[Federal Register Volume 75, Number 63 (Friday, April 2, 2010)]
[Rules and Regulations]
[Pages 16671-16675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7214]
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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.
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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 [email protected]. 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 [email protected].
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:
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Date
Section Title Date adopted by Changes adopted Comments
submitted the State by State
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Chapter 116--Control of Air Pollution by Permits for New Construction of Modification
Subchapter B--New Source Review Permits
Division 1--Permit Application
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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.
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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).
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\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.
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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
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State approval/
State citation Title/subject submittal date EPA approval date Explanation
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* * * * * * *
Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
* * * * * * *
Subchapter B--New Source Review Permits
Division 1--Permit Application
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* * * * * * *
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].
* * * * * * *
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[FR Doc. 2010-7214 Filed 4-1-10; 8:45 am]
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