ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
PART
52
[
R06­
OAR­
2005­
TX­
0030;
FRL­_______________]

Approval
And
Promulgation
of
Implementation
Plans;

Texas;
Revisions
to
Regulations
for
Control
of
Air
Pollution
by
Permits
for
New
Construction
or
Modification
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Direct
final
rule.

SUMMARY:
The
EPA
is
taking
direct
final
action
to
approve
revisions
to
the
Texas
State
Implementation
Plan
(
SIP)
which
the
Texas
Commission
on
Environmental
Quality
(
TCEQ)

submitted
to
EPA
on
February
5,
2004.
The
adopted
amendments
revise
minimum
distance
limitation
permit
requirements
for
operation
of
new
and
modified
sources
to
allow
storage
of
an
inoperative
concrete
crusher
within
440
yards
of
a
residence,
school,
or
place
of
worship;
define
how
distance
measurements
should
be
taken
and
when
they
would
be
applicable
to
concrete
crushers
and
other
facilities;
and
allow
concrete
crushers
to
recycle
broken
concrete
at
temporary
demolition
sites
within
440
yards
of
nearby
buildings,
unless
the
facility
is
located
in
a
county
with
a
population
of
2.4
million
or
more,
or
in
a
county
adjacent
to
such
a
county.
The
TCEQ
also
revised
the
existing
distance
limitation
for
hazardous
waste
management
facilities
to
crossreference
duplicative
language
elsewhere
in
its
regulations.
This
action
is
being
taken
under
2
section
110
of
the
Federal
Clean
Air
Act
(
the
Act,
or
CAA).

DATES:
This
rule
is
effective
on
[
Insert
date
60
days
from
date
of
publication
in
the
Federal
Register]
without
further
notice,
unless
EPA
receives
adverse
comment
by
[
Insert
date
30
days
from
date
of
publication
in
the
Federal
Register].
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
EDocket
(
RME)
ID
No.
R06­
OAR­
2005­
TX­
0030,
by
one
of
the
following
methods:

°
Federal
eRulemaking
Portal:
http://
www.
regulations.
gov.
Follow
the
on­
line
instructions
for
submitting
comments.

°
Agency
Website:
http://
docket.
epa.
gov/
rmepub/
Regional
Material
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.

°
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
forward
a
copy
to
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.
3
°
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:
00
am
and
4:
00
pm
weekdays
except
for
legal
holidays.
Special
arrangements
should
be
made
for
deliveries
of
boxed
information.

Instructions:
Direct
your
comments
to
Regional
Material
in
RME
ID
No.
R06­
OAR­
2005­
TX­

0030.
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
website
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
4
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
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
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
am
and
4:
30
pm
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,
5
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.

Table
of
Contents
I.
What
Is
Being
Addressed
in
this
Document?

II.
Have
the
Requirements
for
Approval
of
a
SIP
Revision
Been
Met?

III.
What
Final
Action
is
EPA
Taking?

IV.
Statutory
and
Executive
Order
Review
I.
What
Is
Being
Addressed
in
this
Document?

We
are
taking
direct
final
action
to
approve
revisions
to
Title
30
of
the
Texas
Administrative
Code
(
30
TAC)
Section
116.112
­
Distance
Limitations
into
the
Texas
SIP.
The
TCEQ
adopted
these
revisions
on
January
14,
2004,
and
submitted
the
revisions
to
us
for
approval
as
a
revision
to
the
SIP
on
February
5,
2004.
The
rulemaking
implements
Texas
House
Bills
555
and
1287,
section
5.07,
78th
Legislature,
2003.

Section
116.112
currently
establishes
distance
limitations
for
lead
smelters,
hazardous
waste
facilities,
and
concrete
crushing
facilities.
These
distance
limitations
apply
to
new
and
modified
facilities
in
these
source
categories
as
conditions
of
their
new
source
review
authorizations.
The
existing
distance
limitations
were
approved
September
30,
2003
(
68
FR
6
56176).

The
revisions
to
section
116.112
which
TCEQ
submitted
to
EPA
on
February
5,
2004,

revised
the
section
116.112
as
follows:

<
The
revised
rule
allows
for
storage
of
an
inoperative
concrete
crusher
within
440
yards
of
a
residence,
school,
or
place
or
worship
if
the
residence,
school,
or
place
or
worship
was
in
use
at
the
time
the
owner
or
operator
filed
an
application
for
the
initial
authorization
to
operate
that
facility
at
that
location
with
the
TCEQ.

<
The
revised
rule
defines
how
distance
measurements
should
be
taken
and
when
they
would
be
applicable
to
distances
between
concrete
crushers
and
other
facilities.

<
The
revised
rule
provides
an
exemption
from
minimum
distance
limitations
for
concrete
crushing
which
results
from
on­
site
demolition
for
use
primarily
at
that
site.
The
exemption
is
limited
to
one
period
of
no
more
than
180
days
and
is
applicable
if
the
facility
is
not
located
in
a
county
with
a
population
of
2.4
million
or
more,
or
in
a
county
adjacent
to
such
county.

<
The
citation
of
the
distance
limitations
for
hazardous
waste
management
facilities
was
redesignated
from
section
116.112(
2)
to
section
116.112(
c)
and
revised
to
refer
to
the
duplicative
distance
limitations
for
such
facilities
in
30
TAC
section
335.204
(
relating
to
Unsuitable
Characteristics)
and
section
335.205
(
relating
to
Prohibition
of
Permit
Issuance).
These
cross­
referenced
sections
are
equivalent
to
the
former
provisions
of
section
116.112(
2).
The
TCEQ
limited
applicability
of
the
cross­
referenced
provisions
to
section
335.204,
as
amended
and
adopted
in
the
August
22,
2003
issue
of
the
Texas
Register
(
28
TexReg
6915),
and
section
335.205,
as
amended
and
adopted
in
the
7
November
9,
2001
issue
of
the
Texas
Register
(
26
TexReg
9135).
Thus
hazardous
waste
management
facilities
must
comply
with
the
distance
limitations
in
the
specific
versions
of
sections
335.204
and
335.205
identified
in
section
116.112(
c).
If
TCEQ
later
revises
section
335.204
or
section
335.205,
it
must
submit
an
appropriate
SIP
revision
to
EPA
to
incorporate
the
revised
version
of
section
335.204
or
section
335.205
into
section
116.112
and
receive
EPA
approval
in
order
for
EPA
to
recognize
the
revised
versions
of
these
sections.

The
Technical
Support
Document,
which
is
part
of
the
record
for
this
action,
contains
more
detailed
information
on
how
the
revision
meets
the
requirements
of
the
Act,
including
Section
110
and
implementing
regulations.

II.
Have
the
Requirements
for
Approval
of
a
SIP
Revision
Been
Met?

The
distance
limitations
in
section
116.112
are
a
discretionary
measure
not
mandated
by
the
CAA.
The
revision
strengthens
the
SIP
by
providing
protection
for
persons
located
near
a
lead
smelter,
concrete
crushing
facility,
or
hazardous
waste
management
facility.
By
restricting
the
location
of
these
types
of
facilities,
the
SIP
provides
additional
assurance
that
persons
located
near
these
types
of
facilities
will
not
be
adversely
affected
by
exposure
to
the
air
contaminants
emitted
from
these
facilities.
House
Bill
1287
restricts
Texas'
authority
to
provide
an
exemption
from
the
distance
limitation
and
measurement
requirements
to
facilities
for
which
the
Commission
determines
that
operation
at
the
location
will
cause
no
adverse
environmental
or
health
effects.

Texas
has
stated
that
compliance
with
this
condition
will
be
determined
during
protectiveness
review
as
part
of
permit
development.
The
permit
review
will
determine
compliance
with
section
8
116.111(
2)(
A)(
i)
of
the
existing
SIP,
which
provides
that
the
emissions
from
a
new
or
modified
facility
will
comply
with
all
rules
and
regulations
of
the
Commission
and
with
the
intent
of
the
Texas
Clean
Air
Act,
including
the
protection
of
the
health
and
physical
property
of
the
people.

Texas
noted
that
sources
must
also
comply
with
the
nuisance
provisions
of
section
101.4
of
the
SIP.
We
have
determined
that
the
revision
meets
the
requirements
of
40
CFR
51.160(
a)
and
section
110(
l)
of
the
CAA
because
it
sets
forth
legally
enforceable
procedures
that
require
the
TCEQ
to
determine
whether
the
construction
or
modification
will
result
in
a
violation
of
applicable
portions
of
the
control
strategy
or
will
interfere
with
attainment
or
maintenance
of
a
national
standard.
The
revision
also
meets
the
requirement
of
40
CFR
51.160(
e)
to
identify
types
of
facilities
that
will
be
subject
to
review.

III.
What
Final
Action
is
EPA
Taking?

We
are
approving
as
a
revision
to
the
Texas
SIP
revisions
of
30
TAC
section
116.112
­

Distance
Limitations,
which
Texas
submitted
on
February
5,
2004.
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
[
FEDERAL
REGISTER
OFFICE:
insert
date
60
days
from
date
of
publication
in
the
Federal
Register]
without
further
notice
unless
we
receive
adverse
comment
by
[
FEDERAL
REGISTER
OFFICE:
insert
date
30
days
from
date
of
publication
in
the
Federal
Register].
If
we
receive
adverse
comments,
we
will
publish
a
timely
withdrawal
in
the
Federal
Register
informing
the
public
that
9
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.

IV.
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
(
Public
Law
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
10
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
11
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.

section
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
[
FEDERAL
REGISTER
OFFICE:
insert
date
60
days
from
date
of
publication
of
this
document
in
the
Federal
Register].
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,

Incorporation
by
reference,
Intergovernmental
relations,
Lead,
Nitrogen
oxides,
Ozone,

Particulate
matter,
Reporting
and
recordkeeping
requirements,
Sulfur
oxides,
Volatile
organic
compounds
11/
30/
05
Dated:
/
s/
Carl
E.
Edlund
12
Acting
Regional
Administrator,
Region
6.
13
40
CFR
part
52
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.
The
table
in
§
52.2270(
c)
entitled
"
EPA
Approved
Regulations
in
the
Texas
SIP"
is
amended
by
revising
the
entry
for
Section
116.112
to
read
as
follows:

§
52.2270
Identification
of
plan.

*
*
*
*
*

(
c)
*
*
*

EPA
Approved
Regulations
in
the
Texas
SIP
State
citation
Title/
Subject
State
approval
/
Submittal
date
EPA
approval
date
Explanatio
n
*
*
*
*
*
*
*

Chapter
116
(
Reg
6)
­
Control
of
Air
Pollution
by
Permits
for
New
Construction
or
Modification
*
*
*
*
*
*
*

Subchapter
B
­
New
Source
Review
Permits
Division
1
­
Permit
Application
*
*
*
*
*
*
*

Section
116.112
Distance
Limitations
01/
14/
04
[
Insert
date
of
FR
publication]
[
Insert
FR
page
number
where
document
begins]

*
*
*
*
*
*
*
