
[Federal Register: March 11, 2010 (Volume 75, Number 47)]
[Rules and Regulations]               
[Page 11464-11468]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11mr10-11]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0192; FRL-9125-9]

 
Approval and Promulgation of Implementation Plans; Texas; 
Revisions to Chapter 116 Which Relate to the Permit Renewal Application 
and Permit Renewal Submittal

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking a direct final action to approve revisions to 
the applicable State Implementation Plan (SIP) for the State of Texas 
which relate to the Permit Renewal Application and Permit Renewal 
Submittal regulations. These portions of the SIP revisions approved 
today would address requirements related to the timeline for the 
submittal of an application for permit renewal. 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 May 10, 2010 without 
further notice, unless EPA receives relevant adverse comment by April 
12, 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:[sol][sol]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:[sol][sol]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 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:[sol][sol]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:[sol][sol]www.regulations.gov or e-mail. The 
http:[sol][sol]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:[sol][sol]www.regulations.gov your e-mail address will be

[[Page 11465]]

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:[sol][sol]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:[sol][sol]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. What Did Texas Submit for the Permit Renewal Application 
Section?
    B. What Is EPA's Evaluation of the Permit Renewal Application 
Revisions?
    C. What Did Texas Submit for the Permit Renewal Submittal?
    D. What Is EPA's Evaluation of the Permit Renewal Submittal 
Revisions?
IV. Final Action
V. Statutory and Executive Order Reviews

I. The State's Submittals

    On December 15, 1995, July 22, 1998, and September 4, 2002, the 
Texas Commission on Environmental Quality (TCEQ) submitted proposed 
revisions to the Texas State Implementation Plan (SIP) concerning the 
Permit Renewal Application, 30 TAC Chapter 116, Subchapter D, Section 
116.311--Permit Renewal Application. The December 15, 1995 and July 22, 
1998 revisions were superseded and rendered moot by revisions submitted 
to EPA on September 4, 2002 because they repealed the earlier versions 
of the same provisions addressed in that submittal. The September 4, 
2002 SIP revision recodified the existing provision of section 
116.311(c) into a new section 116.315--Permit Renewal Submittal. The 
SIP submittals of 30 TAC 116.311 dated July 22, 1998 and September 4, 
2002 have other provisions that have not been evaluated in any prior 
action and are severable from the provisions that we are approving in 
this action because the revisions being addressed here are ministerial 
and non-controversial in nature. Additional information related to 
these SIP submittals are contained in the Technical Support Document 
(TSD).
    Revisions to the Permit Renewal Submittal section were submitted by 
TCEQ to EPA on September 25, 2003 and May 30, 2008. The September 25, 
2003 SIP submittal revisions state that an application for permit 
renewal must be submitted at least six months, but no earlier than 18 
months prior to the permit expiration date. Also included within the 
revision is a provision for the Executive Director to approve 
applications before or after this specified time period. Following the 
passage of the Texas Senate Bill 1673 (SB 1673), 80th Legislature, 
2007, TCEQ submitted to EPA revisions to section 116.315 on May 30, 
2008 to allow the Commission to process a renewal application at the 
same time as an amendment for a preconstruction permit, provided the 
amendment application is filed not more than three years before the 
date the permit is scheduled to expire and is subject to public notice 
requirements. The revisions were adopted by the state on May 7, 2008. 
With this action, we are approving these revisions and recodifications 
of the Permit Renewal Section.
    The table below summarizes the changes that were submitted and are 
affected by this 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 TSD includes a detailed evaluation of the referenced SIP 
submittals.

----------------------------------------------------------------------------------------------------------------
                                                               Date        Date adopted
               Section                       Title           submitted     by the state          Comments
----------------------------------------------------------------------------------------------------------------
30 TAC 116.311......................  Permit Renewal           12/15/95*       11/16/95*  Renamed previously SIP
                                       Application.                                        approved Subsection
                                                                                           (c) to subsections
                                                                                           (d) and (e).
                                                                7/22/98*        6/17/98*
                                                                  9/4/02         8/21/02  Removed pre-existing
                                                                                           non-SIP approved
                                                                                           subsections (d) and
                                                                                           (e) and recodified to
                                                                                           a new 30 TAC 116.315
                                                                                           (a) and (b).
30 TAC 116.315......................  Permit Review               9/4/02         8/21/02  Initial adoption.
                                       Submittal.
                                                                 9/25/03         8/20/03  Revised previously
                                                                                           recodified subsection
                                                                                           (a); New subsection
                                                                                           (b); Redesignated
                                                                                           former recodified
                                                                                           subsection (b) to
                                                                                           subsection (c).

[[Page 11466]]


                                                                 5/30/08          5/7/08  Revised subsection
                                                                                           (a); New subsection
                                                                                           (c); Redesignated
                                                                                           former subsection (c)
                                                                                           to subsection (d).
----------------------------------------------------------------------------------------------------------------
* Because Texas Repealed and resubmitted each section under Subchapter D in its 7/22/98 submittal, our analysis
  includes 12/15/95 and 7/22/98 SIP submittal together.

II. What Action Is EPA Taking?

    We have evaluated the SIP submissions for consistency with the CAA, 
NSR regulations for major and minor sources in 40 CFR Part 51, and the 
approved Texas SIP. We have also reviewed the rules for enforceability 
and legal sufficiency. In this review, we have identified that on March 
10, 2006, EPA approved revisions to Title 30 of the Texas 
Administrative Code (30 TAC), Chapter 116--Control of Air Pollution by 
Permits for New Construction or Modification, Section 311--Permit 
Renewal Application into the Texas SIP. Since EPA's approval, Texas has 
submitted three SIP revisions to section 116.311(c) on December 15, 
1995, July 22, 1998 and September 4, 2002. The December 15, 1995 and 
July 22, 1998 rule revisions to 116.311(c) are superseded by the 
September 4, 2002 SIP submittal. Included in the September 4, 2002 
revision to section 116.311, is the recodification of existing 
severable provisions from section 116.311(c) to a new section 116.315--
Permit Renewal Submittal.
    On September 25, 2003, TCEQ submitted to EPA changes to the new 
section 116.315. As a result of the passage of the Texas Senate Bill 
1673 (SB 1673), 80th Legislature, 2007, TCEQ submitted additional 
revisions to section 116.315 on May 30, 2008. The revisions include 
provisions allowing the Commission to process a renewal application at 
the same time as an amendment for a preconstruction permit, provided 
the amendment application is filed not more than three years before the 
date the permit is scheduled to expire and are subject to public notice 
requirements.
    A technical analysis of the submittals for the Permit Renewal 
Application and Permit Renewal Submittal sections has found that these 
changes are consistent with the CAA, 40 CFR Part 51 and EPA policies. 
Therefore, EPA is taking a direct final action to approve the revision 
and recodification of section 116.311(c) to the new section 116.315 
rules submitted on December 15, 1995, July 22, 1998, September 4, 2002, 
September 25, 2003 and May 30, 2008.
    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 May 10, 2010 
without further notice unless we receive relevant adverse comment by 
April 12, 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. What Did Texas Submit for the Permit Renewal Application Section?

    The provisions for 30 TAC 116.311--Permit Renewal Application were 
submitted to EPA on August 31, 1993 and April 29, 1994. EPA approved 
the submitted revisions on March 10, 2006 (71 FR 12285) and became 
effective on May 9, 2006. Since EPA's last approval for this section, 
TCEQ has submitted three SIP revisions to EPA for the Permit Renewal 
Application section on December 15, 1995, July 22, 1998 and September 
4, 2002. The SIP revisions submitted to EPA on December 15, 1995 and 
July 22, 1998 are superseded by the SIP revision submitted September 4, 
2002. The September 4, 2002 SIP submittal also includes several 
revisions that remain under review and will not be addressed in this 
action. However, with this action, we are approving the recodification 
and revision of the existing provisions of section 116.311(c) to a new 
section 116.315--Permit Renewal Submittal.

B. What Is EPA's Evaluation of the Permit Renewal Application 
Revisions?

    The SIP revisions for section 116.311--Permit Renewal Application 
revise and recodify the existing provisions. The revisions approved 
with this action are described below:
     Subsections (d) and (e): The provisions in subsections (d) 
and (e) are currently approved as subsection (c). The 1995 and 1998 SIP 
revisions reorganized these provisions as subparagraphs (d) and (e) and 
made non-substantive changes. In the September 4, 2002, SIP submittal; 
these provisions were recodified into a new 30 TAC 116.315(a) and (b).

C. What Did Texas Submit for the Permit Renewal Submittal?

    Revisions to the Permit Renewal Submittal were submitted to EPA on 
September 25, 2003 and included several non-substantive changes. 
However, as a result of the passage of the Texas Senate Bill 1673 (SB 
1673), 80th Legislature, 2007 on May 30, 2008, TCEQ submitted to EPA 
changes to the Permit Renewal Section to revise and recodify this 
section's provisions.

D. What Is EPA's Evaluation of the Permit Renewal Submittal Revisions?

    Section 116.315--Permit Renewal Submittal allows the Commission to 
process a renewal application at the same time as an amendment for a 
preconstruction permit, provided the amendment application is filed not 
more than three years before the date the permit is scheduled to expire 
and is subject to public notice requirements. The revisions approved 
with this action are described below:
     Subsection (a): This subsection is currently approved as 
30 TAC 116.311 (c). Subsection (c) was recodified and reorganized as 30 
TAC 116.311(d) and (e), submitted December 15, 1995 and July 22, 1998, 
with revisions, which EPA has not yet approved. On September 4, 2002, 
Texas recodified 30 TAC 116.311(d) and (e) as 30 TAC 116.315(a) and (b) 
with non-substantive changes. In the September 25, 2003 submittal, 
Texas changed the date for submitting a renewal application from 90 
days prior to the permit expiration date to no earlier than 18 months 
prior

[[Page 11467]]

to the expiration of the permit expiration date. In the May 30, 2008 
submittal, Texas revised the first sentence of subsection (a) to 
provide that the provisions apply, except as provided in subsection (b) 
and (c). EPA's technical review has found that this change is an 
improvement of the existing requirements. Therefore, we are approving 
the revisions to subsection (a).
     Subsection (b): In the September 4, 2002, submittal, the 
last sentence of subsection (a) was replaced with a new subsection (b) 
which provides that with approval of the Executive Director, an 
application for renewal may be submitted after the time period in 
subsection (a). This revised provision is broader than the current SIP 
provisions and is beyond the current CAA requirements and EPA NSR 
requirements. Therefore, by approving this revision into the SIP, the 
existing rule language will be clarified and enhanced.
     Subsection (c): This new subsection, submitted May 30, 
2008, provides that a renewal application with appropriate fee may be 
submitted at the same time as an amendment application to modify an 
existing facility as long as it is submitted not more than three years 
before the permit's expiration date and the amendment is subject to 
public notice requirements under Texas Health Code, section 382.056, 
Notice of Intent to Obtain Permit or Permit Review; Hearing. The Texas 
public participation and air permit rules may be found in 30 TAC 
Chapter 39 and 30 TAC 101, respectively, and are severable from the 
section 116.315 provisions. Because the revisions to this section 
affect the timing of permit renewals and do not change the requirements 
for public notice and permit fees, EPA is approving this change.
     Subsection (d): This was initially submitted as subsection 
(b) on September 4, 2002. This subsection was recodified as subsection 
(c) in the September 25, 2003, submittal, then recodified to subsection 
(d) in the May 8, 2008 submittal. Other than the two recodifications, 
no changes were made. The recodification of subsection (d) is a non-
substantial change; therefore, EPA is approving this revision.

IV. Final Action

    EPA is taking direct final action to approve severable portions of 
revisions to the SIP Texas submitted on December 15, 1995, July 22, 
1998, September 4, 2002, September 25, 2003, and May 30, 2008. We have 
determined that the revised rules clarify and enhance the existing SIP.
    Within the TSD, several sections of these SIP submittals are 
identified as being included in this action. Sections 116.115, 116.120 
and 116.315 are currently under review and EPA will act on these 
revisions separately. The remaining sections have been addressed by EPA 
in prior separate actions.

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 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 10, 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 2, 2010.
Al Armendariz,
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.

[[Page 11468]]

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, Subchapter D, as follows:
0
a. By revising the entry for Section 116.311, Permit Renewal 
Application; and
0
b. Immediately following the entry for Section 116.314, Review 
Schedule, by adding a new entry for Section 116.315, Permit Renewal 
Submittal.
    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     EPA approval date        Explanation
                                                          date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
              Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                          Subchapter D--Permit Renewals
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Section 116.311...............  Permit Renewal             4/6/1994  3/10/2006, 71 FR    The SIP does not
                                 Application.                         12285.              include subsection
                                                                                          (c). The requirements
                                                                                          of subsection (c) were
                                                                                          added to Section
                                                                                          116.315 and approved
                                                                                          by EPA on March 11,
                                                                                          2010 [Insert FR page
                                                                                          number where document
                                                                                          begins].
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Section 116.315...............  Permit Renewal             5/7/2008  March 11, 2010      .......................
                                 Submittal.                           [Insert FR page
                                                                      number where
                                                                      document begins].
----------------------------------------------------------------------------------------------------------------

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[FR Doc. 2010-5240 Filed 3-10-10; 8:45 am]
BILLING CODE 6560-50-P

