[Federal Register Volume 75, Number 44 (Monday, March 8, 2010)]
[Rules and Regulations]
[Pages 10416-10420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4833]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2006-0850; FRL-9123-7]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to Chapter 116 Which Relate to the Application Review
Schedule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
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 Application Schedule regulations submitted to EPA
on September 25, 2003 and January 24, 2008. The portions of the SIP
revision approved today would revise and recodify existing SIP
provisions addressing requirements related to the voiding of an
application for a permit or permit amendment and implement the
requirements of House Bill (HB) 3732, 80th Legislature (2007), and the
Texas Health and Safety Code, section 382.0566, concerning specific
deadlines for review and issuance of air permits for Advanced Clean
Energy Projects (ACEP). 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 taken under section 110 and parts C and D
of the Act.
DATES: This direct final rule is effective on May 7, 2010 without
further notice, unless EPA receives relevant adverse comment by April
7, 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-2006-0850 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 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-
2006-0850. 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 the
disclosure of which is restricted by statute. Do not submit information
through http://www.regulations.gov or e-mail, if you believe that it is
CBI or otherwise protected from disclosure. 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 along with any disk or CD-ROM
submitted. 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 and any form of encryption and should be free of any
defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
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
[[Page 10417]]
the appointment at least two working days in advance of your visit.
There will be a 15 cents 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: If you have questions concerning
today's direct final action, please 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 Submittal
A. Which Rules Did the State Submit?
B. What Action Is EPA Taking?
II. EPA's Evaluation
A. What Did Texas Submit on September 25, 2003?
B. What Is EPA's Evaluation of the September 25, 2003 SIP
Revision?
C. What Did Texas Submit on January 24, 2008?
D. What Is EPA's Evaluation of the January 24, 2008 SIP
Revision?
III. Final Action
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. Which Rules Did the State Submit?
On September 25, 2003 and January 24, 2008, the Texas Commission on
Environmental Quality (TCEQ) submitted proposed revisions to the Texas
State Implementation Plan (SIP) concerning the Application Review
Schedule, 30 TAC Chapter 116, Subchapter B, Division 1, Section
116.114. The TCEQ adopted these revisions on August 20, 2003 and
December 19, 2007, to address requirements related to the voiding of a
permit or permit amendment and Advanced Clean Energy Projects (ACEP),
respectively. The September 25, 2003 SIP submittal affects sections
116.12, 116.114, 116.115, 116.120, 116.143, 116.150, 116.170, 116.172,
116.313, 116.315, and 116.715. With this action, EPA is taking a direct
final action to approve the section 116.114 revisions. 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.1,2 The January
24, 2008 SIP submittal affects section 116.114 and with this review,
EPA is taking a direct final action to approve those changes. Tables 1
and 2 below summarize the changes that were submitted. A summary of
EPA's evaluation of each section and the basis for this direct final
rule is discussed in section II of this preamble. The Technical Support
Document (TSD) includes a detailed evaluation of the referenced SIP
submittals.
---------------------------------------------------------------------------
\1\ On March 20, 2009 (74 FR 11851) EPA approved 30 TAC 116.12,
116.143, 116.150, 116.170, 116.172, and 116.313.
\2\ On September 23, 2009 (74 FR 48480) EPA proposed to
disapprove 30 TAC 116.715.
Table 1--Summary of Each SIP Submittal That Is Affected by This Action
----------------------------------------------------------------------------------------------------------------
Date
Title of SIP submittal submitted to Date of state Regulations Proposed action
EPA adoption affected
----------------------------------------------------------------------------------------------------------------
Application Review Schedule.... 9/25/03 8/20/03 Revision to 30 TAC Approval.
116.114.
Advanced Clean Energy Project 1/24/08 12/19/07 Revision to 30 TAC Approval.
Permitting (HB 3732). 116.114.
----------------------------------------------------------------------------------------------------------------
Table 2--Summary of Each Regulation That Is Affected by This Action
--------------------------------------------------------------------------------------------------------------------------------------------------------
Date Date adopted
Section Title submitted by the state Proposed action Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 116.114....................... Application Review 9/25/03 8/20/03 Approval................ Revised paragraph (b)(2).
Schedule. 1/24/08 12/19/07 Approval................ Revised to address
requirements related to
Advanced Clean Energy
Projects (ACEP).
Redesignated existing
paragraph (a)(3) to (a)(4)
and added new paragraph
(a)(3).
--------------------------------------------------------------------------------------------------------------------------------------------------------
B. 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
September 18, 2002, 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 114--Application
Review Schedule into the Texas SIP. Since EPA's approval, Texas has
submitted three SIP revisions to section 116.114 on October 25, 1999,
September 25, 2003 and January 24, 2008. The September 25, 2003 and
January 24, 2008 rule revisions have
[[Page 10418]]
been determined to be severable from the October 25, 1999 revisions.
The October 25, 1999 revision to section 116.114 contains references to
the rules adopted by the State for 30 TAC Chapter 39, Public Notice. A
Limited Approval and Limited Disapproval (LALD) was proposed on
November 26, 2008 (73 FR 72001) for the section 116.114 revisions
submitted to EPA on October 25, 1999. Therefore, this action will not
include the section 116.114 revisions submitted on October 25, 1999,
which will be addressed separately.
A technical analysis of the September 25, 2003 and January 24, 2008
proposed rule revisions have found that these revisions are consistent
with the CAA, 40 CFR Part 51 and EPA policies. Therefore, EPA is taking
a direct final action to approve the revised section 116.114 rules
submitted on September 25, 2003 and January 24, 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 7, 2010
without further notice unless we receive relevant adverse comment by
April 7, 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.
II. EPA's Evaluation
A. What Did Texas Submit on September 25, 2003?
Texas submitted a revision to 30 TAC 116.114 requiring that an
application for a permit or permit amendment be voided in the event
deficient information supplied with the application is not corrected.
If an applicant fails to make a good faith effort to provide the
required information after two written notifications of the deficiency,
the Executive Director shall void the application and notify the
applicant. To further pursue the project following a voiding of the
application, the applicant shall submit an entirely new application on
a new form. The new application shall be subject to the state and
federal rules and regulations in place at the time of submittal. If a
new application is submitted within six months of the voidance of the
original application, the application shall be exempt from the fee
requirements under 30 TAC 116.140, Applicability. However, the
applicant must go through a new technical review and republish the
public notice.
The revised paragraph 116.114 (b)(2) adds language to state that
the Executive Director shall notify a permit applicant of voidances and
deficiencies in voided applications. The paragraph also states that the
submitted application shall meet the requirements of 30 TAC 116.111,
General Application. See section 116.114(b)(2).
B. What Is EPA's Evaluation of the September 25, 2003 SIP Revision?
This SIP revision changing the provisions contained in section
116.114 provides for the voiding of a deficient application for a
permit or permit amendment. Texas revised this section as described
below:
Voiding of deficient application. Under the existing
provisions in 30 TAC 116.114(b)(2), the applicant is notified of the
voidance of the application. The revision contained in this SIP
submittal specifies that the Executive Director will also notify the
applicant of the remaining deficiencies in the voided application. Also
included with this SIP revision is the requirement for meeting section
116.111, General Application.
Prior to the proposed final action for the 30 TAC 116.111
revisions, EPA approved 30 TAC 116.111, General Application, into the
existing SIP on September 18, 2002 (67 FR 58697). The references
contained in the 30 TAC 116.114 revisions were deemed to be consistent
with the existing SIP approved provisions for 30 TAC 116.111.
The CAA and federal regulations do not specify a procedure for the
voidance of a permit or permit application. However, the Federal
Regulations do provide in 40 CFR 51.163 that the SIP must include
administrative procedures to be applied in making determinations
specified in 40 CFR 51.160. Therefore, a State should establish an
administrative procedure for the voidance of permits or permit
applications that do not meet the requirements of the Act and the
applicable regulations. By adopting the voidance rule revisions, TCEQ
has improved the SIP provision for the voidance of permit applications
that do not meet the requirements contained in the SIP, including the
state approved provisions of section 116.111, General Application.
C. What Did Texas Submit on January 24, 2008?
In this SIP submittal, TCEQ amended 30 TAC 116.114 in 30 TAC
Chapter 116 to implement the requirements of House Bill 3732, 80th
Legislature (2007), and Texas Health and Safety Code, section 382.0566,
concerning specific deadlines for review and issuance of air quality
permits for ACEPs. The amendment revises section 116.114 by adding a
new paragraph (a)(3) and redesignating the existing paragraph (a)(3) to
paragraph (a)(4).
The new paragraph (a)(3) establishes a review schedule for
processing permits for ACEP. For any ACEP, the Executive Director of
the TCEQ must complete the technical review of the permit application
no later than nine months after declaring the permit application to be
administratively complete. See section 116.114(a)(3)(A). Not later than
nine months after declaring the permit application to be technically
complete, the TCEQ shall issue an order to either issue or deny the
permit. The TCEQ may extend this deadline up three months if it
determines that the number of complex pending applications for permits
under Chapter 116 will prevent the TCEQ from meeting the nine-month
deadline without creating an extraordinary burden on the resources of
the TCEQ. See section 116.114(a)(3)(B).
D. What Is EPA's Evaluation of the January 24, 2008 SIP Revision?
This SIP revision revises section 116.114 to establish a timeline
for processing ACEP permits. Texas revised this section as described
below:
Determination of administrative completeness. Under the
existing provisions in section 116.114(a)(1), the TCEQ must determine
whether any permit application, including ACEP applications, are
administratively complete within 90 days of receipt of the application.
Paragraph (a)(1) continues to provide the procedures for notification
for any permit application, whether it is administratively complete or
whether it is deficient. Paragraph (a)(2) continues to provide the
procedures for making a preliminary decision to approve or disapprove
an application. These provisions were not changed in this SIP revision.
Determination of technical completeness. The new section
[[Page 10419]]
116.114(a)(3)(A) provides that the Executive Director of the TCEQ shall
complete the technical review of the permit application for an ACEP not
later than nine months after declaring the permit application to be
administratively complete.
Issuance or denial of an ACEP permit. The new section
116.114(a)(3)(B) provides that the Executive Director of the TCEQ shall
issue a final order either to issue or to deny a permit for an ACEP not
later than nine months after declaring the permit application to be
technically complete. This paragraph provides that this deadline may be
extended up to three additional months whenever the Commission
determines that the number of complex pending applications for permits
under Chapter 116 will prevent the TCEQ from meeting the nine month
deadline without creating an extraordinary burden on the resources of
TCEQ. With regards to processing applications for new and modified
sources, the Federal regulations provide in 40 CFR 51.163 that the plan
must include the administrative procedures, which will be followed in
making the determination specified in paragraph (a) of section 51.160.
Accordingly, a State may establish a timeline for processing a permit
that the State determines is necessary to process a permit application
and make a final permit decision that meets the requirements of the Act
and the applicable regulations. In adopting the timeline for processing
ACEPs, Texas has set forth a schedule that will enable TCEQ to make
declarations whether the ACEP application is administratively complete,
technically complete, and to perform its evaluation of the permit
application to determine whether it meets the requirements in the SIP,
including the approved provisions of section 116.111, General
Application, and to make its determination whether to issue or deny the
permit. Thus this revised rule continues to ensure that new and
modified sources will be authorized based upon the State's finding that
the construction or modification of new and modified ACEP sources will
not: (1) Violate applicable portions of the control strategy; or (2)
interfere with attainment or maintenance of a national standard in the
State in which the proposed source (or modification) is located or in a
neighboring State; which satisfies the requirements of 40 CFR 51.160(a)
and (b). These rules also satisfy the requirements under section 110(l)
of the Act which provides that a plan revision must not interfere with
any applicable requirement concerning attainment and reasonable further
progress or any other requirement of the act. The application review
schedule provisions under review in this action will not interfere with
attainment or reasonable further progress or any other applicable
requirement of the Act.
III. Final Action
EPA is taking direct final action to approve revisions of the SIP
Texas submitted on September 25, 2003 and January 24, 2008. We have
determined that the revised rules clarify and strengthen the existing
SIP.
EPA is not taking action on the revisions to sections 116.12,
116.114, 116.115, 116.120, 116.143, 116.150, 116.170, 116.172, 116.313,
116.315, and 116.715 included in the September 25, 2003 SIP submittal.
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.
IV. 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. 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 7, 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).)
[[Page 10420]]
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: February 24, 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.
Subpart SS--Texas
0
2. The table in Sec. 52.2270(c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended by revising the entry for Section 116.114
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:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State
State citation Title/Subject approval/ EPA approval Explanation
submittal date date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Subchapter B--New Source Review Permits
Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 116.114............ Application 12/19/07 03/08/10 [Insert Subsections (a), (a)(1),
Review Schedule. FR page number (a)(2), (b), and (b)(1) in the
where document SIP are as adopted 6/17/98 and
begins]. approved by EPA 9/18/02, 67 FR
58697.
Subsection (b)(2) and
subsections (a)(3) and (a)(4)
are as adopted 8/20/03 and 12/
19/07, respectively, and
approved by EPA on 03/08/10
[Insert FR page number where
document begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2010-4833 Filed 3-5-10; 8:45 am]
BILLING CODE 6560-50-P