delegated?
EPA received requests from TCEQ to delegate certain NESHAP subparts
on August 20, 1997; October 15, 1997; July 9, 1998; October 14, 1998;
January 13, 2000, July 13, 2000, and December 2, 2004. The TCEQ
requests delegation of certain NESHAP for all sources (both part 70 and
non-part 70 sources). For the part 63 NESHAPs, Texas's requests
included the NESHAPs set forth in Table 1 below.
Table 1.--40 CFR Part 63 NESHAP for Source Categories
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Subpart Emission standard
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A......................................... General Provisions.
F......................................... Hazardous Organic NESHAP
(HON)--Synthetic Organic
Chemical Manufacturing
Industry (SOCMI).
G......................................... HON--SOCMI Process Vents,
Storage Vessels, Transfer
Operations and Wastewater.
H......................................... HON--Equipment Leaks.
I......................................... HON--Certain Processes
Negotiated Equipment Leak
Regulation.
J......................................... Polyvinyl Chloride and
Copolymers Production.
L......................................... Coke Oven Batteries.
M......................................... Perchloroethylene Dry
Cleaning.
N......................................... Chromium Electroplating.
O......................................... Ethylene Oxide Sterilizers.
Q......................................... Industrial Process Cooling
Towers.
R......................................... Gasoline Distribution.
[[Page 13111]]
S......................................... Pulp and Paper Industry.
T......................................... Halogenated Solvent
Cleaning.
U......................................... Polymers and Resins I.
W......................................... Polymers and Resins II--
Epoxy Resins and Non-Nylon
Polyamides.
X......................................... Secondary Lead Smelting.
Y......................................... Marine Tank Vessel Loading.
AA........................................ Phosphoric Acid.
BB........................................ Phosphate Fertilizers.
CC........................................ Petroleum Refineries.
DD........................................ Off-Site Waste and Recovery.
EE........................................ Magnetic Tape Manufacturing.
GG........................................ Aerospace Manufacturing and
Rework Facilities.
HH........................................ Oil and Natural Gas
Production.
II........................................ Shipbuilding and Ship
Repair.
JJ........................................ Wood Furniture
Manufacturing.
KK........................................ Printing and Publishing
Industry.
LL........................................ Primary Aluminum Reduction
Plants.
MM........................................ Chemical Recovery Combustion
Sources at Kraft, Soda,
Sulfite, and Stand-Alone
Semichemical Pulp Mills.
OO........................................ Tanks--Level 1.
PP........................................ Containers.
QQ........................................ Surface Impoundments.
RR........................................ Individual Drain Systems.
SS........................................ Closed Vent Systems, Control
Devices, Recovery Devices
and Routing to a Fuel Gas
System or a Process.
TT........................................ Equipment Leaks--Level 1.
UU........................................ Equipment Leaks--Level 2
Standards.
VV........................................ Oil-Water Separators and
Organic-Water Separators.
WW........................................ Storage Vessels (Tanks)--
Control Level 2.
XX........................................ Ethylene Manufacturing
Process Units.
YY........................................ Generic Maximum Achievable
Control Technology
Standards.
CCC....................................... Steel Pickling--HCl Process
Facilities and Hydrochloric
Acid Regeneration.
DDD....................................... Mineral Wool Production.
EEE....................................... Hazardous Waste Combustors.
GGG....................................... Pharmaceuticals Production.
HHH....................................... Natural Gas Transmission and
Storage.
III....................................... Flexible Polyurethane Foam
Production.
JJJ....................................... Polymers and Resins, Group
IV.
LLL....................................... Portland Cement
Manufacturing.
MMM....................................... Pesticide Active Ingredient
Production.
NNN....................................... Wool Fiberglass
Manufacturing.
OOO....................................... Polymer and Resins III--
Amino Resins and Phenolic
Resins.
PPP....................................... Polyether Polyols
Production.
QQQ....................................... Primary Copper Smelting.
RRR....................................... Secondary Aluminum.
TTT....................................... Primary Lead Smelting.
UUU....................................... Petroleum Refineries--
Catalytic Cracking,
Catalytic Reforming and
Sulfer Plants.
VVV....................................... Publicly Owned Treatment
Works (POTW).
XXX....................................... Ferroalloys Production.
AAAA...................................... Municipal Solid Waste
Landfills.
CCCC...................................... Nutritional Yeast Mfg.
GGGG...................................... Vegetable Oil Production--
Solvent Extraction.
HHHH...................................... Wet Formed Fiberglass Mat
Production.
JJJJ...................................... Paper and Other Web Coating.
NNNN...................................... Surface Coating of Large
Appliances.
SSSS...................................... Surface Coating for Metal
Coil.
TTTT...................................... Leather Finishing
Operations.
UUUU...................................... Cellulose Production
Manufacture.
VVVV...................................... Boat Manufacturing.
XXXX...................................... Rubber Tire Manufacturing.
QQQQQ..................................... Friction Materials
Manufacturing.
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VII. What Is Not Being Delegated?
EPA cannot delegate to a State any of the Category II subpart A
authorities set forth in 40 CFR 63.91(g)(2). These include the
following provisions: Sec. 63.6(g), Approval of Alternative Non-
Opacity Standards; Sec. 63.6(h)(9), Approval of Alternative Opacity
Standards; Sec. 63.7(e)(2)(ii) and (f), Approval of Major Alternatives
to Test Methods; Sec. 63.8(f), Approval of Major Alternatives to
Monitoring; and Sec. 63.10(f), Approval of Major Alternatives to
Recordkeeping and Reporting. In addition, some MACT standards have
certain provisions that cannot be delegated to the States. Therefore,
any MACT standard that EPA is delegating to TCEQ that provides that
certain authorities cannot be delegated are retained by EPA and not
delegated. Furthermore, no authorities are delegated that require
rulemaking in the Federal Register to implement, or where Federal
overview is the only way to ensure national consistency in the
[[Page 13112]]
application of the standards or requirements of CAA section 112.
Finally, section 112(r), the accidental release program authority, is
not being delegated by this approval.
All of the inquiries and requests concerning implementation and
enforcement of the excluded standards in the State of Texas should be
directed to the EPA Region 6 Office.
In addition, this delegation to TCEQ to implement and enforce
certain NESHAPs does not extend to sources or activities located in
Indian country, as defined in 18 U.S.C. 1151. Under this definition,
EPA treats as reservations, trust lands validly set aside for the use
of a Tribe even if the trust lands have not been formally designated as
a reservation. Consistent with previous federal program approvals or
delegations, EPA will continue to implement the NESHAPs in Indian
country because TCEQ has not submitted information to demonstrate
authority over sources and activities located within the exterior
boundaries of Indian reservations and other areas in Indian country.
VIII. How Will Applicability Determinations Under Section 112 Be Made?
In approving this delegation, TCEQ will obtain concurrence from EPA
on any matter involving the interpretation of section 112 of the CAA or
40 CFR part 63 to the extent that implementation, administration, or
enforcement of these sections have not been covered by EPA
determinations or guidance.
IX. What Authority Does EPA Have?
We retain the right, as provided by CAA section 112(l)(7), to
enforce any applicable emission standard or requirement under section
112. EPA also has the authority to make certain decisions under the
General Provisions (subpart A) of part 63. We are granting TCEQ some of
these authorities, and retaining others, as explained in sections VI
and VII above. In addition, EPA may review and disapprove of State
determinations and subsequently require corrections. (See 40 CFR
63.91(g) and 65 FR 55810, 55823, September 14, 2000.)
Furthermore, we retain any authority in an individual emission
standard that may not be delegated according to provisions of the
standard.\1\ Also, listed in the footnotes of the part 63 delegation
table at the end of this rule are the authorities that cannot be
delegated to any State or local agency which we therefore retain.
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\1\ EPA amended several NESHAPs to clarify the implementation
and enforcement authorities within the standards that we may
delegate to each State, local or tribal agency such as TCEQ. 68 FR
37334 (June 23, 2003). A complete list of the standards is contained
in the official file available for review at the Dallas Regional
Office. An electronic copy of the rule may be obtained from EPA's
Internet site, http://www.epa.gov/fedrgstr/EPA-AIR/2003/June/Day-23/a14190.pdf.
EPA believes the changes make all of the standards
consistent in defining what may not be delegated in actions such as
the one we are taking today.
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X. What Information Must TCEQ Provide to EPA?
In delegating the authority to implement and enforce these rules
and in granting a waiver of EPA notification requirements, we require
TCEQ to input all source information into the Aerometric Information
Retrieval System (AIRS) for both point and area sources. TCEQ must
enter this information into the AIRS system and update the information
by September 30 of every year. TCEQ must provide any additional
compliance related information to EPA, Region 6, Office of Enforcement
and Compliance Assurance within 45 days of a request under 40 CFR
63.96(a).
In receiving delegation for specific General Provisions
authorities, TCEQ must submit to EPA Region 6 on a semi-annual basis,
copies of determinations issued under these authorities. For part 63
standards, these determinations include: applicability determinations
(Sec. 63.1); approval/disapprovals of construction and reconstruction
(Sec. 63.5(e) and (f)); notifications regarding the use of a
continuous opacity monitoring system (Sec. 63.6(h)(7)(ii)); finding of
compliance (Sec. 63.6(h)(8)); approval/disapprovals of compliance
extensions (Sec. 63.6(i)); approvals/disapprovals of minor (Sec.
63.7(e)(2)(i)) or intermediate (Sec. 63.7(e)(2)(ii) and (f))
alternative test methods; approval of shorter sampling times and
volumes (Sec. 63.7(e)(2)(iii)); waiver of performance testing (Sec.
63.7(e)(2)(iv) and (h)(2), (3)); approvals/disapprovals of minor or
intermediate alternative monitoring methods (Sec. 63.8(f)); approval
of adjustments to time periods for submitting reports (Sec. 63.9 and
63.10); and approvals/disapprovals of minor alternatives to
recordkeeping and reporting (Sec. 63.10(f)).
Additionally, EPA's Emissions, Monitoring, and Analysis Division
must receive copies of any approved intermediate changes to test
methods or monitoring. (Please note that intermediate changes to test
methods must be demonstrated as equivalent through the procedures set
out in EPA method 301.) This information on approved intermediate
changes to test methods and monitoring will be used to compile a
database of decisions that will be accessible to State and local
agencies and EPA Regions for reference in making future decisions. (For
definitions of major, intermediate and minor alternative test methods
or monitoring methods, see 40 CFR 63.90). The TCEQ should forward these
intermediate test methods or monitoring changes via mail or facsimile
to: Chief, Air Measurements and Quality Group, Emissions Monitoring and
Analysis Division, Office of Air Quality Planning and Standards,
Mailcode D205-02, Research Triangle Park, NC 27711, Facsimile telephone
number: (919) 541-0516.
XI. What Is EPA's Oversight of This Delegation to TCEQ?
EPA must oversee TCEQ's decisions to ensure the delegated
authorities are being adequately implemented and enforced. We will
integrate oversight of the delegated authorities into the existing
mechanisms and resources for oversight currently in place. If, during
oversight, we determine that TCEQ made decisions that decreased the
stringency of the delegated standards, then TCEQ shall be required to
take corrective actions and the source(s) affected by the decisions
will be notified, as required by 40 CFR 63.91(g)(1)(ii). We will
initiate withdrawal of the program or rule if the corrective actions
taken are insufficient.
XII. Should Sources Submit Notices to EPA or TCEQ?
For the NESHAPS being delegated and included in the table above,
all of the information required pursuant to the general provisions and
the relevant subpart of the Federal NESHAP (40 CFR part 63) should be
submitted by sources located outside of Indian country, directly to the
TCEQ at the following address: Texas Commission on Environmental
Quality, Office of Permitting, Remediation and Registration, Air
Permits Division (MC 163), P.O. Box 13087, Austin, Texas 78711-3087.
The TCEQ is the primary point of contact with respect to delegated
NESHAPs. Sources do not need to send a copy to EPA. EPA Region 6 waives
the requirement that notifications and reports for delegated standards
be submitted to EPA in addition to TCEQ in accordance with 40 CFR
63.9(a)(4)(ii) and 63.10(a)(4)(ii). For those standards which are not
delegated, sources must continue to submit all appropriate information
to EPA.
[[Page 13113]]
XIII. How Will Unchanged Authorities Be Delegated to TCEQ in the
Future?
In the future, TCEQ will only need to send a letter of request to
EPA, Region 6, for NESHAP regulations that TCEQ has adopted by
reference. The letter must reference the previous up-front approval
demonstration and reaffirm that it still meets the up-front approval
criteria. We will respond in writing to the request stating that the
request for delegation is either granted or denied. If a request is
approved, the effective date of the delegation will be the date of our
response letter. A Federal Register will be published to inform the
public and affected sources of the delegation, indicate where source
notifications and reports should be sent, and to amend the relevant
portions of the Code of Federal Regulations showing which NESHAP
standards have been delegated to TCEQ.
XIV. What Is The Relationship Between RCRA And The Hazardous Waste
Combustor MACT?
As part of today's rule, we are delegating, under the CAA,
implementation and enforcement authority for the Hazardous Waste
Combustor (HWC) MACT (subpart EEE) to TCEQ. Many of the sources subject
to the HWC MACT are also subject to the RCRA permitting requirements.
We expect air emissions and related operating requirements found in the
HWC MACT will be included in part 70 permits issued by TCEQ. However,
RCRA permits will still be required for all other aspects of the
combustion unit and the facility that are governed by RCRA (e.g.,
corrective action, general facility standards, other combustor-specific
concerns such as materials handling, risk-based emissions limits and
operating requirements, as appropriate and other hazardous waste
management units).\2\ See the HWC MACT rule preamble discussion (64 FR
52828, 52839-52843 (September 30, 1999)), and the RCRA Site-Specific
Risk Assessment Policy for HWC Facilities dated June 2000 for more
information on the interrelationship of the MACT rule with the RCRA
Omnibus provision and site specific risk assessments.
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\2\ EPA promulgated the HWC MACT (40 CFR part 63, subpart EEE)
under the joint authority of the CAA and RCRA. Before this rule went
into effect, the air emissions from these sources were primarily
regulated under the authority of RCRA. See 40 CFR parts 264, 265,
266, and 270. With the release of HWC MACT, the air emissions are
now regulated under both CAA and RCRA. Even though both statutes
give EPA the authority to regulate air emissions, we determined that
having the emissions standards and permitting requirements in both
sets of implementing regulations would be duplicative. For this
reason, using the authority provided by section 1006(b) of RCRA, EPA
deferred the RCRA requirements for the HWC emission controls to the
CAA requirements of 40 CFR part 63, subpart EEE. After a facility
has demonstrated compliance with the HWC MACT, the RCRA standards
for air emissions from these units will no longer apply, with the
exception of section 3005(c)(3) of RCRA, which requires that each
RCRA permit contain the terms and conditions necessary to protect
human health and the environment. Under this provision of RCRA, if a
regulatory authority determines that more stringent conditions than
the HWC MACT are necessary to protect human health and the
environment for a particular facility, then that regulatory
authority may impose those conditions in the facility's RCRA permit.
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XV. Final Action
The public was provided the opportunity to comment on the proposed
approval of the program and mechanism for delegation of section 112
standards, as they apply to part 70 sources, on June 7, 1995, for the
proposed interim approval of TCEQ's title V operating permits program;
and on October 11, 2001, for the proposed final approval of TCEQ's
title V operating permits program. In EPA's final full approval of
Texas' Operating Permits Program on December 6, 2001, (66 FR 63318),
the EPA discussed the public comments on the proposed final delegation
of the title V operating permits program. In today's action, the public
is given the opportunity to comment on the approval of TCEQ's request
for delegation of authority to implement and enforce certain section
112 standards for all sources (both part 70 and non-part 70 sources)
which have been adopted by reference into Texas' state regulations.
However, the Agency views the approval of these requests as a
noncontroversial action and anticipates no adverse comments. Therefore,
EPA is publishing this rule without prior proposal. However, in the
``Proposed Rules'' section of today's Federal Register publication, EPA
is publishing a separate document that will serve as the proposal to
approve the program and delegation of authority described in this
action if adverse comments are received. This action will be effective
May 17, 2005 without further notice unless the Agency receives relevant
adverse comments by April 18, 2005.
If EPA receives relevant adverse comments, we will publish a timely
withdrawal in the Federal Register informing the public the rule will
not take effect. We will address all public comments in a subsequent
final rule based on the proposed rule. The EPA 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
relevant 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 a relevant adverse comment.
XVI. 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 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 request
to receive delegation of certain Federal standards, 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.
[[Page 13114]]
In reviewing delegation submissions, EPA's role is to approve
submissions 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 delegation submission for failure to use VCS. It would
thus be inconsistent with applicable law for EPA to use VCS in place of
a delegation 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. 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 May 17, 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 63
Environmental protection, Air pollution control, Hazardous
substances, Incorporation by reference, Intergovernmental relations,
Reporting and recordkeeping requirements.
Authority: This action is issued under the authority of section
112 of the Clean Air Act, as amended, 42 U.S.C. 7412.
Dated: March 9, 2005.
Richard E. Greene,
Regional Administrator, Region 6.
0
40 CFR part 63 is amended as follows:
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 63.99 is amended by adding paragraph (a)(43) to read as
follows:
Sec. 63.99 Delegated Federal authorties.
(a) * * *
(43) Texas. (i) The following table lists the specific part 63
standards that have been delegated unchanged to the Texas Commission on
Environmental Quality for all sources. The ``X'' symbol is used to
indicate each subpart that has been delegated. The delegations are
subject to all of the conditions and limitations set forth in Federal
law, regulations, policy, guidance, and determinations. Some
authorities cannot be delegated and are retained by EPA. These include
certain General Provisions authorities and specific parts of some
standards. Any amendments made to these rules after this effective date
are not delegated.
Delegation Status for Part 63 Standards--State of Texas \1\
------------------------------------------------------------------------
Subpart Source Category TCEQ \2\
------------------------------------------------------------------------
F.................................... Hazardous Organic X
NESHAP (HON)--
Synthetic Organic
Chemical
Manufacturing
Industry (SOCMI).
G.................................... HON--SOCMI Process X
Vents, Storage
Vessels, Transfer
Operations and
Wastewater.
H.................................... HON--Equipment X
Leaks.
I.................................... HON--Certain X
Processes
Negotiated
Equipment Leak
Regulation.
J.................................... Polyvinyl Chloride X
and Copolymers
Production.
K.................................... (Reserved).........
L.................................... Coke Oven Batteries X
M.................................... Perchloroethylene X
Dry Cleaning.
N.................................... Chromium X
Electroplating and
Chromium Anodizing
Tanks.
O.................................... Ethylene Oxide X
Sterilizers.
P.................................... (Reserved).........
Q.................................... Industrial Process X
Cooling Towers.
R.................................... Gasoline X
Distribution.
S.................................... Pulp and Paper X
Industry.
T.................................... Halogenated Solvent X
Cleaning.
U.................................... Group I Polymers X
and Resins.
V.................................... (Reserved).........
W.................................... Epoxy Resins X
Production and Non-
Nylon Polyamides
Production.
X.................................... Secondary Lead X
Smelting.
Y.................................... Marine Tank Vessel X
Loading.
Z.................................... (Reserved).........
AA................................... Phosphoric Acid X
Manufacturing
Plants.
BB................................... Phosphate X
Fertilizers
Production Plants.
CC................................... Petroleum X
Refineries.
DD................................... Off-Site Waste and X
Recovery
Operations.
EE................................... Magnetic Tape X
Manufacturing.
FF................................... (Reserved).........
GG................................... Aerospace X
Manufacturing and
Rework Facilities.
HH................................... Oil and Natural Gas X
Production
Facilities.
II................................... Shipbuilding and X
Ship Repair
Facilities.
JJ................................... Wood Furniture X
Manufacturing
Operations.
KK................................... Printing and X
Publishing
Industry.
LL................................... Primary Aluminum X
Reduction Plants.
[[Page 13115]]
MM................................... Chemical Recovery X
Combustion Sources
at Kraft, Soda,
Sulfide, and Stand-
Alone Semichemical
Pulp Mills.
NN................................... (Reserved).........
OO................................... Tanks-Level 1...... X
PP................................... Containers......... X
QQ................................... Surface X
Impoundments.
RR................................... Individual Drain X
Systems.
SS................................... Closed Vent X
Systems, Control
Devices, Recovery
Devices and
Routing to a Fuel
Gas System or a
Process.
TT................................... Equipment Leaks-- X
Control Level 1.
UU................................... Equipment Leaks-- X
Control Level 2
Standards.
VV................................... Oil-Water X
Separators and
Organic-Water
Separators.
WW................................... Storage Vessels X
(Tanks)--Control
Level 2.
XX................................... (Reserved).........
YY................................... Generic Maximum X
Achievable Control
Technology
Standards.
ZZ-BBB............................... (Reserved).........
CCC.................................. Steel Pickling--HCl X
Process Facilities
and Hydrochloric
Acid Regeneration.
DDD.................................. Mineral Wool X
Production.
EEE.................................. Hazardous Waste X
Combustors.
FFF.................................. (Reserved).........
GGG.................................. Pharmaceuticals X
Production.
HHH.................................. Natural Gas X
Transmission and
Storage Facilities.
III.................................. Flexible X
Polyurethane Foam
Production.
JJJ.................................. Group IV Polymers X
and Resins.
KKK.................................. (Reserved).........
LLL.................................. Portland Cement X
Manufacturing.
MMM.................................. Pesticide Active X
Ingredient
Production.
NNN.................................. Wool Fiberglass X
Manufacturing.
OOO.................................. Amino/Phenolic X
Resins.
PPP.................................. Polyether Polyols X
Production.
QQQ.................................. Primary Copper X
Smelting.
RRR.................................. Secondary Aluminum X
Production.
SSS.................................. (Reserved).........
TTT.................................. Primary Lead X
Smelting.
UUU.................................. Petroleum X
Refineries--Cataly
tic Cracking
Units, Catalytic
Reforming Units
and Sulfur
Recovery Plants.
VVV.................................. Publicly Owned X
Treatment Works
(POTW).
http://WWW.................................. (Reserved).........
XXX.................................. Ferroalloys X
Production:
Ferromanganese and
Silicomanganese.
AAAA................................. Municipal Solid X
Waste Landfills.
CCCC................................. Nutritional Yeast X
Manufacturing.
DDDD................................. Plywood and
Composite Wood
Products.
EEEE................................. Organic Liquids
Distribution.
FFFF................................. Miscellaneous
Organic Chemical
Manufacturing
(MON).
GGGG................................. Solvent Extraction X
for Vegetable Oil
Production.
HHHH................................. Wet Formed X
Fiberglass Mat
Production.
IIII................................. Auto & Light Duty
Truck.
JJJJ................................. Paper and other Web X
(Surface Coating).
KKKK................................. Surface Coating of
Metal Cans.
MMMM................................. Miscellaneous Metal
Parts and Products
Surface Coating.
NNNN................................. Surface Coating of X
Large Appliances.
OOOO................................. Fabric Printing
Coating and Dyeing.
PPPP................................. Surface Coating of
Plastic Parts and
Products.
QQQQ................................. Surface Coating of
Wood Building
Products.
RRRR................................. Surface Coating of
Metal Furniture.
SSSS................................. Surface Coating for X
Metal Coil.
TTTT................................. Leather Finishing X
Operations.
UUUU................................. Cellulose X
Production
Manufacture.
VVVV................................. Boat Manufacturing. X
Whttp://WWW................................. Reinforced Plastic
Composites
Production.
XXXX................................. Tire Manufacturing. X
YYYY................................. Stationary
Combustion
Turbines.
ZZZZ................................. Reciprocating
Internal
Combustion Engines.
AAAAA................................ Lime Manufacturing.
BBBBB................................ Semiconductor
Manufacturing.
CCCCC................................ Coke Ovens:
Pushing, Quenching
and Battery Stacks.
DDDDD................................ Industrial,
Commercial, and
Institutional
Boilers and
Process Heaters.
EEEEE................................ Iron and Steel
Foundries.
FFFFF................................ Integrated Iron and
Steel.
GGGGG................................ Site Remediation...
HHHHH................................ Miscellaneous
Coating
Manufacturing.
IIIII................................ Mercury Cell Chlor-
Alkali Plants.
[[Page 13116]]
JJJJJ................................ Brick and
Structural Clay
Products
Manufacturing.
KKKKK................................ Clay Ceramics
Manufacturing.
LLLLL................................ Asphalt Roofing and
Processing.
MMMMM................................ Flexible
Polyurethane Foam
Fabrication
Operation.
NNNNN................................ Hydrochloric Acid
Production, Fumed
Silica Production.
PPPPP................................ Engine Test
Facilities.
QQQQQ................................ Friction Materials X
Manufacturing.
RRRRR................................ Taconite Iron Ore
Processing.
SSSSS................................ Refractory Products
Manufacture.
TTTTT................................ Primary Magnesium
Refining .
------------------------------------------------------------------------
\1\ Program delegated to Texas Commission on Environmental Quality
(TCEQ).
\2\ Authorities which may not be delegated include: Sec. 63.6(g),
Approval of Alternative Non-Opacity Emission Standards; Sec.
63.6(h)(9), Approval of Alternative Opacity Standards; Sec.
63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test
Methods; Sec. 63.8(f), Approval of Major Alternatives to Monitoring;
Sec. 63.10(f), Approval of Major Alternatives to Recordkeeping and
Reporting; and all authorities identified in the subparts (e.g., under
``Delegation of Authority'') that cannot be delegated.
(ii) Affected sources within Texas shall comply with the Federal
requirements of 40 CFR part 63--subpart A--General Provisions, adopted
by reference by the Texas Commission on Environmental Quality (TCEQ),
with the exception of Sec. 63.5(e)(2)(i), Sec. 63.6(i)(12)(i), Sec.
63.6(i)(13)(i) and (ii), Sec. 63.8(e)(5)(ii), Sec. 63.9(i)(3), and
Sec. 63.10(e)(2)(ii). The TCEQ has adopted alternative provisions for
the cited exceptions above and affected sources in Texas that are
subject to the requirements of Subpart A shall comply with the
requirements established at Texas Administrative Code, Title 30, Part
1, Chapter 113, Subchapter C, section 113.100.
* * * * *
[FR Doc. 05-5411 Filed 3-17-05; 8:45 am]
BILLING CODE 6560-50-P