
[Federal Register: April 2, 2010 (Volume 75, Number 63)]
[Rules and Regulations]               
[Page 16671-16675]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02ap10-14]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0089; FRL-9132-3]

 
Approval and Promulgation of Implementation Plans; Texas; 
Revisions to Chapter 116 Which Relate to the Voiding of Permits and 
Extension of Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking a direct final action to approve severable 
portions of a submittal from the State of Texas, through the Texas 
Commission on Environmental Quality (TCEQ), on September 25, 2003, to 
revise the Texas Major and Minor New Source Review (NSR) State 
Implementation Plan (SIP). EPA is approving the State's repeal of a 
paragraph of the SIP rule pertaining to Texas Major and Minor NSR SIP 
and to approve the consequent renumbering of the SIP rule's paragraphs. 
We also are approving the new replacement rule as meeting the Minor and 
Major NSR SIP requirements for voiding of permits.
    We are approving the portion of the revision that addresses the 
recodification of the provision relating to the granting of one 18-
month extension of a permit as meeting the Minor and Major NSR SIP 
requirement for extensions of permits. The revision imposes 
requirements on permitees, requiring a review of the permit's 
underlying permit determinations before this SIP-approved extension can 
be granted. Finally, the revision provides for a second permit 
extension if certain conditions are met, including a health effects 
review. EPA is approving the new replacement rule for this second 
permit extension as meeting the Major and Minor NSR and NNSR SIP 
requirements.
    EPA finds that these changes to the Texas SIP comply with the 
Federal Clean Air Act (the Act or CAA) and EPA regulations, are 
consistent with EPA policies, and will improve air quality. This action 
is being proposed under section 110 and parts C and D of the Act.

DATES: This direct final rule is effective on June 1, 2010 without 
further notice, unless EPA receives relevant adverse comment by May 3, 
2010. 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 Docket ID No. EPA-R06-
OAR-2008-0192 by one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov: Follow 
the on-line instructions for submitting comments.
    (2) E-mail: Mr. Jeff Robinson at robinson.jeffrey@epa.gov. Please 
also cc the person listed in the FOR FURTHER INFORMATION CONTACT 
paragraph below.
    (3) 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.
    (4) Fax: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), at 
fax number 214-665-6762.
    (5) Mail: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
    (6) Hand or Courier Delivery: Mr. Jeff Robinson, Chief, Air Permits 
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733. Such

[[Page 16672]]

deliveries are accepted only between the hours of 8:30 a.m. and 4:30 
p.m. weekdays except for legal holidays. Special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2008-0192. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means that 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 http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket 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 docket are listed in the http://
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Permits 
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below 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 submittals, which are part of the EPA docket, are also 
available for public inspection at the State Air Agency 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: Ms. Melanie Magee, Air Permits Section 
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7161; fax 
number (214) 665-6762; e-mail address magee.melanie@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document wherever any 
reference to ``we,'' ``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. The State's Submittals
II. What Action Is EPA Taking?
III. EPA's Evaluation
    A. How Does the Current SIP Address the Voiding of Permits?
    B. What Revisions Did Texas Submit Relating to the Voiding of 
Permits?
    C. How Does the Current SIP Address the Extension of Permits?
    D. What Revisions Did Texas Submit Relating to the Extension of 
Permits?
IV. Final Action
V. Statutory and Executive Order Reviews

I. The State's Submittals

    On September 25, 2003, Texas submitted a SIP revision that included 
an amended section 116.115 that would delete the language in the SIP's 
section 116.115(b)(2)(A) relating to the voiding of permits and 
extensions of time to begin construction, renumber the paragraphs 
because of the deletion of (A), and transfer the substance to a new 
section 116.120. The new section 116.120 addresses the voiding of 
permits and the first 18-month permit extension and contains language 
from the SIP-approved section 116.115 with revisions. It is EPA's 
position that the Texas Permit Voiding Program is severable from all 
the other elements in the September 2003 submittal, including the Texas 
Permit Extension Program because it addresses the voiding and 
extensions of permits. The new section also adds criteria that must be 
met for the first permit extension to be granted and adds the 
opportunity for a second extension if certain conditions are met.
    The table below summarizes the changes that are in the September 
25, 2003 SIP submittal that EPA is addressing in today's action. A 
summary of EPA's evaluation of each section and the basis for this 
proposal is discussed in section III of this preamble. The Technical 
Support Document (TSD) includes a detailed evaluation of the referenced 
SIP submittal.
    Summary of each regulation that is affected by this action:

----------------------------------------------------------------------------------------------------------------
                                                                    Date
            Section                   Title            Date      adopted by   Changes adopted       Comments
                                                    submitted    the State       by State
----------------------------------------------------------------------------------------------------------------
              Chapter 116--Control of Air Pollution by Permits for New Construction of Modification
                                     Subchapter B--New Source Review Permits
                                         Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
30 TAC 116.115................  General and            9/25/03      8/20/03  Revisions and     Removed Section
                                 Special                                      Recodification    (b)(2)(A).
                                 Conditions.                                  of 30 TAC        Renumbered
                                                                              116.115.          Section
                                                                                                (b)(2)(B)-(I) to
                                                                                                Section
                                                                                                (b)(2)(A)-(H) as
                                                                                                a consequence of
                                                                                                the removal.

[[Page 16673]]


30 TAC 116.120................  Voiding of             9/25/03      8/20/03  New 30 TAC        New Section.
                                 Permits and                                  116.120.         Subsection
                                 Extensions of                                                  116.120(a) is
                                 Permits.                                                       substantially
                                                                                                the same as the
                                                                                                SIP rule
                                                                                                codified in
                                                                                                Subsection
                                                                                                116.115(b)(2)(A)
                                                                                                . Part of
                                                                                                subsection (b)
                                                                                                is substantially
                                                                                                the same as the
                                                                                                SIP rule
                                                                                                codified in
                                                                                                subsection
                                                                                                116.115(b)(2)(A)
                                                                                                .
                                                                                               Subsections (b)
                                                                                                and (c) add new
                                                                                                authority; they
                                                                                                provide for the
                                                                                                granting of more
                                                                                                than one 18-
                                                                                                month extension
                                                                                                to a permit.
----------------------------------------------------------------------------------------------------------------

II. What Action Is EPA Taking?

    We are approving the Texas Permit Voiding Program, as submitted by 
TCEQ on September 25, 2003, in Title 30 of the Texas Administrative 
Code (30 TAC) at 30 TAC Chapter 116--Control of Air Pollution by 
Permits for New Construction or Modification. This includes the 
following under Chapter 116: removal of 30 TAC 116.115(b)(2)(A) from 
the Texas SIP; renumbering of the SIP's 30 TAC 116.115(b)(2)'s 
subparagraphs as a consequence of the removal of subparagraph (A); and 
approval into the Texas SIP of the new 30 TAC 116.120(a) and (b). The 
existing Texas SIP at 30 TAC 116.115(b)(2)(A) and the newly submitted 
rule at 30 TAC 116.120(a) both require that persons issued a NSR permit 
under Chapter 116 begin construction of the facility within 18 months 
of permit issuance or the permit will be voided. Consequently, this 
action is merely a recodification of the SIP Permit Voiding 
requirements. It is EPA's position that the Texas Permit Voiding 
Program is severable from all the other elements in the September 2003 
submittal, including the Texas Permit Extension Program.
    In addition, the current SIP provision at 30 TAC 116.115(b)(2)(A) 
authorizes the Executive Director to grant an 18-month extension to 
this period. This language was transferred to this new subsection and 
relates to the grant of authority to the Executive Director to extend 
permits for 18 months. Thus, this action is a recodification of the SIP 
Permit Extension requirements.
    The new 30 TAC 116.120(b) and (c) add new criteria that must be met 
before the Executive Director may issue the first 18-month extension. 
The new criteria are that the permit will be reviewed for its 
underlying best available control technology (BACT), lowest achievable 
emission rate (LAER), offsets, and netting determinations before the 
first extension will be granted.
    The two new subsections also add new authority for the Executive 
Director to issue a second 18-month extension. EPA interprets section 
116.120(b) to require that the permit holder will comply with all the 
rules and regulations of the commission, Texas Clean Air Act, including 
protection of public health and physical property before this second 
permit extension may be granted. This second permit extension would be 
available in the case of a construction delay caused by litigation, not 
of the permit holder's initiation regarding the issuance of the permit. 
The Executive Director could also issue an extension if the permit 
holder has spent, or has committed to spend, 10% of the estimated cost 
of construction to a maximum of $5 million. As part of the Texas Permit 
Extension Program, EPA is approving 30 TAC 116.120(b) and (c), as 
meeting the Major and Minor NSR and NNSR SIP.
    We are publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no relevant 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 relevant adverse 
comments are received. This rule will be effective on June 1, 2010 
without further notice unless we receive relevant adverse comment by 
May 3, 2010. If we receive relevant adverse comments, we will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. We will address all public comments in a 
subsequent final rule based on the proposed rule. We will not institute 
a second comment period on this action. Any parties interested in 
commenting must do so now. 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.

III. EPA's Evaluation

A. How Does the Current SIP Address the Voiding of Permits?

    The current SIP includes 30 TAC 116.115 as adopted by the TCEQ on 
November 20, 2002, and approved by EPA on September 6, 2006 (71 FR 
52664). This section addresses the voiding of permits under 30 TAC 
subsection 116.115(b)(2)(A). This SIP rule provides that a permit or 
permit amendment under 30 TAC Chapter 116 is automatically void if the 
permit holder does one of the following: (1) Fails to begin 
construction within 18 months of the date of issuance; (2) discontinues 
construction for more than 18 consecutive months prior to completion of 
the project; or (3) fails to complete the project within a reasonable 
time.

B. What Revisions Did Texas Submit Relating to the Voiding of Permits?

    On August 20, 2003, TCEQ adopted revisions to 30 TAC Section 
116.115, and submitted them to EPA for SIP approval on September 25, 
2003. This amendment recodifies the language relating to the voiding of 
permits and transfers this rule language from 30 TAC Subsection 
116.115(b)(2)(A) to a new 30 TAC Subsection 116.120(a). The new 30 TAC 
Section 116.120(a) is located in 30 TAC Chapter 116, Subchapter B, 
Division 1, Permit Application.\1\ The

[[Page 16674]]

new 30 TAC 116.120(a) addresses the voiding of permits and contains 
language that already was SIP approved in 30 TAC 116.115(b)(2)(A). 
Because this is merely a recodification of an existing SIP requirement, 
EPA is approving the recodification of 30 TAC 116.115(b)(2)(A) in the 
Texas NSR SIP, as the new 30 TAC 116.120(a).
---------------------------------------------------------------------------

    \1\ A separate and unrelated 30 TAC Section 116.120 as adopted 
by TCEQ on June 17, 1998, Division 2: Compliance History, and 
approved by EPA on September 18, 2002 (67 FR 58697) remains in the 
SIP. The State has not requested that EPA remove this SIP rule from 
the Texas NSR SIP. There is no legal impediment to having two 
separate unrelated SIP requirements, each with the same rule number. 
If this action is finalized as proposed, the CFR regulatory language 
will show there are two 30 TAC 116.120's in the Texas SIP; the State 
adoption date and EPA's approval date will inform the public which 
30 TAC 116.120 relates to Permit Voiding and Permit Extensions.
---------------------------------------------------------------------------

C. How Does the Current SIP Address the Extension of Permits?

    The current SIP includes 30 TAC 116.115 as adopted by the TCEQ on 
November 20, 2002, and approved by EPA on September 6, 2006 (71 FR 
52664). This section addresses the granting of an 18-month extension of 
the date to begin construction under 30 TAC subsection 
116.115(b)(2)(A). The Executive Director may grant a one-time 18-month 
extension of the date to begin construction if the permit holder fails 
to begin construction within 18 months of the date of issuance of the 
permit.

D. What Revisions Did Texas Submit Relating to the Extensions of 
Permits?

    On August 20, 2003, TCEQ adopted revisions to 30 TAC Section 
116.115, and submitted them to EPA for SIP approval on September 25, 
2003. This amendment recodifies the language relating to the granting 
of the additional 18-month extension of a permit and transfers this 
rule language from 30 TAC Subsection 116.115(b)(2)(A) to a new 30 TAC 
subsection 116.120(b), introductory paragraph, third sentence. The 
language relating to the Executive Director's authority to grant an 18-
month extension of the permit was transferred to this new subsection, 
third sentence in the introductory paragraph. Because this is merely a 
recodification of an existing SIP requirement, EPA is approving the 
removal of 30 TAC 116.115(b)(2)(A) from the Texas NSR SIP, approving 
the consequent renumbering of the paragraphs in 30 TAC 116.115(b)(2), 
and approving the new 30 TAC subsection 116.120(b) as part of the Texas 
NSR SIP.
    The new section 116.120 subsections (b) and (c), would allow more 
than one 18-month extension, as is currently provided for in the Texas 
NSR SIP. First, the permit holder may be granted a second extension to 
begin construction in the case of a construction delay caused by 
litigation, not of the permit holder's initiation, associated with the 
issuance of a permit. The Executive Director also can issue a second 
extension if the permit holder has spent, or has committed to spend 10% 
of the estimated cost of construction to a maximum of $5 million.
    EPA interprets this revision to require that before a permit holder 
can obtain this second extension, however, the State must perform a new 
health effects analysis and the permittee must demonstrate that 
emissions from the facility will comply with all rules and regulations 
of the commission and the intent of the TCAA, including protection of 
the public's health and physical property. The State will also review 
again the present permit's BACT, LAER, netting or offsets as 
applicable, determinations.
    EPA is also interpreting subsection 116.120(b) to subject a permit 
for which a second extension is requested to public notice and comment 
as a permit amendment if the health effects analysis or original 
determination regarding BACT, LAER, netting or offsets as applicable, 
is changed.

IV. Final Action

    EPA is taking direct final action to approve revision of the SIP 
Texas submitted on September 25, 2003, that relate to Voiding of 
Permits, as part of the Texas NSR SIP. EPA is approving the revisions 
that relate to Extensions of Permits as part of the Texas NSR SIP for 
Major and Minor NSR and are merely the recodification of the existing 
SIP requirement. EPA also is approving some substantive portions of the 
revisions that add new criteria for the granting of the first permit 
extension as part of the Texas Major and Minor NSR and NNSR SIP. 
Finally, we are approving the new substantive portions of the revisions 
that add the authority to grant a second extension as part of the Texas 
NSR SIP for Major and Minor NSR and NNSR.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
action 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

[[Page 16675]]

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 June 1, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 24, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended under Chapter 116--Control of Air Pollution 
by Permits for New Construction or Modification, Subchapter B--New 
Source Review Permits, Division 1--Permit Application, to read as 
follows:
0
a. By revising the entry for Section 116.115, General and Special 
Conditions; and
0
b. Immediately following the entry for Section 116.116, by adding a new 
entry for Section 116.120, Voiding of Permits, under Division 1.
    The revision and addition read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                 State approval/
       State citation           Title/subject    submittal date  EPA approval date           Explanation
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
              Chapter 116--Control of Air Pollution by Permits for New Construction or Modification

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

                                                  * * * * * * *
Section 116.115.............  General and             8/20/2003  4/2/2010 [Insert
                               Special                            FR page number
                               Conditions.                        where document
                                                                  begins].

                                                  * * * * * * *
Section 116.120.............  Voiding of              8/20/2003  4/2/2010 [Insert
                               Permits.                           FR page number
                                                                  where document
                                                                  begins].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2010-7214 Filed 4-1-10; 8:45 am]
BILLING CODE 6560-50-P

