[Federal Register Volume 71, Number 51 (Thursday, March 16, 2006)]
[Rules and Regulations]
[Pages 13549-13551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2478]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R06-OAR-2005-TX-0016; FRL-8045-5]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Permits by Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving 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 plant 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 April 17, 2006.
ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) Docket ID No. R06-OAR-2005-TX-0016. All
documents in the docket are listed in the Regional Material in EDocket
(RME) index at http://docket.epa.gov/rmepub/, once in the system,
select ``quick search,'' then key in the appropriate RME Docket
identification number. 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 hard copy at
the Air Permit Sections (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,
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 [email protected].
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 Is the Background for This Action?
V. Why Are We Approving the Removal of Section 106.5?
VI. What Comment Did We Receive and What Is Our Response to the
Comment?
VII. Final Action
VIII. Statutory and Executive Order Reviews
I. What Action Are We Taking?
This action removes 30 Texas Administrative Code (TAC), section
106.5 from the Texas SIP. This section provided public notice for
concrete batch plants that 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
had 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 process prior to the effective date
of the standard permit. All authorization requests for concrete batch
plants that 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.
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\1\ A PBR is a permit which is adopted under 30 TAC Chapter 106,
which provides an alternative process for approving the construction
of new and modified facilities which Texas Commission on
Environmental Quality 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 that 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-
64545).
\2\ A standard permit is a permit which is adopted under 30 TAC
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 that contain
numerous similar sources. For further description of Texas
regulations concerning standard permits, see the discussion in our
November 14, 2003 approval (68 FR 64546-64547).
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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.
[[Page 13550]]
IV. What Is the Background for This Action?
This action addresses the SIP submittal by Texas to EPA by letter
dated June 28, 2004. In the submittal, Texas submitted its repeal of
section 106.5--Public Notice, which it had adopted June 9, 2004.
At this time, the Texas has resolved all of the outstanding
authorization requests as explained above; the maintenance of section
106.5 is no longer needed.
On September 28, 2005 (70 FR 56566), we published a direct final
rule approving the plan revisions that Texas submitted June 28, 2004.
We concurrently published a proposed rulemaking with the direct final
rule (70 FR 56612) and stated that if we received any adverse comment
by the end of the comment period we would withdraw the direct final
rule. We would then respond to the comments when we take final action
on the proposed approval. We received an adverse comment on the direct
final rule before the end of the comment period and consequently
withdrew our direct final rule on November 23, 2005 (70 FR 70736).
V. Why Are We Approving the Removal of Section 106.5?
40 CFR 51.161 requires public notice prior to approval of any new
or modified source. The process for issuing, revising and removing PBRs
is through rulemaking. A new or revised PBR must undergo public notice
and a 30-day comment period in order to satisfy the requirements of 40
CFR 51.161. The basis for approval of the Texas program for PBR with
regards to these requirements is discussed in our approval of Chapter
106 on November 14, 2003.
With the creation of the concrete batch plant standard permit,
concrete batch plants are no longer authorized by 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 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 permit for batch concrete
plants contains a provision which requires public notice for concrete
batch plants. This requirement for public participation under the
standard permit satisfies the requirements under 40 CFR 51.161. Our
approval of the public notice provisions for the standard permit for
Texas concrete batch plants is discussed in greater detail in our FR
notice of November 14, 2003. See 68 FR 64547. We found that public
notice provisions in standard permits meet the requirements of 40 CFR
51.161. See 68 FR 64545 and 64547. In addition, the public
participation requirements of the standard permit for concrete batch
plants are reinforced by an additional statutory public notice
requirement under Texas Health and Safety Code, section 382.058.
Consequently, our approval of the removal of section 106.5 is based on
the fact that Texas has provided sufficient regulatory and statutory
safeguards in its standard permit process to provide ample opportunity
for public comment and satisfy the applicable Federal requirements.
VI. What Comment Did We Receive and What Is Our Response to the
Comment?
Comment
In response to the parallel proposal to our direct final rule, we
received an adverse comment from the public. A citizen commented that
EPA is about to implement a rule that will limit the public notice with
regard to proposed construction of concrete batch plants. The commenter
further stated that this is a violation of his right to know about
things that may affect his life (health), liberty and pursuit of
happiness--a violation of the Constitution of the United States. He
inquired concerning what authority EPA has in this matter and what he
can do to stop this encroachment on public notice.
Response
Section 110 of the CAA provides for state submission and EPA review
of new and revised SIP submissions. Under section 110(l), a SIP
revision may not be approved if it will interfere with attainment,
reasonable further progress or any other requirement of the Act. The
removal of section 106.5 from the SIP will not interfere with
attainment, reasonable further progress or any other requirement of the
Act. As explained in more detail in the September 2005 direct final
rule, concrete batch plants are no longer subject to the PBR in Chapter
106. Rather, these facilities are subject to a standard permit adopted
by Texas in 2000 and revised in 2003. This standard permit establishes
public participation requirements for concrete batch plants and EPA has
previously found that those public participation requirements are
consistent with what is required by our new source review regulations
in 40 CFR 51.161. See 68 FR 64547 (November 14, 2003). All future
actions will be subject to public participation requirements in the
standard permit and all past actions taken under the PBR have been
resolved. Furthermore, the public participation procedures under the
standard permit will allow the same level of public involvement as the
public participation procedures in section 106.5. Thus, the removal of
section 106.5 from the approved SIP will not interfere with attainment,
reasonable further progress or any other applicable requirement of the
Act.
For these reasons, the commenter is incorrect that this action will
limit public notice regarding the proposed construction of concrete
batch plants. As discussed in detail in the September 2005, direct
final rule and in our November 2003 action approving the standard
permit, the standard permit requires public participation prior to its
application to a specific facility.
VII. 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.
VIII. 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
[[Page 13551]]
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 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. 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 15, 2006. 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,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: March 6, 2006.
Richard E. Greene,
Regional Administrator, Region 6.
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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
Sec. 52.2270 [Amended]
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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. 06-2478 Filed 3-15-06; 8:45 am]
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