Approval and Promulgation of Air Quality Implementation Plans; Texas; Control of Air Pollution by Permits for New Construction or Modification

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

[Federal Register: March 10, 2006 (Volume 71, Number 47)]
[Rules and Regulations]
[Page 12285-12289]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10mr06-8]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2004-TX-0006; FRL-8043-9]

Approval and Promulgation of Air Quality Implementation Plans; Texas;
Control of Air Pollution by Permits for New Construction or Modification

AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the
Texas State Implementation Plan (SIP). This action approves provisions
for alternate language public notice for certain preconstruction
permits or permit renewals and provisions for preconstruction permit
renewals. It approves SIP revisions that Texas submitted to EPA on
August 31, 1993; April 29, 1994; August 17, 1994; and July 22, 1998.
The provisions that EPA is approving supplement the current
requirements for new construction and modifications and are more
stringent than the Federal Clean Air Act (CAA or the Act) and EPA
regulations. We are approving the revisions under sections 110 and 116
of the Act.

DATES: This direct final rule is effective on May 9, 2006 without
further notice, unless EPA receives significant adverse comment by
April 10, 2006. 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-2004-TX-0006, by one of the following methods:
? Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
? 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.
? E-mail: Mr. David Neleigh at neleigh.david@epa.gov. Please
also cc the person listed in the FOR FURTHER INFORMATION CONTACT
section below.
? Fax: Mr. David Neleigh, Chief, Air Permits Section (6PD-
R), at fax number 214-665-7263.
? Mail: Mr. David Neleigh, Chief, Air Permits Section (6PD-
R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
? Hand or Courier Delivery: Mr. David Neleigh, 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 8:00 a.m. and 4:00 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-
2004-TX-0006. EPA's policy is that all comments received, including any
personal information provided, will be included in the public file
without change and may be made available online at http://docket.epa.gov/
rmepub/ 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
that you consider to be CBI or otherwise protected through
http://www.regulations.gov or e-mail. The www.regulations.gov
website is an ``anonymous access'' system, which means EPA will not know
your identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address
will be automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index,
some information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically in

[[Page 12286]]

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. To make an
appointment, contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below. If possible, please make the appointment at
least two working days in advance of your visit. There will be a 15
cent per page fee for making photocopies of documents. On the day of
the visit, please check in at the EPA Region 6 reception area at 1445
Ross Avenue, Suite 700, Dallas, Texas.
The State submittal is also available by appointment for public
inspection at the State Air Agency listed below during official
business hours:
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733; telephone (214) 665-7212; fax
number 214-665-7263; e-mail address spruiell.stanley@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' or
``our'' means the EPA. Also, in 1993 the Texas Air Control Board (TACB)
merged with the Texas Water Commission to become the Texas Natural
Resource Conservation Commission (TNRCC), which in 2002 underwent a
name change and is now the Texas Commission on Environmental Quality
(TCEQ). The revisions to Chapter 116 that we are acting upon herein
were adopted by Texas prior to the agency's most recent name change.
All rules and regulations, orders, permits, and other final actions
taken by the TCEQ's predecessor agencies remain in full effect unless
and until revised by the TCEQ. References to the TACB or to the TNRCC
in the provisions we are approving in this action should be read to
mean the TCEQ.

Outline

I. What Is Being Addressed in This Document?
II. Have the Requirements for Approval of a SIP Revision Been Met?
III. What Final Action Is EPA Taking?
IV. Statutory and Executive Order Review

I. What Is Being Addressed in This Document?

We are taking direct final action to approve revisions to the Texas
SIP. These revisions are changes made by the State to Title 30 Texas
Administrative Code (30 TAC) Chapter 116--Control of Air Pollution by
Permits for New Construction and Modification. Texas submitted these
SIP revisions to EPA on August 31, 1993; April 29, 1994; August 17,
1994; and July 22, 1998. Existing Texas SIP provisions that have
already been approved by EPA are listed in 40 CFR 52.2270 (40 CFR part
52, subpart SS).
The revisions pertaining to alternate language public notice for
certain preconstruction permits or permit renewals are in 30 TAC
section 116.132--Public Notice Format; and section 116.133--Sign
Posting Requirements. Texas submitted these revisions, which add new
subsections (c) and (d) to section 116.132 and new subsections (f) and
(g) to section 116.133, on August 17, 1994, and nonsubstantive revisions
to these subsections on July 22, 1998. These four new subsections that we
are approving in today's action address the requirements for alternate
language public notice publication and sign posting.
The revisions pertaining to preconstruction permit renewals are
found in 30 TAC section 116.310--Notification of Permit Holder; section
116.311--Permit Renewal Application; section 116.312--Public
Notification and Comment Procedures; section 116.313--Renewal
Application Fees; and section 116.314--Review Schedule. Texas submitted
these new sections to EPA on August 31, 1993, and submitted revisions
to section 116.311 on April 29, 1994. These submittals, which we are
approving in this action, address the requirements for renewal of
preconstruction permits.
We have prepared a technical support document (TSD) that contains
our evaluation of these SIP revisions and our basis for why they are
approvable. The TSD is in the docket for this action.

II. Have the Requirements for Approval of a SIP Revision Been Met?

A. Alternate Language Public Notice

The current SIP provides in section 116.132(a) and (b) that the
applicant for a preconstruction permit or permit renewal must publish
public notices in a publication of general circulation in the
municipality in which the facility is located, or proposed to be
located, or in the municipality nearest to the location or proposed
location of the facility. The current SIP also provides in section
116.133(a) through (e) that the applicant must place at the site of the
proposed facility a sign or signs declaring the filing of an
application for a permit and stating the contact information of the
appropriate TCEQ regional office that may be contacted for further
information. We approved sections 116.132(a) and (b) and 116.133(a)
through (e) on September 18, 2002, (67 FR 58697) as revised rules
meeting both the public notice provisions in the Act and in 40 CFR
51.161--Public availability of information.
In this action, we are approving new subsections (c) and (d) in
section 116.132 and new subsections (f) and (g) in section 116.133. New
subsection (c) in section 116.132 (Public Notice Format) prescribes
publication of alternate language public notice and generally applies
whenever either the elementary school or the middle school nearest to
the facility or proposed facility provides a bilingual education
program. When publication of alternate language notice is required, the
applicant must publish an additional notice in each alternate language
in which the bilingual education program is taught. Each such notice
must be published in a newspaper or other publication that is published
in the alternative language in which the notice is required and that is
generally circulated in the municipality or county in which the
facility is located or proposed to be located. Pursuant to paragraph
(c)(4), the alternate language public notice publication requirements
are waived if a publication in the alternate language does not exist or
if the publishers of the alternate language publication refuse to
publish the notice. Under new subsection (d) in section 116.132,
publication of the alternate language notice is not required if the
elementary or middle schools offer English as a second language and are
not otherwise governed by the bilingual education program requirement
of 19 TAC 89.1205(a).
New subsection (f) in section 116.133 (Sign Posting Requirements)
prescribes alternate language sign posting and generally applies
whenever either the elementary school or the middle school nearest to
the facility or proposed facility provides a bilingual education
program. When alternate language sign posting is required, the
applicant must post an additional sign in each alternative language in
which the bilingual education program is taught and such sign shall be
posted adjacent to each English language sign required by section
116.133. The alternate language sign posting requirements

[[Page 12287]]

must be fulfilled without regard to the alternate language public
notice publication requirements of section 116.132(c). Pursuant to new
subsection (g) in section 116.133, alternate language sign posting is
not required if the elementary or middle schools offer English as a
second language and are not otherwise governed by the bilingual
education program requirement of 19 TAC 89.1205(a).
Before EPA may approve SIP revisions, section 110(l) of the Act
requires a demonstration of noninterference with any applicable
requirement concerning nonattainment, reasonable further progress
toward attainment of National Ambient Air Quality Standards (NAAQS), or
any other applicable requirement of the Act. The provisions to provide
public notice and sign posting in alternate languages that EPA is
approving in today's action revise the preconstruction public
notification requirements in the Texas SIP; these new provisions do not
change the currently approved public notice and sign posting
requirements but rather supplement these existing requirements. These
revisions to the Texas SIP--specifically, the addition of sections
116.132(c) and (d) and 116.133(f) and (g)--are administrative and
procedural in nature and will not affect emissions. Furthermore, these
revisions are more stringent than the public participation requirements
of the Act and of EPA regulations and therefore improve the existing
SIP. Because these alternate language public notice provisions are more
stringent than either the Clean Air Act or EPA regulations require for
public participation, these revisions to the Texas SIP will not
interfere with Texas' compliance with the requirements of the Act
relating to public participation, nonattainment, reasonable further
progress, or any other applicable requirements under the Act or EPA
regulations.
We are approving the alternate language public notice provisions in
sections 116.132(c) and (d) and 116.133(f) and (g) as being more
stringent than the requirements of the Act and of EPA's regulatory
requirements for preconstruction public notice; thus sections 116.132
and 116.133, as currently adopted by Texas and submitted to EPA for
approval into the Texas SIP, are approved in their entirety by EPA as
meeting the requirements of the Act and of EPA regulations. These
revisions, relating to alternate language public notice for certain
preconstruction permits or permit renewals, improve the existing SIP.

B. Permit Renewals

New sections 116.310 through 116.314 provide for the periodic
renewal of preconstruction permits. Under section 116.311(c) (relating
to Permit Renewal Application), permits must be renewed according to
the following renewal schedule: (1) Any permit issued before December
1, 1991, is subject for review and renewal 15 years after the date of
issuance; (2) any permit issued on or after December 1, 1991, is
subject for review and renewal ten years after the date of issuance; or
(3) for cause, a permit issued after December 1, 1991, may contain a
provision requiring renewal at a period between five and ten years. See
section 116.311(c)(1) through (c)(3).
Under section 116.310--Notification of Permit Holder, the TCEQ will
provide written notice to the preconstruction permit holder that the
permit is scheduled for renewal no less than 180 days prior to
expiration of the permit.
In order to be granted a preconstruction permit renewal, section
116.311(a) (relating to Permit Renewal Application) requires the permit
holder to submit information demonstrating that: (1) The emissions from
the facility comply with all applicable specifications and requirements
of the TCEQ and the Texas Clean Air Act; (2) the facility is being
operated in accordance with all requirements and conditions of the
existing permit; (3) the facility has appropriate means to measure the
emissions of significant air contaminants; (4) the facility uses
control technology determined by the Executive Director to be
economically reasonable and technically practicable considering the age
of the facility and the impact of its emissions on the surrounding
area; (5) the facility meets the requirements of any applicable new
source performance standard under 40 CFR part 60; and (6) the facility
meets the requirements of any applicable emission standard for
hazardous air pollutants under 40 CFR part 61. Section 116.311(b)
provides that the TCEQ shall review the compliance history of the
facility in consideration of granting a renewal. In order for the
preconstruction permit to be renewed, the application must include
information that demonstrates the facility is or has been operating in
substantial compliance with the provisions of the Texas Clean Air Act
and with the terms of the existing permit. The renewal will not be
granted if the facility has a compliance history that demonstrates
failure to maintain substantial compliance with the Texas Clean Air Act
or with the terms of the existing permit or if violations in the
compliance history constitute a recurring pattern of egregious conduct
that demonstrates a consistent disregard for the regulatory process.
Section 116.312 (Public Notification and Comment Procedures)
requires that any application for preconstruction permit renewal shall
be subject to the public notification and comment procedure
requirements in Chapter 116, subchapter B, sections 116.132--Public
Notice Format, 116.133--Sign Posting Requirements, and 116.136--Public
Comment Procedures. Section 116.313 (Renewal Application Fees) provides
that a renewal application is subject to a fee based on total allowable
emissions. The minimum fee is $300 and the maximum fee is $10,000.
Section 116.314 (Review Schedule) provides the review schedule for
a renewal application. The TCEQ shall renew a permit and notify the
permit holder in writing if it meets the requirements for renewal. If
the TCEQ finds that the permit cannot be renewed, the TCEQ must provide
a report that describes the basis for denial to the permit holder
within 180 days of receipt of a completed renewal application. If
denial is based on failure to meet the requirements of section
116.311(a), the report shall establish a schedule for compliance with
the renewal requirements; the permit shall be renewed if the renewal
requirements are met according to the schedule. If denial is based upon
failure to maintain substantial compliance with the Texas Clean Air Act
or with the terms of the existing permit, the denial shall be final.
Before EPA may approve SIP revisions, section 110(l) of the Act
requires a demonstration of noninterference with any applicable
requirement concerning nonattainment, reasonable further progress
toward attainment of NAAQS, or any other applicable requirement of the
Act. The provisions for preconstruction permit renewals supplement the
existing new source review provisions by requiring that new and
modified facilities continue to meet the terms and conditions both of
their permits and of applicable regulatory requirements and that these
sources do not adversely impact air quality in the surrounding area.
These revisions to the Texas SIP--specifically, the addition of
sections 116.310 through 116.314--are administrative and procedural in
nature and will not affect emissions. Furthermore, although
preconstruction permits must remain in effect as long as the source
operates and until voided under the approved implementation plan
procedures, periodic renewal of

[[Page 12288]]

preconstruction permits is neither required nor prohibited under the
Act or Federal regulations; therefore, these revisions to the Texas SIP
are more stringent than the preconstruction permitting requirements of
the Act and of EPA regulations and improve the existing SIP. Because
the preconstruction permit renewal provisions in sections 116.310
through 116.314 are more stringent than either the Clean Air Act or EPA
regulations require for preconstruction permitting, these revisions to
the Texas SIP will not interfere with Texas' compliance with the
requirements of the Act relating to preconstruction permitting,
nonattainment, reasonable further progress, or any other applicable
requirements under the Act or EPA regulations.
We are approving the provisions for preconstruction permit renewals
in sections 116.310 through 116.314 as being more stringent than the
requirements of the Act and of EPA's regulatory requirements for
preconstruction permitting. These revisions, relating to renewal of
preconstruction permits, improve the existing SIP.

III. What Final Action Is EPA Taking?

EPA is approving revisions to the Texas SIP that the State
submitted to EPA on August 31, 1993; April 29, 1994; August 17, 1994;
and July 22, 1998. These revisions include the addition of alternate
language public notice requirements for certain preconstruction permits
or permit renewals to sections 116.132 (Public Notice Format) and
116.133 (Sign Posting Requirements) in 30 TAC Chapter 116, subchapter
B, Division 3, and the addition of provisions for preconstruction
permit renewals in sections 116.310 through 116.314 in 30 TAC Chapter
116, Subchapter D.
EPA is publishing this rule without prior proposal because we view
this as a noncontroversial amendment and anticipate no significant
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
significant adverse comments are received. This rule will be effective
on May 9, 2006 without further notice unless we receive significant
adverse comment by April 10, 2006. If we receive significant adverse
comment, we will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect and 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 at this time.
Please note that if we receive significant 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.

IV. Statutory and Executive Order Review

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 (Pub. L. 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 and in the absence of a preexistent requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
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. section 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 9, 2006. 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

[[Page 12289]]

matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

Dated: February 28, 2006.
Richard E. Greene,
Regional Administrator, Region 6.

? 40 CFR Part 52 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

Sec. 52.2270 [Amended]

? 2. The table in Sec. 52.2270(c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended as follows:
? a. Under Chapter 116, Subchapter B, Division 3, by revising the entries
for sections 116.132 and 116.133.
? b. Under Chapter 116, Subchapter B, Division 7, immediately following
the entry for section 116.170, by adding a new centered heading
entitled ``Subchapter D--Permit Renewals'' followed by new entries for
sections 116.310, 116.311, 116.312, 116.313, and 116.314.
The revisions and additions 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 date Explanation
submittal
-------------------------------------------------------------------------------------------------------------------------------------------

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

* * * * * * *
Subchapter B--New Source Review Permits

* * * * * * *
Division 3--Public Notice

* * * * * * *
Section 116.132................ Public Notice Format... 06/17/98 03/10/06
[Insert FR page number where document begins].
Section 116.133................ Sign Posting 06/17/98 03/10/06
Requirements. [Insert FR page number where document begins].

* * * * * * *
Subchapter D--Permit Renewals
Section 116.310................ Notification of Permit 08/16/93 03/10/06
Holder. [Insert FR page number where document begins].
Section 116.311................ Permit Renewal 04/06/94 03/10/06
Application. [Insert FR page number where document begins].
Section 116.312................ Public Notification and 08/16/93 03/10/06
Comment Procedures. [Insert FR page number where document begins].
Section 116.313................ Renewal Application 08/16/93 03/10/06
Fees. [Insert FR page number where document begins].
Section 116.314................ Review Schedule........ 08/16/93 03/10/06
[Insert FR page number where document begins].

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

* * * * *

[FR Doc. 06-2317 Filed 3-9-06; 8:45 am]
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