Approval and Promulgation of Implementation Plans; Texas; Revisions to Regulations for Control of Air Pollution by Permits for New Sources and Modifications

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: September 18, 2002 (Volume 67, Number 181)]
[Rules and Regulations]
[Page 58697-58711]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18se02-8]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-104-1-7401a; FRL-7378-7]

Approval and Promulgation of Implementation Plans; Texas;
Revisions to Regulations for Control of Air Pollution by Permits for
New Sources and Modifications

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: The EPA is taking final action to approve revisions of the
Texas State Implementation Plan (SIP). Specifically, EPA is approving
revisions to regulations of the Texas Commission on Environmental
Quality (TCEQ) which relate to the permitting of new sources and
modifications. The EPA is approving revisions which recodify several
provisions of the existing SIP without substantive changes and will
strengthen the SIP as it pertains to permit alterations and the
permitting of new and modified sources. Approval of these revisions
will bring the SIP provisions relating to the permitting of new and
modified sources more closely in line with Texas' existing program.
This action is being taken under section 110 of the Federal Clean Air
Act, as amended (the Act, or CAA).

DATES: This final rule is effective on October 18, 2002.

ADDRESSES: Copies of documents relevant to this action, including the
Technical Support Document (TSD), are available for public inspection
during normal business hours at the following locations. Persons
interested in examining these documents should make an appointment at
least 24 hours before the visiting day.
Environmental Protection Agency, Region 6, Air Permits Section
(6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Stanley M. Spruiell of the Air Permits
Section at (214) 665-7212, or at spruiell.stanley@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' means EPA.

Table of Contents

I. What Are We Approving?
II. Background
III. Final Action
A. Are We Approving Proposed Revisions to Chapter 101?

[[Page 58698]]

B. Why Are We Approving the Revisions to Chapter 116?
C. Have We Approved Any Portions of the 1993 Submittal Prior to
Today's Action?
D. Are We Approving Provisions That Did Not Exist in the Former
SIP?
E. Are We Approving All Provisions of Chapter 116?
F. Are There Other Changes That We Are Approving?
G. What Is the Effect of Today's Action?
H. What Provisions of the Former SIP Are Replaced by the
Recodified Provisions Approved Today?
I. What Actions Are We Taking on the Provisions of the 1993
Submittal That We Previously Approved?
IV. Response to Comments
V. Administrative Requirements

I. What Are We Approving?

In today's action we are approving into the Texas SIP revisions of
Title 30 Texas Administrative Code (TAC), Chapter 116, ``Control of Air
Pollution by Permits for New Construction or Modification.'' The
Governor of Texas submitted the following revisions to 30 TAC Chapter
116 (Chapter 116) to the Administrator of EPA after adequate notice and
public hearing:

A. August 31, 1993 (the ``1993 submittal'')

The 1993 submittal includes revisions adopted by Texas on August
16, 1993. The 1993 submittal includes revisions to and recodification
of Chapter 116.\1\ The 1993 submittal serves as the base regulation for
subsequent revisions that TCEQ has adopted, or will adopt.
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\1\ The 1993 submittal also includes revisions to Chapter 101--
General Rules, Section 101.1--Definitions. For the reasons stated in
section III.A, we are not approving the 1993 changes to Section
101.1
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B. July 22, 1998 (the ``1998 submittal'')

This submittal includes revisions to Chapter 116 adopted by Texas
on June 17, 1998. It includes changes which Texas made under its
regulatory reform to simplify and clarify its rules.\2\ These changes
which do not involve substantive changes include: (1) Using shorter
sentences, (2) limiting each citation to one main concept, (3)
reordering requirements into a more logical sequence, and (4) using
more commonplace terminology.\3\
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\2\ The 1998 submittal also includes provisions for implementing
section 112(g) of the Act, and includes a new Section 116.15--
Section 112(g) definitions, and a new Subchapter C--Hazardous Air
Pollutants: Regulations Governing Construction or Reconstruction
Major Sources (Federal Clean Air Act (FCAA), Section 112(g), 40 CFR
part 63). We are taking no action on Subchapter C for the reasons
stated in section III.E.1.
\3\ The 1998 submittal also includes provisions which Texas
adopted subsequent to the 1993 submittal but not yet approved by
EPA. Except where otherwise indicated, we are taking no action on
revisions made after the 1993 submittal which are not substantially
equivalent to the 1993 submittal until we complete our review of
these subsequent revisions. See discussion in section III.E.2.
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On September 1, 2002, the Texas Natural Resource Conservation
Commission (TNRCC) changed its name to the Texas Commission on
Environmental Quality (TCEQ). The revisions to Chapter 116 which we are
acting upon herein were adopted prior to the agency changing its name
from TNRCC to TCEQ. All rules and regulations, orders, permits, and
other final actions taken by the TNRCC remain in full effect unless and
until revised by the TCEQ.
In today's action, consistent with the following discussion, we are
approving these revisions to Chapter 116 as revisions to the Texas SIP.

II. Background

On September 24, 2001 (66 FR 48796), we published a direct final
rule approving revisions to and recodification of Chapter 116. We
concurrently published a proposed rulemaking with the direct final rule
(66 FR 48850) and stated that if we received any adverse comments by
the end of the public comment period we would withdraw the direct final
rule. We would then respond to the comments when we take final action
on the proposed approval.
On October 24, 2001, we received comment letters from Public
Citizen and from Lowerre & Kelly (Lowerre), Attorneys at Law on behalf
of Quality of Life El Paso. We withdrew our direct final action on
November 23, 2001 (66 FR 58667).
In its October 24, 2001, comments, Public Citizen requested
additional time to comment on these SIP revisions. Public Citizen
requested the additional time to compare more fully the state's
submittal against the current SIP and applicable requirements. In
response to Public Citizen's request for additional time to comment on
the proposed SIP revisions, we reopened the comment period for 30 days
on March 20, 2002 (67 FR 12949). Public Citizen provided additional
comments on April 12, 2002.

III. Final Action

A. Are We Approving Proposed Revisions to Chapter 101?

On September 24, 2001 (as part of this action), we proposed to
approve revisions to Chapter 101, Section 101.1--Definitions.
Specifically, we proposed to approve a revised definition of
``nonattainment area'' and to reinstate the definition of ``de minimis
impact'' which we had inadvertently removed from Section 101.1 on
August 19, 1997 (62 FR 44083).\4\ We received no comments on our
proposed action to approve revisions to Section 101.1.
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\4\ Texas also removed several terms which relate to permitting
major sources and major modifications in nonattainment areas, and
simultaneously recodified those definitions into Section 116.12. We
approved the nonattainment definitions in Section 116.12 and the
removal of such terms from Section 101.1 in a separate action at 65
FR 43986 (July 17, 2000).
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On September 26, 2001, Texas submitted revisions to Section 101.1.
On November 14, 2001 (as part of a separate action), we approved the
revisions to Section 101.1. See 66 FR 57260. The revisions approved on
November 14, 2001, incorporate the revised definition of
``nonattainment area'' and reinstated the definition of ``de minimis
impact'' and are consistent with our September 24, 2001 proposal.
Accordingly, we have revised the TSD to show this change. We are not
approving revisions to Section 101.1 in this action.

B. Why Are We Approving the Revisions to Chapter 116?

Approval of these revisions to Chapter 116 will bring the
organizational structure and language of the Federally approved SIP for
Chapter 116 more closely in line with the Chapter as it currently
exists in the State's program. Our approval of these revisions will
also facilitate future revisions to Chapter 116, by enabling us to
approve such revisions into the current organizational structure. This
approval also better serves the State, the public, and the regulated
community by making the approved SIP more closely match the words and
format of the rules that Texas currently implements.

C. Have We Approved Any Portions of the 1993 Submittal Prior to Today's
Action?

We previously approved portions of the 1993 submittal in separate
actions as indicated in Table 1 below.

[[Page 58699]]

Table 1.--Provisions of 1993 Submittal Previously Approved by EPA
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Approval date Provisions approved
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09/27/95, 60 FR 49781.................. Table I, Major Source/
Modification Emission
Thresholds--in Section 116.12--
Nonattainment Review
Definitions.
08/19/97, 62 FR 44083.................. Section 116.10--definition of
``de minimis impact.'' \a\
Section 116.141(a), and (c)-
(e)--Determination of Fees
Section 116.160--Prevention of
Significant Deterioration
Review Requirements.
Section 116.161--Source Located
in an Attainment Area with
Greater than De Minimis
Impact.
Section 116.162--Evaluation of
Air Quality Impacts.
Section 116.163--Prevention of
Significant Deterioration
Permits Fees.
07/17/00, 65 FR 43986.................. Section 116.12--Nonattainment
Review Definitions.
Section 116.150--New Major
Source or Major Modification
in Ozone Nonattainment Area.
Section 116.151--New Major
Source or Major Modification
in Nonattainment Area Other
than Ozone.
Section 116.170(1) and (3)--
Applicability of Reduction
Credits.
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\a\ The definition of ``de minimis impact'' was repealed from Section
116.10 in the 1998 submittal. Today's action approves the State's
repeal of this definition from Section 116.10.

With respect to the sections identified above, today's action
approves the codification of these provisions into the organization
structure adopted in the 1998 submittal and any nonsubstantive changes
to the previously approved provisions.

D. Are We Approving Provisions That Did Not Exist in the Former SIP?

We are approving Section 116.116(c) which sets forth provisions for
permit alterations. Section 116.116(c) defines a permit alteration as a
variation to a representation in a permit application or in a general
or special condition of a permit that decreases the allowable emissions
or does not change the character or method of control of emissions. The
TCEQ must approve any request for permit alteration which may result in
an increase in off-property concentrations of air contaminants, may
involve a change in permit conditions, or may affect facility or
control equipment performance. Changes subject to permit alterations
involve no emissions increase. Like kind replacement of emissions units
and new emission units are not allowed under the permit alteration
provisions. Permit alterations are not granted for changes which
qualify for permit amendments under Section 116.116(b). Such permit
amendment is required for any change which involves an increase in
emissions or a change in the method of control. Examples of permit
alterations include:
(1) Changes to a special condition in a permit to add an annual
production rate for a unit that was inadvertently left out,
(2) Revising an emission point to show fugitive emissions and
emissions from a newly installed control device as two separate
emission points, and
(3) Changes to a special condition to reflect that primary seals
for external floating roof tanks may be liquid-mounted primary seals or
mechanical shoes. The use of alterations is limited only to changes
which involve no increase in emissions and no changes in the method of
control. Accordingly, such changes will not result in a violation of
the applicable portion of the control strategy \5\ or interfere with
attainment or maintenance of a national standard, thus meeting the
requirements of 40 CFR 51.160.\6\ Subsection (c) as submitted in 1998
is equivalent to the 1993 submittal.
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\5\ The term ``control strategy'' is defined in 40 CFR 51.100(n)
as a combination of measures designated to achieve the aggregate
emission reductions necessary for attainment and maintenance of
national ambient air quality standards.
\6\ 40 CFR 51.160 requires each SIP to contain legally
enforceable measures that enable the State to determine whether the
construction or modification of a facility, building, structure, or
installation, or combination thereof will result in: (1) A violation
of applicable portions of the control strategy; or (2) interference
with attainment of maintenance of a national standard in the State
in which the proposed source (or modification) is located or in a
neighboring state.
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We also received comments concerning our proposed approval of the
provisions for permit alterations. Section IV contains our response to
these comments.

E. Are We Approving All Provisions of Chapter 116?

In today's action, we are not approving the provisions of Chapter
116 identified below. We also received comments concerning our proposal
to take no action on these provisions. Section IV contains our response
to these comments.
1. Provisions Implementing Section 112(g) of the Act Concerning
Constructed or Reconstructed Major Sources of Hazardous Air Pollutants
(HAP)
We are taking no action on Subchapter C of Chapter 116--Hazardous
Air Pollutants: Regulations Governing Constructed or Reconstructed
Major Sources (FCAA, section 112(g), 40 CFR part 63), as submitted in
1998. The program for reviewing and permitting constructed and
reconstructed major sources of HAP is regulated under section 112 of
the Act and under 40 CFR part 63, subpart B. Under these provisions,
States establish case-by-case determinations of maximum achievable
control technology for new and reconstructed major sources of HAP. The
process for these provisions is carried out separately from the SIP
activities. For the reasons discussed above, we are not approving
Subchapter C of Section 116 as submitted in 1998.
In addition, and for the reasons discussed above, we are also not
approving other provisions of Chapter 116 which pertain to or refer to
Subchapter C. These provisions include:
. Section 116.15--Section 112(g) Definitions,
. Section 116.111(2)(K)--Hazardous Air Pollutants,
. Section 116.115(c)(2)(B)(ii)(I)--Special conditions for
sources subject to Subchapter C (Hazardous Air Pollutants),
. Section 116.116(b)(3)--Changes at Section 112(g)
facilities, and
. Section 116.130(c)--Applications subject to the
requirements of Subchapter C of Chapter 116 (relating to Hazardous Air
Pollutants).

[[Page 58700]]

2. Provisions of the 1998 Submittal Which Are Not Equivalent to the
1993 Submittal
We are approving the 1998 submittal to the extent that it is
equivalent to the 1993 submittal. The 1998 submittal includes new
provisions as well as numerous changes that Texas adopted subsequent to
the 1993 submittal and carried forward into the 1998 submittal. We are
still reviewing the new provisions and the changes carried forward from
rulemaking actions adopted subsequent to the 1993 submittal. However,
if we wait until we complete our review and evaluation of these
provisions, we would have to delay action on the portions of the 1998
submittal that we consider to be approvable. As stated above, we
believe that it is important to act on the provisions of the 1998
submittal that are consistent with the 1993 submittal to ensure that
the approved SIP more closely matches the rules that the TCEQ
administers and enforces.
Accordingly, today's action approves the 1998 submittal to the
extent that the 1998 submittal is equivalent to the provisions of the
1993 submittal that we are approving. At this time, we are taking no
action on the following provisions of the 1998 submittal that are not
equivalent to the 1993 submittal, except where otherwise indicated: \7\
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\7\ In some cases provisions of the 1998 submittal are readily
recognized to be consistent with the Act and have the effect of
strengthening the SIP even though they are not equivalent to the
1993 submittal. These provisions are identified in the TSD and where
identified are being approved in today's action.
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. The following definitions in Section 116.10--General
Definitions:

``actual emissions''--Section 116.10(1),
``allowable emissions''--Section 116.10(2),
``best available control technology''--Section 116.10(3),
``facility''--Section 116.10(4),
``grandfathered facility''--Section 116.10(6),
``maximum allowable emission rate table (MAERT)''--Section 116.10(8),
``modification of existing facility''--Section 116.10(9),
``new facility''--Section 116.10(10), and ``qualified facility''--
Section 116.10(14).

. Section 116.13--Flexible Permit Definitions;
. Section 116.14--Standard Permit Definitions;
. Section 116.110(a)(2)-(3) and (c) which respectively relate
to standard permits, flexible permits, and exclusions from permitting;
. Section 116.115(b) and (c)(2)(A)(i) which respectively
relate to general conditions and special conditions for sources subject
to standard permits;
. Section 116.116(e)-(f) which respectively relate to changes
to qualified facilities and use of credits;
. Section 116.117 which relates to Documentation and
Notification of Changes to Qualified Facilities;
. Section 116.118 which relates to Pre-Change Qualification;
. Section 116.132(c)-(d) which respectively relate to
additional alternate language public notice;
. Section 116.133(f)-(g) which respectively relate to
alternate language sign posting;
. Section 116.136--Public Comment Procedures; \8\
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\8\ In today's action, we are approving Section 116.136 as
submitted in 1993.
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. Subchapter F--Standard Permits; and
. Subchapter G--Flexible Permits.
We are reviewing the provisions which we are not acting upon in
this action. When we complete our review, we will take appropriate
action on these provisions in separate Federal Register actions. The
TSD contains a detailed evaluation which documents why we are taking no
action on these provisions.
3. Provisions of the 1993 Submittal Which Were Repealed in the 1998
Submittal
Texas repealed the following provisions from Chapter 116 in the
1998 submittal:
. Definitions of ``de minimis impact'' \9\ and ``emissions
unit'' in Section 116.10--General Definitions, and
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\9\ We previously approved the definition of ``de minimis
impact'' prior to its repeal from Section 116.10 in the 1998
submittal. Today, we are approving the repeal of this definition
from Section 116.10. We have not acted upon the other provisions
which were repealed in the 1998 submittal.
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. Section 116.110(b)--Operations Certificate.
These provisions of the 1993 submittal were repealed in 1998, and
are no longer a part of Chapter 116. Thus, we are not approving these
provisions of the 1993 submittal.
4. Emission Reductions: Offsets
In letters to TNRCC (now TCEQ) dated August 3, 1999, and September
27, 2000, we informed them that we had concerns relating to the
approval of Sections 116.170(2), 116.174, and 116.175. On the basis of
subsequent discussions with Texas on August 15, 2000, EPA and TCEQ have
agreed that it is appropriate to take no action on Sections 116.170(2),
116.174, and 116.175 in today's action. Our letter to the State on
September 27, 2000, confirmed this understanding. We will act on these
provisions in a separate action after TCEQ resolves the outstanding
concerns to our satisfaction. Additional information regarding our
concerns with these provisions is contained in the TSD.
5. Permit Exemptions
On December 29, 1998, Texas requested that we delay action on
approving Subchapter C--Permit Exemptions as submitted in 1993. In a
subsequent letter dated April 26, 1999, Texas provided its reason for
requesting that we delay approval of Subchapter C. Texas requested the
delay because of several bills that were before the Texas Legislature
which, if passed and signed into law, would affect the new source
permitting structure, including the exemptions from permitting. These
bills were passed and signed into law. Because we anticipate that Texas
will significantly revise and restructure its provisions for exemptions
from permitting, we are delaying action on Subchapter C (as submitted
in 1993) pending the submission of these SIP revisions.
Because we are taking no action on Subchapter C as submitted in
1993, the existing provisions of Section 116.6 (Exemptions), approved
August 13, 1982 (47 FR 35193) remain in the Texas SIP.
We also received comments concerning our proposed action relating
to Permit Exemptions. Section IV contains our response to these
comments.
6. Permit Renewals
The Governor submitted Subchapter D (Permit Renewals) of Chapter
116 in the 1993 submittal. However, the 1998 submittal incorporates
revisions that Texas adopted after the 1993 submittal and which we have
not approved. The changes significantly revise Subchapter D to the
extent that it is not equivalent to Subchapter D as submitted in the
1993 submittal. We have not completed our review of these changes and
are therefore taking no action on Subchapter D in today's action. We
will act on Subchapter D in a separate action following our review of
the changes adopted subsequent to the 1993 submittal.
7. Emergency Orders
The Governor submitted Subchapter E (Emergency Orders) as part of
the 1993 submittal. An Emergency Order authorizes the immediate action
for the addition, replacement, or repair of facilities or control
equipment, and

[[Page 58701]]

authorizes the associated emissions of air contaminants, whenever a
catastrophic event necessitates such construction. An applicant that
qualifies for an Emergency Orders would need to submit an application
under the requirements of Section 116.411.
On December 10, 1998, the Governor of Texas submitted additional
SIP revisions pertaining to Emergency Orders. In that submittal, Texas
recodified and revised the provisions pertaining to Emergency Orders
into 30 TAC chapter 35. We are still reviewing the December 10, 1998,
SIP revisions. We will act on the provisions relating to Emergency
Orders in a separate action.
In letters to Texas dated August 3, 1999, and September 27, 2000,
we identified concerns related to Subchapter E, submitted August 31,
1993, and with the revisions submitted December 10, 1998. On the basis
of subsequent discussions with Texas on August 15, 2000, the EPA and
TCEQ have agreed that it is appropriate to take no action on Subchapter
E, submitted August 31, 1993, and the SIP revisions submitted December
10, 1998, in today's action. Our letter to Texas on September 27, 2000,
confirmed this understanding. We will act on these provisions in a
separate action after TCEQ resolves the outstanding concerns to our
satisfaction. Additional information regarding our concerns with these
provisions is contained in the TSD.
We also received comments concerning our proposal to take no action
on Emergency Orders. Section IV contains our response to these
comments.

F. Are There Other Changes That We Are Approving?

On September 24, 2001, we proposed to approve Section 116.137 as
submitted in 1993. We proposed to approve the 1993 submittal of Section
116.137 based upon Texas making no changes to the regulatory text of
that Section in the 1998 submittal. Further review indicates that in
the 1998 submittal Texas changed the title of Section 116.137 from
``Notification of Final Action by the Texas Air Control Board'' to
``Notification of Final Action by the Commission''. Accordingly, we
have revised the TSD to show this change. We are approving the 1998
submittal of Section 116.137 in today's action.

G. What Is the Effect of Today's Action?

This action approves the recodification of several provisions of
Texas regulations for permitting new and modified sources as submitted
August 31, 1993, and July 22, 1978. Today's action replaces several
Sections of the former SIP with new Sections under the current
numbering system used by Texas in Chapter 116. By approving these
revisions, the SIP-approved version of Chapter 116 more closely
correlates with the numbering system currently used by Texas.

H. What Provisions of the Former SIP Are Replaced by the Recodified
Provisions Approved Today?

Table 2 below cross-references the recodified provisions that we
are approving to the corresponding provisions in the former SIP. The
table identifies the new SIP citation, the former SIP citation, the
adoption date of the section that we are approving, the title of the
Section, and any explanatory notes. Where noted, the ``comments''
column may identify portions of the ``New SIP Citation'' which we are
not approving in today's action. The reasons for not approving such
provisions identified in the ``comments'' column are provided in
section III and in the TSD.

Table 2.--Recodified Provisions of Chapter 116 Approved in This Action.
----------------------------------------------------------------------------------------------------------------
Date
adopted of
New SIP citation new SIP Former SIP citation Title Comments
citation by
state
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Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
Section 116.10................... 06/17/98 Sections 101.1, General Definitions. The New SIP Citation
116.3(a)(1)(B), and does not include
116.14(a)(7). Sections 116.10(1),
(2), (3), (4), (6),
(8), (9), (10), and
(14).
Section 116.11................... 06/17/98 Section Compliance History
116.14(a)(1)(6). Definitions.
----------------------------------
Subchapter B--New Source Review Permits
Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
Section 116.110.................. 06/17/98 Sections 116.1(a)- Applicability....... The New SIP Citation
(c), 116.2, and does not include
116.3(b). Sections
116.110(a)(2),
(a)(3), and (c).
Section 116.111.................. 06/17/98 Section 116.3(a).... General Application. The New SIP Citation
does not include
Section
116.111(2)(K).
Section 116.112.................. 06/17/98 Sections Distance limitations
116.3(a)(1)(B) and
116.3(a)(13).
Section 116.114.................. 06/17/98 Sections 116.3(f), Application review
116.5, schedule.
116.10(a)(1), and
116.10(e).
Section 116.115.................. 06/17/98 Section 116.4....... Special provisions.. The new SIP citation
does not include
Sections
116.115(b),
(c)(2)(A)(i), and
(c)(2)(B)(ii)(I).
Section 116.116.................. 06/17/98 Section 116.5....... Changes to The New SIP citation
facilities. does not include
sections
116.116(b)(3), (e),
and (f).
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[[Page 58702]]

Division 2--Compliance History
----------------------------------------------------------------------------------------------------------------
Section 116.120.................. 06/17/98 Section 116.14(b)... Applicability.......
Section 116.121.................. 06/17/98 Section 116.14(c)... Exemptions..........
Section 116.122.................. 06/17/98 Section 116.14(d)... Contents of
Compliance History.
Section 116.123.................. 06/17/98 Section 116.14(e)... Effective dates.....
Section 116.124.................. 06/17/98 Section 116.14(f)... Public notice of
compliance history.
Section 116.125.................. 06/17/98 Section 116.14(g)... Preservation of
existing rights and
procedures.
Section 116.126.................. 06/17/98 Section 116.14(h)... Voidance of permit
applications.
----------------------------------
Division 3--Public Notice
----------------------------------------------------------------------------------------------------------------
Section 116.130.................. 06/17/98 Section 116.10(a)(7) Applicability....... The new SIP citation
does not include
Section 116.130(c).
Section 116.131.................. 06/17/98 Section 116.10(a)(1) Public notification
and (2). requirements.
Section 116.132.................. 06/17/98 Section 116.10(a)(3) Public notice format The new SIP citation
and (4). does not include
Sections 116.132(c)
and (d).
Section 116.133.................. 06/17/98 Did not exist....... Sign posting The new SIP citation
requirements. does not include
Sections 116.134(f)
and (g).
Section 116.134.................. 06/17/98 Section 116.10(a)(5) Notification of
affected agencies.
Section 116.136.................. 08/16/93 Section 116.10(b)... Public comment
procedures.
Section 116.137.................. 06/17/98 Section 116.10(c)... Notification of
final action by the
Commission.
----------------------------------
Division 4--Permit Fees
----------------------------------------------------------------------------------------------------------------
Section 116.140.................. 06/17/98 Section 116.11(a) Applicability.......
and (e).
Section 116.141.................. 06/17/98 Section 116.11(b)... Determination of Today's action
fees. approves Section
116.141(b).
Sections
116.141(a), (c)-(e)
were previously
approved.
Section 116.143.................. 06/17/98 Section 116.11(c)- Payment of fees.....
(f).
----------------------------------------------------------------------------------------------------------------

I. What Actions Are We Taking on the Provisions of the 1993 Submittal
That We Previously Approved?

Table 3 below identifies previously approved provisions of the 1993
submittal. This action recodifies these previously approved provisions
in the format submitted in the 1998 submittal with nonsubstantive
changes.

Table 3.--Recodification of Previously Approved Provisions of the 1993 Submittal
----------------------------------------------------------------------------------------------------------------
Adoption
date of Approval date and
SIP citation rule Title Federal Register Comments
approved in page of previously
this action approved SIP
----------------------------------------------------------------------------------------------------------------
Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
Section 116.10................... 06/17/98 General Definitions 08/19/97, 62 FR Repealed.\a\
(definition of ``de 44083.
minimis impact'').
----------------------------------
Subchapter B--New Source Review Permits
Division 4--Permit Fees
----------------------------------------------------------------------------------------------------------------
Section 116.141(a), (c)-(e)...... 06/17/98 Determination of 08/19/97, 62 FR Today's action
Fees. 44083. approves
nonsubstantive
changes in 1998
submittal.
----------------------------------

[[Page 58703]]

Division 5--Nonattainment Review
----------------------------------------------------------------------------------------------------------------
Section 116.150.................. 02/24/99 New Major Source or 07/17/00, 65 FR
Major Modification 43944.
in Ozone
Nonattainment Area.
Section 116.151.................. 03/18/98 New Major Source or 07/17/00, 65 FR
Major Modification 43944.
in Nonattainment
Area Other than
Ozone.
----------------------------------
Division 6--Prevention of Significant Deterioration Review
----------------------------------------------------------------------------------------------------------------
Section 116.160.................. 06/17/98 Prevention of 08/19/97, 62 FR Today's action
Significant 44083. approves
Deterioration nonsubstantive
Requirements. changes in 1998
submittal.
Section 116.161.................. 06/17/98 Sources Located in 08/19/97, 62 FR Today's action
an Attainment Area 44083. approves
with a Greater than nonsubstantive
de Minimis Impact. changes in 1998
submittal.
Section 116.162.................. 08/16/93 Evaluation of Air 08/19/97, 62 FR
Quality Impacts. 44083.
Section 116.163.................. 08/16/93 Prevention of 08/19/97, 62 FR
Significant 44083.
Deterioration
Permits Fees.
----------------------------------
Division 7--Emission Reduction: Offsets
----------------------------------------------------------------------------------------------------------------
Section 116.170.................. 06/17/98 Applicability of 07/17/00, 65 FR Today's action
Reduction Credits. 43944. approves
nonsubstantive
changes in 1998
submittal.
----------------------------------------------------------------------------------------------------------------
\a\ The definition of ``de minimis impact'' was repealed from Section 116.10 in the 1998 submittal. Today, we
are approving the repeal of this definition from Section 116.10.

IV. Response to Comments

The following is a summary of the comments that we received October
24, 2001, and April 12, 2002, and our response to those comments. In a
separate document, we have included a more detailed response to
comments in the docket for this action. You may obtain a copy of this
response to comments by contacting the person identified in the section
entitled For Further Information Contact.
Comment 1: On October 24, 2001, Public Citizen commented that the
proposal to take ``no action'' is not consistent with section 110(k)(2)
of the Act which provides that, within 12 months of a determination
that a State submittal is complete, EPA shall act on the submittal in
accordance with section 110(k)(3). Section 110(k)(3) provides for full
approval or partial approval and partial disapproval. The only other
action available to EPA is conditional approval under section
110(k)(4). Taking no action on a SIP submittal after the 12 month
period is not an option under the Act. The deadlines for EPA action on
the 1993 and 1998 submittals have long since passed; thus EPA must
either approve or disapprove the provisions it has proposed to take no
action on.
On April 12, 2002, Public Citizen further commented that it does
not believe that EPA has the authority to ``take no action'' on
portions of Texas'' SIP submittal. The Act provides for approval,
disapproval or partial approval/disapproval within 12 months of a
completeness determination. Section 110(k)(3) of the Act.
Response 1: We are neither approving nor disapproving (taking no
action on) certain provisions of the Texas SIP submittals in this
action because we have outstanding questions regarding those provisions
and they remain under review. We believe it would be premature to
propose action on these provisions before we resolve our outstanding
questions with Texas. Our statements that we are taking no action on
those provisions should not be taken to mean that we never intend to
act on them. We will approve or disapprove those provisions in future
actions on the Texas SIP submittals (unless and to the extent that they
are withdrawn by Texas).
Comment 2: On October 24, 2001, Public Citizen commented that the
lack of EPA action makes the approved regulations extremely difficult,
if not impossible to interpret.
Response 2: As discussed in our September 24, 2001, action, this
action makes the approved SIP easier to understand because the SIP will
more closely match the State's program and the rules that Texas
currently implements.
Furthermore, the Table in 40 CFR 52.2270(c), ``EPA Approved
Regulations in the Texas SIP,'' clearly identifies the provisions that
we are approving. Additionally, for each entry in the Table, we clearly
identify for each Section of the State Regulation that we are approving
any provisions in that Section that are not included in the SIP under
the Column titled ``Explanation.''
The public can also access the current Federally-approved SIP on
the EPA Region 6 Web Site. We update the web site to include all SIP
revisions after the SIP revisions become effective. The public can
access this Web site, review, and download these approved regulations
at: http://www.epa.gov/earth1r6/6pd/air/sip/sip.htm.
The EPA Region 6 staff is available to provide assistance to any
person who wants information concerning what is required in the
approved
SIP. For this action, any person may obtain information and
assistance concerning the SIP regulations approved

[[Page 58704]]

by contacting the person identified in the section entitled For Further
Information Contact.
Finally, revising the existing SIP provisions of Chapter 116 will
make the Texas New Source Permitting Program easier to understand
because the revised provisions will be in the format that TCEQ uses. If
we retained the existing provisions of Chapter 116, then for purposes
of Federal administration, implementation, and enforcement, we would
have to rely upon the existing SIP citations which differ from the
TCEQ's regulations. This disparity would add to confusion and
misunderstanding concerning the applicable requirements that a source
must meet.
Comment 3: On October 24, 2001, Public Citizen commented that EPA
should assure that the provisions for which no action is taken are not
referenced in the provisions that are approved, which would constitute
tacit approval of such provisions.
On April 12, 2002, Public Citizen further commented that EPA is
taking no action on sections of the SIP that are referenced in sections
that EPA is approving. It is, therefore, often extremely difficult to
determine whether a particular provision will be given effect or not.
Response 3: The TSD contains an annotation of the 1993 and 1998
submittals. In the development of this annotation, we reviewed the
regulation that we proposed to approve to ensure that the provisions of
Chapter 116 do not reference the provisions that we did not propose to
approve. The regulations that we proposed to approve do not reference
provisions that we are not approving, except for certain references to
30 TAC Chapter 106--Permits by Rule discussed below. See Comment 4 for
further discussion of Chapter 106. As stated in the proposed action, we
will review the provisions that we did not approve in this action and
either approve or disapprove in separate actions.
Comment 4: On April 12, 2002, Public Citizen commented that while
EPA says it is not approving Texas' Chapter 106 exemption rules in this
action, EPA is approving 116.110(a)(4) which cross-references Chapter
106. Public Citizen also identified cross-references to Chapter 106 in
Sections 116.115(c)(2) and 116.116(d) and commented that ``[i]t is
unclear, therefore, whether EPA is authorizing sources to rely on the
Chapter 106 exemptions for authorization or whether sources are
required to obtain a permit under Section 116.111. Such confusion has
made it very difficult to comment on the proposal.''
Public Citizen further commented that because EPA is taking no
action on certain provisions of Subchapter C of Chapter 116, the
Federal Register states that EPA is leaving Section 116.6 regarding
exemptions in place. Section 116.6 provides that a permit shall not be
required for those sources exempted by the Executive Director of the
TCEQ because such sources will not make a significant contribution of
air contaminants to the atmosphere.
Public Citizen stated that this rule appears to be contrary to
section 110(i) of the Act which provides that an Executive Director-
granted variance should have no effect on the Federal enforceability of
a provision unless the variance is submitted to EPA and approved into
the SIP as a source-specific SIP provision. Leaving such a provision in
the SIP creates confusion regarding the effect of such variance.
Response 4: We proposed to approve Sections 116.110(a)(4),
116.115(c)(2)(A)(ii), 116.116(d) and (d)(1), and 116.143(2), which
contain cross references to Chapter 106. As discussed in the proposal,
Texas has not submitted Chapter 106. Chapter 106 is the TCEQ's program
for Permits by Rule, which replaced the provisions for Standard
Exemptions. Currently the approved SIP recognizes Standard Exemptions
in Section 116.6 which we approved on August 13, 1982 (47 FR 35193).
The 1993 submittal recodified the provisions for Standard Exemptions
into Subchapter C of Chapter 116. In 1996 Texas subsequently recodified
its provisions for Standard Exemptions into Chapter 106. In 2000, Texas
redesignated the Standard Exemptions to Permits by Rule.
The criteria and conditions that a source must meet to qualify for
a Permit by Rule are in Subchapter A of Chapter 106. Our comparison of
Subchapter A of Chapter 106 (as it currently exists in Texas rules)
with the provisions of Subchapter C of Chapter 116 (as submitted in
1993) indicates no substantive difference between the two sets of
regulations. Thus, TCEQ's current provisions which describe the
qualifications for a permit by rule are substantially the same as those
in Subchapter C of Chapter 116 in the 1993 submittal. These
requirements are substantially the same as the provisions for
Exemptions that currently exist in Section 116.6.
We are taking no action on Subchapter C of the 1993 submittal for
the reasons discussed in the proposal. See 67 FR 48800, (September 24,
2001). Because Texas has not yet submitted Chapter 106, we are
retaining Section 116.6 in the approved SIP. This retention will ensure
the continuity of Texas' program for recognizing the former Standard
Exemptions (now Permits by Rule). The continuity is maintained because
the Permits by Rule which TCEQ recognizes under Chapter 106 remain
consistent with the Standard Exemptions which are recognized under
Section 116.6.
The TCEQ has stated that it will submit relevant provisions of
Chapter 106 to EPA at a future date. However, we believe it necessary
to approve the 1993 and 1998 submittals of Chapter 116 now for reasons
stated in our proposed approval. When Texas submits Chapter 106 for
approval into the SIP, we will take appropriate action. If we approve
the provisions of Chapter 106 into the SIP, we will remove Section
116.6 from the SIP. Prior to approval of relevant provisions of Chapter
106 into the SIP, the references to Chapter 106 will be deemed
consistent with Section 116.6.
Section 116.6 was approved as part of the SIP in EPA's action on
August 13, 1982 (47 FR 35193). Thus, approval of Section 116.6 is not
part of this action, and references to it are for explanatory purposes
only. Under the circumstances, the provisions of Section 116.6 are not
subject to public comment or judicial review as part of this action.
Comment 5: On April 12, 2002, Public Citizen requested
clarification that Section 116.7--Request for Exemption,\10\ is being
deleted from the SIP. Public Citizen believes no such exemption
provisions should be included in the SIP.
---------------------------------------------------------------------------

\10\ In its April 12, 2002, letter, Public Citizen identified
the citation as 117.07. On April 17, 2002, Public Citizen, in
response to our inquiry on April 15, 2002, replied that the citation
was not correct, and that the correct citation is Section 116.7.
---------------------------------------------------------------------------

Response 5: We are deleting Section 116.7. We indicated in the
September 24, 2001, action that we are deleting all existing entries
under Chapter 116 in 40 CFR 52.2270(c), which includes Section 116.7.
Thus, our action is to delete Section 116.7.
Comment 6: On April 12, 2002, Public Citizen commented on Section
116.116(b)(1)(C), which EPA proposed to approve. This provision
replaces the existing SIP provision (Section 116.5) which provides that
the Executive Director of TCEQ must approve any change which results in
an increase in the discharge of the various emissions. Section
116.116(b)(1)(C) requires an application for a permit if the change
will cause ``an increase in the emissions rate for any air
contaminant.'' Public Citizen asserts that this is a substantive

[[Page 58705]]

difference that weakens the existing SIP provision. Under the revised
provision, according to Public Citizen, sources can vary from
application representations and increase their total emissions without
submitting an application as long as the emissions rate does not
increase. Public Citizen says that sources should be required to obtain
authorization and provide for public participation before varying from
representations and causing an increase in pollution.
Response 6: The EPA does not agree that the change weakens the SIP.
Section 116.116(b)(1) requires that a permit holder obtain a permit
amendment prior to varying from any representation (with regard to
construction plans or operation procedures in an application for a
permit) or permit condition if the change meets any of three the
criteria identified in Section 116.116(b)(1). The ``increase in the
emission rate of any air contaminant'' (Section 116.116(b)(1)(C)) is
one of three criteria that requires a permit amendment. The comment
indicates, without giving any examples, that there could be changes
where total emissions increase but the emission rate does not increase
and, therefore, a permit amendment would not be required. We believe
that would be a very unlikely circumstance. If ``emission rate'' is the
mass of pollutant emitted per unit of time, any increase in total
emissions must result in an increase in the emission rate for some unit
of time.
Furthermore, the scenario envisioned in the comment becomes even
more unlikely because any such change would also have to fail to
trigger one of the other two criteria to avoid the necessity of
obtaining a permit amendment. A permit amendment is also required if
the change causes a change in the method of control of emissions
(Section 116.116(b)(1)(A)) or a change in the character of the
emissions \11\ (Section 116.116(b)(1)(B)).\12\
---------------------------------------------------------------------------

\11\ As used in Texas' regulations, a change in the character of
emissions is a change in the emissions of an air contaminant or
change in emissions of a family of air contaminants or change in
emissions from chemical contaminant to another.
\12\ The criteria in 116.116(b)(1)(A) and (B) are also required
under the old SIP (Section 116.5) and are recodified without
substantive change.
---------------------------------------------------------------------------

It is also worth noting that Texas made this change to Section
116.116(b)(1)(C) in the 1998 submittal. As stated in its proposed
rulemaking of the 1998 submittal:

Changes have been made throughout the rules as the result of
ongoing efforts by the commission for regulatory reform. These
changes are for the purpose of simplification and clarification
only, and do not involve substantive changes in the requirements of
this chapter. In general, these changes involve using shorter
sentences, limiting each citation to one main concept, reordering
requirements into a more logical sequence, and using more
commonplace terminology. (Emphasis added).

23 TexReg 2953 (March 20, 1998). Texas' proposed rulemaking did not
specifically discuss changes made to Section 116.116(b)(1)(C), the
citation where Texas changed the reference of ``increase in the
discharge of the various emissions'' to ``increase in emissions rate.''
The change was made as the result of the regulatory reform, and was not
intended to represent a substantive change in the rule. Texas received
no comments on the 1998 revisions to Section 116.116(b)(1)(C) and
adopted this provision as proposed. See 23 TexReg 6988 (July 3, 1998).
Taken together, the recodification of the permit amendment
provisions from Section 116.5 to Section 116.116(b)(1) are adequate to
meet the requirements of 40 CFR 51.160(a).\13\ We therefore do not
agree with this comment. In today's action we are approving Section
116.116(b)(1).
---------------------------------------------------------------------------

\13\ See Footnote 6.
---------------------------------------------------------------------------

Comment 7: On October 24, 2001, and April 12, 2002, Public Citizen
commented that it objects to EPA's approval of authorization procedures
for new construction or modification that do not meet the requirements
of 40 CFR part 51. Specifically, Section 116.116(c) (permit
alterations) allows sources to make modifications without providing
public participation as required under 40 CFR 51.161, which provides
for notice and opportunity for public comment on proposed
modifications. The Act requires that citizens be provided with at least
a 30-day comment period on permit applications. 40 CFR 51.161. In
addition, an analysis of the effect of the construction or modification
on ambient air quality must be made available to the public.
On October 24, 2001, Lowerre commented that it objects to the
approval of Section 116.116 because it does not allow for public
participation on complex issues. Lowerre believes that TCEQ should
allow for at least a 30 day notice and reasonable time for public
comment for all permit changes that effect emissions or the
enforceability of the permit.
Response 7: We do not agree that a modification could qualify for a
permit alteration under the rules that we are approving. In NSR, a
modification is any change as defined in section 111(a)(4) of the
Act.\14\ Under section 111(a)(4) of the Act, a change is a modification
only if it results in an increase in the amount of emissions or results
in emissions of an air pollutant not previously emitted. Under Section
116.116(c) \15\ a permit alteration is only authorized in very limited
circumstances which do not include modifications, where allowable
emissions are decreased or where a change does not involve a change in
the method of control of emissions or the character of emissions or an
increase in the emission rate of any air contaminant. If a change
involves an increase in allowable emissions or a change in the method
of control or the character of emissions or an increase in the emission
rate of any air contaminant, the source would be required to obtain a
permit amendment under Section 116.116(b),\16\ which would include
public participation.\17\
---------------------------------------------------------------------------

\14\ Section 111(a)(4) of the Act defines the term
``modification '' as ``any physical change in, or change in the
method of operation of, a stationary source which increases the
amount of any air pollutant emitted by such source or which results
in the emission of any air pollutant not previously emitted.''
(Emphasis added)
\15\ Section 116.116(c), defines a permit alteration as:
(A) A decrease in allowable emissions;
(B) any change from a representation in a permit application,
general condition, or special condition in a permit that does not
cause:
(i) A change in the method of control of emissions;
(ii) A change in the character of emissions; or
(iii) An increase in the emission rate of any air contaminant.
(Emphasis added)
\16\ See our response to Comment 6 for a detailed discussion of
permit amendments under Section 116.116(b).
\17\ The TCEQ likewise does not consider permit alterations to
be modifications. Examples of alterations include name changes,
change of test date, and other ``clean up'' changes. See 66 FR 48801
(September 24, 2001) for further discussion on permit alterations.
---------------------------------------------------------------------------

Under 40 CFR 51.161, a state or local agency must provide for
public comment on information submitted by owners and operators as part
of the ``legally enforceable procedures in Sec. 51.160.'' 40 CFR
51.161(a). The provisions in 40 CFR 51.160 provide that a SIP must
contain ``legally enforceable procedures'' concerning the construction
or modification of a source.\18\ The ``legally enforceable procedures''
of Sec. 51.160 that are referenced in Sec. 51.161 apply only to
``construction or modification.'' Under Section 116.116(c), permit
alterations are defined to exclude changes which would qualify as
amendments under Section 116.116(b) and as modifications under section
111(a)(4) of the Act or under 40 CFR 51.160 and 51.161.

[[Page 58706]]

Accordingly, the TCEQ is not required to provide opportunity for
public comment on permit alterations.
---------------------------------------------------------------------------

\18\ See Footnote 6.
---------------------------------------------------------------------------

Comment 8: On October 24, 2001, Public Citizen commented that
permit alterations are not nonsubstantive and that nothing in Section
116.116 limits approval only to nonsubstantive changes. Public Citizen
asserts that Section 116.116(c)(2) references alteration applications
for changes that result in an increase in off-property concentrations
of air contaminants and which affect facility or control equipment
performance, which Public Citizen believes are substantive changes.
On April 12, 2002, Public Citizen commented that alterations are
not ``de minimis.'' Alterations could result in increases in total
emissions and, as acknowledged in the rule itself, could result in
increases in off-property concentrations of air contaminants. Section
116.116(c)(2)(A). The proposed alteration provisions should not be
approved into the SIP.
Response 8: Under Section 116.116(c)(1) a permit alteration is: a
decrease in allowable emissions; or any change from a representation in
a permit application, general condition, or special condition in a
permit that does not cause (i) a change in the character or method of
control of emissions; (ii) a change in the character of emissions; or
(iii) an increase in the emission rate of any air contaminant.
Section 116.116(c)(2) provides that requests for permit alterations
that must receive prior approval by the Executive Director are those
that: (A) Result in an increase in off-property concentrations of air
contaminants; (B) involve a change in permit conditions; or (c) affect
facility or control equipment performance.
The changes described in Section 116.116(c)(2) identify the types
of alterations ``that must receive prior approval by the executive
director.''
Such prior approval by the Executive Director assures that the
types of changes described in Section 116.116(c)(2) in fact qualify as
permit alterations as defined under Section 116.116(c)(1).
In addition, all permit changes, including alterations, must
satisfy the provisions of Section 116.111(2)(A)(i) which provides that
the ``emissions from the proposed facility will comply with all rules
and regulations of the commission and with the intent of the TCAA,
including protection of the health and physical property of the
people.'' (Emphasis added)
Thus when a proposed permit alteration will result in an increase
in off-property concentrations of air contaminants or will affect
facility or control equipment performance, the Executive Directive will
have assurance, provided through the technical review of the
application, that the emissions from a proposed permit alteration will
protect the health and physical property of the people before approving
a such request for an alteration.
Comment 9: On October 24, 2001, Lowerre cited a specific example of
a concrete products plant which it maintains is attempting to avoid
Title V permitting requirements \19\ by submitting several permit
modifications and forms, including permit alteration applications that
are included in Section 116.116. The applicant submitted the
applications in an attempt to establish Federally enforceable emission
limits below the 100 tons per year major source threshold for
particulate matter. Lowerre disagrees with TCEQ that the submission of
these applications satisfies the requirements of Title V. Lowerre
believes that unless and until all applications and other forms have
been approved, the concrete products facility continues to violate
Title V.
---------------------------------------------------------------------------

\19\ This refers to the provisions of Title V (Permits) of the
Act (42 U.S.C. 7661, 7661a-7661f) and the implementing regulations
under 40 CFR part 70 (State Operating Permit Programs). Texas' Title
V program was approved in a separate action. See 66 FR 63318
(December 6, 2001). Thus, approval of the Texas Title V program is
not part of this action, and references to it are for explanatory
purposes only. Under the circumstances, the Texas Title V program is
not subject to public comment or judicial review as part of this
action.
---------------------------------------------------------------------------

Lowerre further asserts that TCEQ has been reviewing these
applications in piecemeal fashion. While Title V would have allowed for
public participation, the TCEQ's piecemeal process for requiring
applications separately, especially for the permit alteration
applications, does not allow for public participation.
Lowerre also alleges that the source is attempting to circumvent
Title V and other rules that apply to major sources. The source is
located in an area of Texas which is nonattainment for particulate
matter. Lowerre further alleges that the source is subject to
nonattainment review for particulate matter. The source has invented a
circular argument in an attempt to avoid such requirements.
Response 9: These comments relate to implementation of Section
116.116 rather than to its approvability. This comment only points to
an isolated case in which a source allegedly failed to apply
appropriate limits on its potential to emit. The appropriate venue for
resolving such allegation is through the administration and enforcement
of the applicable requirements, not through the disapproval of the
regulation. The regulations that we are approving herein are adequate
to keep a source's potential to emit below defined and applicable major
source and major modification thresholds whenever a source desires to
limit its potential to emit below the defined and applicable major
source and major modification thresholds. Accordingly, we are approving
Section 116.116 as proposed.
Comment 10: On October 24, 2001, Public Citizen commented that EPA
should include an analysis that absence of the provisions for which EPA
is taking no action will not create gaps or ambiguities, or impediments
to implementation of the revised SIP.
Response 10: We have identified no gaps or ambiguities in the
approved SIP based upon the absence in the SIP of the provisions for
which we are taking no action. Furthermore, other than the sections
referring to Chapter 106, Public Citizen has identified no gaps or
ambiguities in the regulations that we proposed to approve. Consistent
with our response to Comment 4, we do not consider the references to
Chapter 106 as an impediment to implementation of the revised SIP.
Because we have not found other gaps or ambiguities, we do not consider
the approval of these changes as an impediment to implementation of the
revised SIP.
Comment 11: On April 12, 2002, Public Citizen commented on Sections
116.410-116.418. EPA should act to deny approval of Texas' Emergency
Orders provisions at Sections 116.410-116.418. The Act in section
110(i) provides that, with certain limited exceptions which do not
apply here, ``no order, suspension, plan revision, or other action
modifying any requirement of an applicable implementation plan may be
taken with respect to any stationary source by the State or by the
Administrator.'' The commission does not appear to be authorized to
exempt sources from Federal SIP requirements, even during catastrophic
conditions. The inclusion of such a provision in the SIP creates the
impression that the commission does have such authority; it should be
deleted.
Response 11: We are neither approving nor disapproving (taking no
action on) the provisions of the Texas SIP submittals relating to
Emergency Orders in this action. We have outstanding questions
regarding Texas' regulations concerning Emergency Orders, and they
remain under review. We believe it would be premature to propose action
before we resolve our outstanding questions with Texas. Our statements
that we are taking no action

[[Page 58707]]

on the regulations for Emergency Orders should not be taken to mean
that we never intend to act on them. We expect that we will approve or
disapprove those provisions in future actions (unless and to the extent
that they are withdrawn by Texas).
Comment 12: On October 24, 2001, Public Citizen commented that EPA
should include an analysis that State regulations that EPA is approving
meet the NSR requirements of the CAA and 40 CFR part 51, subpart I,
Sec. Sec. 51.160, 51.161, 51.165, and 51.166.\20\
---------------------------------------------------------------------------

\20\ We have already approved the provisions relating to 40 CFR
51.165 (Permit requirements) and 51.166 (Prevention of significant
deterioration of air quality) in separate Federal Register actions.
Thus the provisions which implement the requirements of 40 CFR
51.165 and 51.166 are not part of this action.
---------------------------------------------------------------------------

Response 12: With the exception of the provisions in Section
116.116(c),\21\ the provisions that we are approving are recodification
of previously SIP-approved provisions of Chapter 116. The recodified
SIP provisions that we have previously approved already meet the
provisions in 40 CFR 51.160 and 51.161. The provisions of 40 CFR 51.160
and 51.161 have not undergone substantial change since November 7, 1986
(51 FR 40669). Furthermore, the recodified provisions of Chapter 116
were not substantially changed in the 1993 and 1998 submittals. Thus
the recodified provisions continue to meet the requirements of 40 CFR
part 51, subpart I.
---------------------------------------------------------------------------

\21\ Additional discussion of how Section 116.116(c) meets the
requirements of 40 CFR subpart I is contained in the direct final
action (66 FR 48801, September 24, 2001), in section III.D of this
action, and in our responses to Comments 7 and 8.
---------------------------------------------------------------------------

We approved these revisions to Chapter 116 based upon our finding
that Chapter 116 meets the requirements under 40 CFR part 51, subpart
I. The existing regulations and the recodified provisions of the 1993
and 1998 submittals of Chapter 116 continue to meet these provisions of
the Act and subpart I.
Concerning our proposed approval of Section 116.116(c) concerning
Permit Alterations, we addressed how these provisions meet the
requirements of 40 CFR part 51, subpart I in the September 24, 2001,
action. See 66 FR 48801. Additional discussion is also included in our
response to Comments 7 and 8.
Comment 13: On October 24, 2001, Public Citizen commented that EPA
must show to the public in another notice that Texas' implementation of
the revised SIP is consistent with the requirements of the Act.
Otherwise, EPA should withdraw its approvals of Texas' prevention of
deterioration (PSD) and nonattainment (NNSR) programs and impose
Federal regulations which implement these programs.
Response 13: This action is a recodification of existing provisions
of the SIP (except for our approval of Section 116.116(c)). We approved
the existing provisions based upon our determination that they meet the
applicable provisions of section 110(a)(3)(A) of the Act and the
regulations under 40 CFR part 51, subpart I--Review of New Sources and
Modifications. The recodified provisions continue to meet the
requirements of 40 CFR subpart I and are discussed in response to
Comment 12. Public Citizen has provided no information which
demonstrates any failure by Texas to implement these requirements in a
manner consistent with the Act. Accordingly, we are proceeding with
approval of these provisions.
Concerning the comment that EPA should withdraw its approvals of
Texas' PSD and NNSR programs, the commenter provided no information
under which we could take such action. We approved these provisions in
separate actions as discussed in section III.C of this action. These
prior actions approving the PSD and NNSR programs contain the
documentation which demonstrates that these regulations meet the
requirements of the Act. Because the provisions relating to NNSR and
PSD are already approved as part of the SIP, they are not part of this
action, and references to them are for explanatory purposes only. Under
the circumstances, the provisions for NNSR and PSD are not subject to
public comment or judicial review as part of this action.
Comment 14: On October 24, 2001, Public Citizen commented that it
does not agree that the proposed changes are ``nonsubstantive'' as
indicated in the proposal; and is concerned that certain changes are
substantive. As an example, Public Citizen argued that the September
24, 2001, action did not mention that Texas repealed operating permit
requirements formerly codified in Section 116.3. These SIP approved
operating permits requirements apply to minor sources and modifications
as well as to major sources, and thus have not been wholly replaced by
the State's Title V operating permits program. Public Citizen believes
that the removal of the State Operating Permitting provisions is a
significant change. Further, Public Citizen commented that EPA failed
to provide proper notice of the repeal of this permitting program from
the SIP.
On April 12, 2002, Public Citizen further commented that the
removal of the operating permit provisions from the SIP is a
significant substantive change. The operating permit provisions ensured
that facilities actually constructed their plants in accordance with
their permits and the representations in their applications and that
the plants, as constructed, could meet emissions limits and rates
specified in permits and applications. The Chapter 122 Title V
operating permit program does not cover all sources covered by former
Sections 116.1 and 116.3 and does not serve the same purpose as the
Chapter 116 operating permit program. Public Citizen does not believe
that EPA has demonstrated that the removal of operating permit
requirements from the SIP will not interfere with attainment.
Response 14: Our proposal includes the repeal of the former
provisions for Texas' state operating permits under Section 116.3(b).
Section 116.3(b) provided that the TCEQ would grant an operating permit
when specific demonstrations are made. In the 1993 submittal, Texas
repealed Section 116.3(b) and replaced it with Section 116.110(b)--
Operations Certification. The TCEQ later repealed Section 116.110(b) in
the 1998 submittal. Thus, we did not approve Section 116.110(b) as
submitted in 1993. Because the 1993 and 1998 submittals together
repealed Texas' former regulations for State Operating Permits and for
Operations Certification, these provisions are no longer part of Texas'
permitting program. Because the repeal of these provisions were
submitted as SIP revisions, we must act on them.
Texas' repeal of its state operating permits provisions is not a
significant change in the SIP. The provisions of Chapter 116 that we
proposed to approve continue to require sources to meet the conditions
that were formerly required under Section 116.3(b). This is shown by
comparing the former requirements of Section 116.3(b) to provisions of
Chapter 116 that we proposed to approve. Our evaluation follows.
Section 116.3(b)(1) required the facility to comply with the Rules
and Regulations of the TCEQ and the intent of the Texas Clean Air Act.
This is now required under Section 116.111(2)(A) which provides that
each preconstruction permit must ensure that the emissions ``comply
with all rules and regulations of the commission and with the intent of
the TCAA, including protection of the health and physical property of
the people.''

[[Page 58708]]

Section 116.3(b)(2) required the facility to be constructed and
operated in accordance with the requirements and conditions contained
in the permit to construct. This is now required under Section
116.115(c) which requires sources to comply with the special conditions
contained in the permit document.
Section 116.3(b)(2) required the facility to be constructed and
operated in accordance with the requirements and conditions contained
in the permit to construct. This is now required under Section
116.115(c) which requires sources to comply with the special conditions
contained in the permit document. Section 116.116(a) provides that
permits are issued under the condition that the source meet
representations with regard to construction plans and operation
procedures in the permit application; and meet any general and special
conditions attached to the permit. Section 116.116(b) further provides
that a permit holder shall not vary from any representation or permit
condition without obtaining a permit amendment, if the change would
cause: a change in the method of control, a change in the character of
the emissions, or an increase in emissions rate of any air contaminant.
Section 116.3(b)(3) required the facility to comply with applicable
new source performance standards promulgated by EPA under section 111
of the Act, as amended. This is now required under Section
116.111(2)(D) which provides that the preconstruction permit must
require compliance with applicable new source performance standard
promulgated under 40 CFR part 60.
Section 116.3(b)(4) required the facility to comply with applicable
emission standard for hazardous air pollutants promulgated by EPA under
section 112 of the Act, as amended. This is now required under Section
116.111(2)(E), which provides that the preconstruction permit must
require compliance with applicable National Emission Standards for
Hazardous Air Pollutants promulgated under 40 CFR part 61; and Section
116.111(2)(F), which provides that the preconstruction permit must
require compliance with applicable requirements of any National
Emission Standards for Hazardous Air Pollutants for Source Categories
under 40 CFR part 63.
Accordingly, permitted sources must continue to meet the
requirements which formerly existed in Section 116.3(b). The repeal of
Section 116.3(b) from the SIP is not a relaxation, as its requirements
now exist in other provisions of Chapter 116. Therefore, our approval
of Texas' repeal of Section 116.3(b) from the SIP is not a substantive
change to the SIP.
We also do not agree that we failed to provide proper notice of the
repeal of the State Operating Permit program from the SIP. This was
clearly provided for in the September 24, 2001, action. We clearly
stated that the proposed action was to replace the existing SIP with
the recodified regulations that Texas submitted in 1993 and 1998.
Specifically, we proposed to delete the existing Section 116.3, which
includes Section 116.3(b). See 66 FR 48804. The repeal of Section
116.3(b) was submitted as part of the 1993 submittal which included the
basis for its repeal. Consequently, the record of the repeal of Section
116.3(b) was part of the 1993 submittal.
Public Citizen provided no information to support its claim that
other changes to the recodified provisions are substantive.
Accordingly, we find that the recodified provisions of Chapter 116 are
nonsubstantive as documented in the TSD for the proposed action.
Comment 15: On April 12, 2002, Public Citizen commented on Section
116.10(5), which is the definition of ``federally enforceable.'' The
list of Federally enforceable limitations and conditions should include
all conditions of Texas' Title V operating permits issued pursuant to
Chapter 122.
Response 15: Texas' definition of ``federally enforceable'' in
Section 116.10(5) includes each of the items specified in the Federal
definitions of that term in 40 CFR 51.165(a)(1)(xiv) and
51.166(b)(17).\22\ The Federal definitions do not require a State to
include conditions of permits issued under Title V of the Act as
Federally enforceable requirements. Because Texas' definition of
``federally enforceable'' meets requirements of the Federal
definitions, it satisfies the requirements of 40 CFR part 51, subpart
I. Accordingly, Texas' definition of ``federally enforceable'' is
approvable.
---------------------------------------------------------------------------

\22\ ``Federally enforceable'' is defined in both 40 CFR
51.165(a)(1)(xiv) and 51.166(b)(17) to mean:
* * * all limitations and conditions which are enforceable by
the Administrator, including those requirements developed pursuant
to 40 CFR parts 60 and 61, requirements within any applicable State
implementation plan, any permit requirements established pursuant to
40 CFR 52.21 or under regulations approved pursuant to 40 CFR part
51, subpart I, including operating permits issued under an EPA-
approved program that is incorporated into the State implementation
plan and expressly requires adherence to any permit issued under
such program.
---------------------------------------------------------------------------

V. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175
(59 FR 22951, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority

[[Page 58709]]

to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule 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 November 18, 2002. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

Dated: September 10, 2002.
Gregg A. Cooke,
Regional Administrator, Region 6.

Part 52, chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

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

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

Subpart SS--Texas

2. In Sec. 52.2270 the table in paragraph (c) is amended by
deleting all existing entries under Chapter 116 and replacing them with
new entries as shown below:

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 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
Section 116.6................ Exemptions........... 03/27/75 08/13/82, 47 FR
35194.
------------------------------
Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
Section 116.10............... General Definitions.. 06/17/98 09/18/02 and FR cite The SIP does not
include Sections
116.10(1), (2),
(3), (4), (6), (8),
(9), (10), and
(14).
Section 116.11............... Compliance History 06/17/98 09/18/02 and FR
Definitions. cite.
Section 116.12............... Nonattainment Review 02/24/99 07/17/00, 65 FR
Definitions. 43994.
------------------------------
Subchapter B--New Source Review Permits
Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
Section 116.110.............. Applicability........ 06/17/98 09/18/02 and FR cite The SIP does not
include Sections
116.110(a)(2),
(a)(3), and (c).
Section 116.111.............. General Application.. 06/17/98 09/18/02 and FR cite The SIP does not
include Section
116.111(2)(K).
Section 116.112.............. Distance Limitations. 06/17/98 09/18/02 and FR
cite.
Section 116.114.............. Application Review 06/17/98 09/18/02 and FR
Schedule. cite.
Section 116.115.............. Special Provisions... 06/17/98 and 09/18/02............ The SIP does not
FR cite include Sections
116.115(b),
(c)(2)(A)(i), and
(c)(2)(B)(ii)(I).
Section 116.116.............. Amendments and 06/17/98 09/18/02 and FR cite The SIP does not
Alterations. include Sections
116.116(b)(3), (e),
and (f).
------------------------------

[[Page 58710]]

Division 2--Compliance History
----------------------------------------------------------------------------------------------------------------
Section 116.120.............. Applicability........ 06/17/98 09/18/02 and FR
cite.
Section 116.121.............. Exemptions........... 06/17/98 09/18/02 and FR
cite.
Section 116.122.............. Contents of 06/17/98 09/18/02 and FR
Compliance History. cite.
Section 116.123.............. Effective Dates...... 06/17/98 09/18/02 and FR
cite.
Section 116.124.............. Public Notice of 06/17/98 09/18/02 and
Compliance History. FRccite.
Section 116.125.............. Preservation of 06/17/98 09/18/02 and FR
Existing Rights and cite.
Procedures.
Section 116.126.............. Voidance of Permit 06/17/98 09/18/02 and FR
Applications. cite.
------------------------------
Division 3--Public Notice
----------------------------------------------------------------------------------------------------------------
Section 116.130.............. Applicability........ 06/17/98 09/18/02 and FR cite The SIP does not
include Section
116.130(c).
Section 116.131.............. Public Notification 06/17/98 09/18/02 and FR
Requirements. cite.
Section 116.132.............. Public Notice Format. 06/17/98 09/18/02 and FR cite The SIP does not
include Sections
116.132(c) and (d).
Section 116.133.............. Sign Posting 06/17/98 09/18/02 and FR cite The SIP does not
Requirements. include Sections
116.133(f) and (g).
Section 116.134.............. Notification of 06/17/98 09/18/02 and FR
Affected Agencies. cite.
Section 116.136.............. Public Comment 08/16/93 09/18/02 and FR
Procedures. cite.
Section 116.137.............. Notification of Final 06/17/98 09/18/02 and FR
Action by the cite.
Commission.
------------------------------
Division 4--Permit Fees
----------------------------------------------------------------------------------------------------------------
Section 116.140.............. Applicability........ 06/17/98 09/18/02 and FR cite
Section 116.141.............. Determination of Fees 06/17/98 09/18/02 and FR
cite.
Section 116.143.............. Payment of Fees...... 06/17/98 09/18/02 and FR
cite.
------------------------------
Division 5--Nonattainment Review
----------------------------------------------------------------------------------------------------------------
Section 116.150.............. New Major Source or 02/24/99 07/17/00, 65 FR
Major Modification 43986.
in Ozone
Nonattainment Area.
Section 116.151.............. New Major Source or 03/18/98 07/17/00, 65 FR
Major Modification 43986.
in Nonattainment
Area Other than
Ozone.
------------------------------
Division 6--Prevention of Significant Deterioration Review
----------------------------------------------------------------------------------------------------------------
Section 116.160.............. Prevention of 06/17/98 09/18/02 and FR
Significant cite.
Deterioration Review
Requirements.
Section 116.161.............. Source Located in an 06/17/98 09/18/02 and FR
Attainment Area with cite.
Greater than De
Minimis Impact.
Section 116.162.............. Evaluation of Air 08/16/93 08/19/97, 62 FR
Quality Impacts. 44083.
Section 116.163.............. Prevention of 08/16/93 08/19/97, 62 FR
Significant 44083.
Deterioration
Permits Fees.
------------------------------
Division 7--Emission Reductions: Offsets
----------------------------------------------------------------------------------------------------------------
Section 116.170.............. Applicability of 06/17/98 09/18/02 and FR cite The SIP does not
Reduction Credits. include Section
116.170(2).

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

[[Page 58711]]

[FR Doc. 02-23584 Filed 9-17-02; 8:45 am]
BILLING CODE 6560-50-P

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