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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[TX-112-1-7421a; FRL-6449-5]

Approval and Promulgation of Air Quality Implementation Plans; Texas: Redesignation Request and Maintenance Plan for the Collin County Lead Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.

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SUMMARY: We are approving a request from the Texas Natural Resource Conservation Commission (TNRCC) to redesignate Collin County, Texas, to attainment for the lead National Ambient Air Quality Standard (NAAQS). This request was submitted to us by the Governor on August 31, 1999. The request was accompanied by a demonstration from TNRCC that continued compliance with the lead NAAQS can reasonably be expected. The maintenance plan also includes a summary of the measured lead concentrations from 1995-1998, an inventory of the annual lead emissions in the County, the permitted and enforceable conditions responsible for continued compliance with the lead NAAQS, and contingency measures, should a future violation occur.

DATES: This direct final rule is effective on December 13, 1999, unless we receive adverse written comments by November 12, 1999. If we receive adverse comments, we will publish a timely withdrawal of this direct final rule in the Federal Register, and inform the public that the rule will not take effect.

ADDRESSES: Written comments on this action should be addressed to Mr. Thomas H. Diggs, Chief, Air Planning Section, at our Regional Office listed below. Copies of the documents relevant to this action are available for public inspection during normal business hours at the following locations. Persons interested in examining these documents should make an appointment with the appropriate office at least 24 hours before the visiting day. Environmental Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Texas Natural Resource Conservation Commission, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Lt. Mick Cote, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7219.

SUPPLEMENTARY INFORMATION:
I. What action is EPA taking today?
II. Why is Collin County, Texas, designated as a lead nonattainment area?
III. What has the State done to address its lead issue in Collin County?
IV. What steps must Texas take to change the designation of Collin County from nonattainment to attainment for lead?
V. Does Collin County now meet the National Ambient Air Quality Standard (NAAQS) for lead?
VI. Has Texas met all its regulatory requirements in Collin County?
VII. Has there been an improvement in air quality in Collin County?
VIII. Has the State demonstrated that it can maintain its Compliance with the lead NAAQS in the future?
IX. Administrative Requirements.

I. What Action Is EPA Taking Today?

We are approving the lead maintenance plan for Collin County, Texas, and redesignating Collin County to attainment for the lead NAAQS. We are taking this action because the redesignation request and maintenance plan meet the requirements of the Clean Air Act (the Act). We are publishing this rule without prior proposal because we view this as a non-controversial action, and we 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 our proposal, should adverse comments be filed. This rule is effective on December 13, 1999, without further notice, unless we receive adverse comments by November 12, 1999.

If we receive adverse comments, we will publish a document that withdraws the final rule and informs the public that the rule will not take effect. Any adverse comments we have received will then be addressed in a subsequent final rule. We will not institute a second comment period on this action, so parties interested in commenting should do so at this time.

II. Why Is Collin County, Texas, Designated as a Lead Nonattainment Area?

The Gould National Battery, Incorporated (GNB) smelter, is located in Collin County, Texas, just southwest of the town of Frisco. It produces lead from spent lead-acid batteries and other lead bearing scrap. Dallas, Fort Worth, and Denton, Texas, are all located within 50 kilometers of the GNB facility. The facility currently produces 4.27 tons per year of lead emissions.

Since 1981, lead emissions from the GNB facility have been monitored continuously. Violations of the quarterly arithmetic average of 1.5 micrograms per cubic meter (ug/m³) NAAQS for lead were recorded in 1985, 1989, and 1990. Notices of violation were issued by the State to the GNB facility, with requirements to implement certain controls.

On November 6, 1991, pursuant to section 107(d)(5) of the Act, we published the notice of nonattainment designation in the Federal Register (57 FR 56694) for the portion of Collin County which encompasses the plant boundaries of the GNB facility. The effective date of the nonattainment designation was January 6, 1992.

III. What Has the State Done To Address Its Lead Issue in Collin County?

For States with areas designated to nonattainment for lead, a State Implementation Plan (SIP) must be developed, pursuant to sections 110(a)(2) and 172(c) of the Act, to show how the area will be brought into attainment. Texas was required to submit a SIP which included the following to us by July 6, 1993:

1. Provisions to assure that reasonably available control measures would be implemented; (2) a demonstration (including air quality modeling) that the SIP would provide for attainment as expeditiously as practicable, but no later than January 6, 1997;

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(3) a demonstration that reasonable further progress (RFP) would be made toward attainment by January 6, 1997; (4) a permit program for the construction and operation of new and modified major stationary sources; and (5) contingency measures, which would become effective without further action by the State or EPA, upon a determination by us that the area failed to achieve RFP or to attain the lead NAAQS by the applicable statutory deadline. For more information on the planning requirements associated with the nonattainment designation, see section 172(c)(9) of the Act and 57 FR 13498-13569 (April 16, 1992).

Texas held a public hearing on April 21, 1993, to entertain public comment on the lead SIP for Collin County. Following the public hearing, the SIP was adopted by the State and signed by the Governor on July 2, 1993, and submitted to us on July 6, 1993, as a proposed revision to the SIP.

We reviewed this SIP, and found that it contained all the provisions necessary for approval. We approved the Collin County lead SIP on November 29, 1994 (59 FR 60905).

IV. What Steps Must Texas Take To Change the Designation of Collin County From Nonattainment to Attainment for Lead?

According to section 107(d)(3)(E) of the Act, TNRCC must submit to us a revision to the lead SIP that contains the following five elements: (1) a demonstration that the area has attained the lead NAAQS; (2) a demonstration that the Collin County lead SIP is fully approved; (3) a demonstration that the area is in compliance with all other aspects of the Act; (4) there must be permanent and enforceable improvements in air quality in the area; and, (5) there must be a demonstration that the area will remain in compliance with the lead NAAQS. These five elements were submitted to us in a revision to the SIP, dated August 31, 1999. We have reviewed each element, and our evaluation of each is discussed below.

V. Does Collin County Now Meet the National Ambient Air Quality Standard (NAAQS) for Lead?

As mentioned previously, the NAAQS for lead is a quarterly arithmetic average of 1.5 ug/m³. We require eight consecutive quarters, or two calendar years, of air quality monitoring data showing attainment to justify a redesignation to attainment. The TNRCC submitted data from the three lead monitors at GNB for the years 1995-1998. The highest quarterly average recorded during this four-year period was 0.70 ug/m³. We have reviewed the air quality data and have determined that it is adequate to demonstrate attainment of the lead NAAQS. The specific ambient lead values recorded at the GNB site are included in the official file for this action, and can also be reviewed at our Aerometric Information Retrieval System website, located at http://www.epa.gov./airsdata/monitors.htm.

VI. Has Texas Met All Its Regulatory Requirements in Collin County?

The regulatory requirements for Collin County include: (1) having a fully approved lead attainment SIP as described under section 110(k) of the Act; (2) that an area must have met all the applicable requirements of section 110(a)(2) of the Act; and (3) that all requirements under part D of the Act have been met.

Section 110(k) of the Act outlines our responsibilities and establishes our timeframes for reviewing SIP submittals. Section 110(a)(2) of the Act delineates those general elements that must be included in any SIP submittal in order for us to consider it complete and approvable. The criteria listed ensures a State or Tribal agency's ability to properly implement a given control strategy. Examples of these general elements include, but are not limited to, such things as proof of statutory authority, enforceable emission limits, monitoring, reporting, and recordkeeping mechanisms. Part D of the Act lists additional requirements that are necessary in SIPs for nonattainment areas, and establishes additional guidelines for us to use when we review these SIPs. Subpart 1 of part D contains information on nonattainment area plans in general; Subpart 5 contains additional provisions related to lead nonattainment areas, particularly the deadlines for SIP submissions, and the associated attainment dates.

As we discussed previously, we reviewed the Collin County lead SIP and approved it, in accordance with sections 110 and part D of the Act, on November 29, 1994 (59 FR 60905).

VII. Has There Been an Improvement in Air Quality in Collin County?

A State must be able to reasonably attribute the improvement in air quality to permanent and enforceable emission reductions. The implementation of reasonably available control measures by the GNB facility provides enforceable and permanent emission reductions needed to attain and maintain the lead NAAQS. These control measures are contained in permits R-1147A and R-5466D, issued to GNB in 1990, and amended to incorporate the provisions of Board Orders 92-09(k) and 93- 12, issued to GNB in 1992 and 1993, respectively.

The control measures contained in permits R-1147A and R-5466D include process controls such as additional vent hoods, ductwork, an additional baghouse, and enclosed process and storage areas. Fugitive controls include paved roads, planted vegetation, and increased maintenance and cleanup procedures. The specifics of the control measures are discussed in the technical support document, included in the official file for this action.

The TNRCC will maintain the permanence of these conditions through enforcement of these permits, and GNB's compliance with the National Emission Standards for Hazardous Air Pollutants From Secondary Lead Smelters. Copies of permits R-1147A and R-5466D, which include the provisions of Board Orders 92-09(k) and 93-12, can be found in the official file for this action. We have concluded that the improvement in the air quality in Collin County, Texas, is permanent and enforceable.

VIII. Has the State Demonstrated That It Can Maintain Its Compliance With the Lead NAAQS in the Future?

Section 175(A) of the Act requires States that submit a redesignation request to include a maintenance plan to ensure that the attainment of NAAQS for any pollutant is maintained. This maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the approval of a redesignation to attainment. Eight years after the redesignation, States must submit a revised maintenance plan demonstrating attainment for the ten years following the initial ten year period. To provide for the possibility of future NAAQS violations, the maintenance plan must also contain such contingency measures as we deem necessary to assure that a State will promptly correct any violation of the NAAQS that occurs after redesignation.

The TNRCC demonstrated to us that the lead maintenance plan being approved in this action is adequate to maintain compliance with the lead NAAQS for at least ten years. The current annual emission rate of 4.27 tons per year was modeled in 1993 to show compliance with the lead NAAQS. Air quality data collected at the GNB facility since that time confirms that continued compliance with the lead NAAQS can reasonably be expected,

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given the permitted annual lead emission rate of 4.27 tons per year.

The control measures and lead emission limits included in the maintenance plan have been implemented and permitted at the GNB facility, and we expect these conditions to provide for the continued attainment of the lead NAAQS in Collin County. We therefore agree that the maintenance plan satisfies the requirement of section 175(A) of the Act to show maintenance of the lead NAAQS.

Section 175A of the Act also requires each maintenance plan to include contingency measures to be implemented should a future violation of the lead NAAQS occur. The maintenance plan identifies the future conditions upon which contingency measures would be triggered for implementation, and identifies four possible measures to be evaluated for implementation.

The future conditions that would trigger the implementation of one or more contingency measures are: (1) a violation of the 1.5 ug/ m³ quarterly average lead NAAQS, or (2) an increase in the 4.27 tons per year annual lead emission rate, unless the increase has been authorized through an approved permit modification, or new air dispersion modeling shows continued compliance with the lead NAAQS.

The following contingency measures have been submitted: (1) a new wheel-washing facility will be installed to reduce tracking in the yard area--estimated annual lead reduction is 27 pounds per year; (2) installation of a scale and automatic tuyere punching device at the blast furnace, to increase feed and flux control--estimated annual lead reduction is 30 pounds per year; and (3) any alternative measure proposed by GNB that gains lead reductions equivalent to those listed above. Any alternative must be approved by the TNRCC prior to implementation.

The schedule for implementation of a selected contingency measure is 30 days for notification to TNRCC that a trigger has been reached, an additional 60 days for selection of the appropriate contingency measure, and an additional 180 days for GNB to complete implementation.

The TNRCC has the legal authority to implement its lead program in Collin County, Texas, and to enforce those conditions imposed on GNB by permits R-1147A and R-5466D. We find that both the redesignation request and the maintenance plan submitted by TNRCC meet the requirements the Act and follow our guidance on the preparation of such requests.

IX. Administrative Requirements

A. Executive Order (E.O.) 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from E.O. 12866, entitled ``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a State, local or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, E.O. 12875 requires EPA to provide to the OMB a description of the extent of EPA's prior consultation with representatives of affected State, local and tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, E.O. 12875 requires EPA to develop an effective process permitting elected officials and other representatives of State, local and tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local, or tribal governments. The rule does not impose any enforceable rules on any of these entities. This action does not create any new requirements but simply approves requirements that the State is already imposing. Accordingly, the requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be ``economically significant'' as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

The EPA interprets E.O. 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to E.O. 13045 because it approves a State program.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, E.O. 13084 requires EPA to provide to the OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, E.O. 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian tribes. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because approvals under section 111 of the Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant

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economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Act forbids EPA to base its actions concerning SIPs on such grounds. See Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost- effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule can not take effect until 60 days after it is published in the Federal Register. This action is not a ``major'' rule as defined by 5 U.S.C. 804(2). This rule will be effective December 13, 1999.

H. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 13, 1999. 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

40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental regulations, Lead, Reporting and recordkeeping requirements.

40 CFR Part 81

Air pollution control, National parks, Wilderness areas.

Dated: September 24, 1999.

Pamela Phillips, Acting Regional Administrator, Region 6.

40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

2. Section 52.2270 is amended by revising paragraph (b)(1); adding paragraph (d), and adding a new entry to the end of the table in paragraph (e) to read as follows:

Sec. 52.2270 Identification of plan.

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(b) Incorporation by reference. (1) Material listed in paragraphs (c) and (d) of this section with an EPA approval date prior to December 31, 1998, were approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the Federal Register. Entries in paragraphs (c) and (d) of this section with EPA approval dates after December 31, 1998, will be incorporated by reference in the next update to the SIP compilation.

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(d) EPA-Approved State Source-Specific Requirements.

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

2. In Section 81.344, the lead table is amended by revising the entry for the Collin County Area to read as follows:

Sec. 81.344 Texas.

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