ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

[EPA-R06-OAR-2006-0850; FRL- ] 

Approval and Promulgation of Implementation Plans; 

Texas; Revisions to Chapter 116 which relate to the Application Review Schedule

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking a direct final action to approve revisions to the applicable State 

Implementation Plan (SIP) for the State of Texas which relate to the Application Schedule 

regulations submitted to EPA on September 25, 2003 and January 24, 2008. The portions of the 

SIP revision approved today would revise and recodify existing SIP provisions addressing 

requirements related to the voiding of an application for a permit or permit amendment and 

implement the requirements of House Bill (HB) 3732, 80th Legislature (2007), and the Texas 

Health and Safety Code, section 382.0566, concerning specific deadlines for review and issuance 

of air permits for Advanced Clean Energy Projects (ACEP). EPA finds that these changes to the 

Texas SIP comply with the Federal Clean Air Act (the Act or CAA) and EPA regulations, are 

consistent with EPA policies, and will improve air quality. This action is being taken under 

section 110 and parts C and D of the Act.
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DATES: This direct final rule is effective on [Insert date 60 days from date of publication in 

the Federal Register] without further notice, unless EPA receives relevant adverse comment by 

[Insert date 30 days from date of publication in the Federal Register]. If EPA receives such 

comment, EPA will publish a timely withdrawal in the Federal Register informing the public 

that this rule will not take effect. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-OAR-2006-

0850 by one of the following methods: 

(1) Federal eRulemaking Portal: http://www.regulations.gov : Follow the on-line 

instructions for submitting comments. 

(2) E-mail: Mr. Jeff Robinson at robinson.jeffrey@epa.gov. Please also cc the person listed 

in the FOR FURTHER INFORMATION CONTACT paragraph below. 

(3) U. S. EPA Region 6 "Contact Us" web site: http://epa.gov/region6/r6coment.htm. Please 

click on "6PD" (Multimedia) and select "Air" before submitting comments. 

(4) Fax: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), at fax number 

214-665-6762. 

(5) Mail: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. 

(6) Hand or Courier Delivery: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), 

Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. 

Such deliveries are accepted only between the hours of 8:30 AM and 4:30 PM weekdays except 

for legal holidays. Special arrangements should be made for deliveries of boxed information. 
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Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-2006-0850. EPA's 

policy is that all comments received will be included in the public docket without change and 

may be made available online at http://www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be Confidential Business 

Information (CBI) or other information the disclosure of which is restricted by statute. Do not 

submit information through http://www.regulations.gov or e-mail, if you believe that it is CBI or 

otherwise protected from disclosure. The http://www.regulations.gov website is an “anonymous 

access” system, which means that EPA will not know your identity or contact information unless 

you provide it in the body of your comment. If you send an e-mail comment directly to EPA 

without going through http://www.regulations.gov, your e-mail address will be automatically 

captured and included as part of the comment that is placed in the public docket and made 

available on the Internet. If you submit an electronic comment, EPA recommends that you 

include your name and other contact information in the body of your comment along with any 

disk or CD-ROM submitted. If EPA cannot read your comment due to technical difficulties and 

cannot contact you for clarification, EPA may not be able to consider your comment. Electronic 

files should avoid the use of special characters and any form of encryption and should be free of 

any defects or viruses. For additional information about EPA’s public docket, visit the EPA 

Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket are listed in the http://www.regulations.gov index. 

Although listed in the index, some information is not publicly available, e.g., CBI or other 

information whose disclosure is restricted by statute. Certain other material, such as copyrighted 

material, will be publicly available only in hard copy. Publicly available docket materials are 

available either electronically in http://www.regulations.gov or in hard copy at the Air Permits 
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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 am and 4:30 pm weekdays except for 

legal holidays. Contact the person listed in the FOR FURTHER INFORMATION 

CONTACT paragraph below to make an appointment. If possible, please make the appointment 

at least two working days in advance of your visit. There will be a 15 cent per page fee for 

making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 

reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas. 

The State submittals, which are part of the EPA docket, are also available for public 

inspection at the State Air Agency during official business hours by appointment: Texas 

Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, 

Texas 78753. 

FOR FURTHER INFORMATION CONTACT: If you have questions concerning today’s 

direct final action, please contact Ms. Melanie Magee, Air Permits Section (6PD-R), 

Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 

75202-2733, telephone (214) 665-7161; fax number (214) 665-6762; e-mail address 

magee.melanie@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document wherever, any reference 

to “we,” “us,” or “our” is used, we mean EPA. 
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Table of Contents 

I. The State’s Submittal 

A. Which rules did the State submit? 

B. What Action is EPA Taking? 

II. EPA’s Evaluation 

A. What did Texas Submit on September 25, 2003? 

B. What is EPA’s Evaluation of the September 25, 2003 SIP Revision? 

C. What did Texas Submit on January 24, 2008? 

D. What is EPA’s Evaluation of the January 24, 2008 SIP Revision? 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. The State’s Submittal

A. Which rules did the State submit?

 On September 25, 2003 and January 24, 2008, the Texas Commission on Environmental 

Quality (TCEQ) submitted proposed revisions to the Texas State Implementation Plan (SIP) 

concerning the Application Review Schedule, 30 TAC Chapter 116, Subchapter B, Division 1, 

Section 116.114. The TCEQ adopted these revisions on August 20, 2003 and December 19, 

2007, to address requirements related to the voiding of a permit or permit amendment and 

Advanced Clean Energy Projects (ACEP), respectively. The September 25, 2003 SIP submittal 

affects sections 116.12, 116.114, 116.115, 116.120, 116.143, 116.150, 116.170, 116.172, 

116.313, 116.315, and 116.715. With this action, EPA is taking a direct final action to approve 

the section 116.114 revisions. Sections 116.115, 116.120 and 116.315 are currently under 
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review and EPA will act on these revisions separately. The remaining sections have been 

addressed by EPA in prior separate actions1,2. The January 24, 2008 SIP submittal affects 

section 116.114 and with this review, EPA is taking a direct final action to approve those 

changes. Tables 1 and 2 below summarize the changes that were submitted. A summary of 

EPA’s evaluation of each section and the basis for this direct final is discussed in section II of 

this preamble. The Technical Support Document (TSD) includes a detailed evaluation of the 

referenced SIP submittals. 

Table 1. Summary of each SIP submittal that is affected by this action. 

Title of SIP Submittal Date Submitted to 

EPA 

Date of State 

Adoption 

Regulations Affected Proposed Action 

Application Review 

Schedule 

9/25/03 8/20/03 Revision to 30 TAC 

116.114 

Approval 

Advanced Clean 

Energy Project 

Permitting (HB 3732) 

1/24/08 12/19/07 Revision to 30 TAC 

116.114 

Approval 

Table 2. Summary of each regulation that is affected by this action. 

Section Title Date 

Submitted 

Date 

Adopted by 

the State 

Proposed 

Action 

Comments 

Chapter 116 – Control of Air Pollution by Permits for New Construction of Modification 

Subchapter B – New Source Review Permits 

Division 1 – Permit Application 

30 TAC 9/25/03 8/20/03 Approval Revised paragraph (b)(2) 

116.114 

Application 

Review 

Schedule 

1/24/08 12/19/07 Approval Revised to address requirements related to 

Advanced Clean Energy Projects (ACEP). 

Redesignated existing paragraph (a)(3) to (a)(4) 

and added new paragraph (a)(3) 

B. What Action is EPA Taking?

We have evaluated the SIP submissions for consistency with the CAA, NSR regulations 

for major and minor sources in 40 CFR Part 51, and the approved Texas SIP. We have also 

 

1

 On March 20, 2009 (74 FR 11851) EPA approved 30 TAC 116.12, 116.143, 116.150, 116.170, 116.172, and 

116.313. 

2

 On September 23, 2009 (74 FR 48480) EPA proposed to disapprove 30 TAC 116.715. 
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reviewed the rules for enforceability and legal sufficiency. In this review, we have identified 

that on September 18, 2002, EPA approved revisions to Title 30 of the Texas Administrative 

Code (30 TAC), Chapter 116 – Control of Air Pollution by Permits for New Construction or 

Modification, Section 114 – Application Review Schedule into the Texas SIP. Since EPA’s 

approval, Texas has submitted three SIP revisions to section 116.114 on October 25, 1999, 

September 25, 2003 and January 24, 2008. The September 25, 2003 and January 24, 2008 rule 

revisions have been determined to be severable from the October 25, 1999 revisions. The 

October 25, 1999 revision to section 116.114 contains references to the rules adopted by the 

State for 30 TAC Chapter 39, Public Notice. A Limited Approval and Limited Disapproval 

(LALD) was proposed on November 26, 2008 (73 FR 72001) for the section 116.114 revisions 

submitted to EPA on October 25, 1999. Therefore, this action will not include the section 

116.114 revisions submitted on October 25, 1999, which will be addressed separately. 

A technical analysis of the September 25, 2003 and January 24, 2008 proposed rule 

revisions have found that these revisions are consistent with the CAA, 40 CFR Part 51 and EPA 

policies. Therefore, EPA is taking a direct final action to approve the revised section 116.114 

rules submitted on September 25, 2003 and January 24, 2008. 

We are publishing this rule without prior proposal because we view this as a 

noncontroversial amendment and anticipate no relevant adverse comments. However, in the 

proposed rules section of this Federal Register publication, we are publishing a separate 

document that will serve as the proposal to approve the SIP revision if relevant adverse 

comments are received. This rule will be effective on [FEDERAL REGISTER OFFICE: 

insert date 60 days from date of publication in the Federal Register] without further notice 

unless we receive relevant adverse comment by [FEDERAL REGISTER OFFICE: insert date 
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30 days from date of publication in the Federal Register]. If we receive relevant adverse 

comments, we will publish a timely withdrawal in the Federal Register informing the public 

that the rule will not take effect. We will address all public comments in a subsequent final rule 

based on the proposed rule. We will not institute a second comment period on this action. Any 

parties interested in commenting must do so now. Please note that if we receive adverse 

comment on an amendment, paragraph, or section of this rule and if that provision may be 

severed from the remainder of the rule, we may adopt as final those provisions of the rule that 

are not the subject of an adverse comment. 

II. EPA’s Evaluation 

A. What did Texas Submit on September 25, 2003? 

Texas submitted a revision to 30 TAC 116.114 requiring that an application for a permit or 

permit amendment be voided in the event deficient information supplied with the application is 

not corrected. If an applicant fails to make a good faith effort to provide the required 

information after two written notifications of the deficiency, the Executive Director shall void 

the application and notify the applicant. To further pursue the project following a voiding of the 

application, the applicant shall submit an entirely new application on a new form. The new 

application shall be subject to the state and federal rules and regulations in place at the time of 

submittal. If a new application is submitted within six months of the voidance of the original 

application, the application shall be exempt from the fee requirements under 30 TAC 116.140, 

Applicability. However, the applicant must go through a new technical review and republish the 

public notice. 
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The revised paragraph 116.114 (b)(2) adds language to state that the Executive Director shall 

notify a permit applicant of voidances and deficiencies in voided applications. The paragraph 

also states that the submitted application shall meet the requirements of 30 TAC 116.111, 

General Application. See section 116.114(b)(2). 

B. What is EPA’s Evaluation of the September 25, 2003 SIP Revision?

This SIP revision changing the provisions contained in section 116.114 provides for the 

voiding of a deficient application for a permit or permit amendment. Texas revised this section 

as described below: 

• Voiding of deficient application. Under the existing provisions in 30 TAC 116.114(b)(2), 

the applicant is notified of the voidance of the application. The revision contained in this SIP 

submittal specifies that the Executive Director will also notify the applicant of the remaining 

deficiencies in the voided application. Also included with this SIP revision is the requirement 

for meeting section 116.111, General Application. 

Prior to the proposed final action for the 30 TAC 116.111 revisions, EPA approved 30 TAC 

116.111, General Application, into the existing SIP on September 18, 2002 (67 FR 58697). The 

references contained in the 30 TAC 116.114 revisions were deemed to be consistent with the 

existing SIP approved provisions for 30 TAC 116.111. 

The CAA and federal regulations do not specify a procedure for the voidance of a permit or 

permit application. However, the Federal Regulations do provide in 40 CFR 51.163 that the SIP 

must include administrative procedures to be applied in making determinations specified in 40 

CFR 51.160. Therefore, a State should establish an administrative procedure for the voidance of 

permits or permit applications that do not meet the requirements of the Act and the applicable 
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regulations. By adopting the voidance rule revisions, TCEQ has improved the SIP provision for 

the voidance of permit applications that do not meet the requirements contained in the SIP, 

including the state approved provisions of section 116.111, General Application. 

C. What did Texas Submit on January 24, 2008? 

In this SIP submittal, TCEQ amended 30 TAC 116.114 in 30 TAC Chapter 116 to implement 

the requirements of House Bill 3732, 80th Legislature (2007), and Texas Health and Safety Code, 

section 382.0566, concerning specific deadlines for review and issuance of air quality permits for 

ACEPs. The amendment revises section 116.114 by adding a new paragraph (a)(3) and 

redesignating the existing paragraph (a)(3) to paragraph (a)(4). 

The new paragraph (a)(3) establishes a review schedule for processing permits for ACEP. 

For any ACEP, the Executive Director of the TCEQ must complete the technical review of the 

permit application no later than nine months after declaring the permit application to be 

administratively complete. See section 116.114(a)(3)(A). Not later than nine months after 

declaring the permit application to be technically complete, the TCEQ shall issue an order to 

either issue or deny the permit. The TCEQ may extend this deadline up three months if it 

determines that the number of complex pending applications for permits under Chapter 116 will 

prevent the TCEQ from meeting the nine-month deadline without creating an extraordinary 

burden on the resources of the TCEQ. See section 116.114(a)(3)(B). 

D. What is EPA’s Evaluation of the January 24, 2008 SIP Revision? 

This SIP revision revises section 116.114 to establish a timeline for processing ACEP 

permits. Texas revised this section as described below: 
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• Determination of administrative completeness. Under the existing provisions in section 

116.114(a)(1), the TCEQ must determine whether any permit application, including ACEP 

applications, are administratively complete within 90 days of receipt of the application. 

Paragraph (a)(1) continues to provide the procedures for notification for any permit application, 

whether it is administratively complete or whether it is deficient. Paragraph (a)(2) continues to 

provide the procedures for making a preliminary decision to approve or disapprove an 

application. These provisions were not changed in this SIP revision. 

• Determination of technical completeness. The new section 116.114(a)(3)(A) provides 

that the Executive Director of the TCEQ shall complete the technical review of the permit 

application for an ACEP not later than nine months after declaring the permit application to be 

administratively complete. 

• Issuance or denial of an ACEP permit. The new section 116.114(a)(3)(B) provides that 

the Executive Director of the TCEQ shall issue a final order either to issue or to deny a permit 

for an ACEP not later than nine months after declaring the permit application to be technically 

complete. This paragraph provides that this deadline may be extended up to three additional 

months whenever the Commission determines that the number of complex pending applications 

for permits under Chapter 116 will prevent the TCEQ from meeting the nine month deadline 

without creating an extraordinary burden on the resources of TCEQ. With regards to processing 

applications for new and modified sources, the Federal regulations provide in 40 CFR 51.163 

that the plan must include the administrative procedures, which will be followed in making the 

determination specified in paragraph (a) of section 51.160. Accordingly, a State may establish a 

timeline for processing a permit that the State determines is necessary to process a permit 

application and make a final permit decision that meets the requirements of the Act and the 
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applicable regulations. In adopting the timeline for processing ACEPs, Texas has set forth a 

schedule that will enable TCEQ to make declarations whether the ACEP application is 

administratively complete, technically complete, and to perform its evaluation of the permit 

application to determine whether it meets the requirements in the SIP, including the approved 

provisions of section 116.111, General Application, and to make its determination whether to 

issue or deny the permit. Thus this revised rule continues to ensure that new and modified 

sources will be authorized based upon the State’s finding that the construction or modification of 

new and modified ACEP sources will not: 1) violate applicable portions of the control strategy; 

or 2) interfere with attainment or maintenance of a national standard in the State in which the 

proposed source (or modification) is located or in a neighboring State; which satisfies the 

requirements of 40 CFR 51.160(a) and (b). These rules also satisfy the requirements under 

section 110(l) of the Act which provides that a plan revision must not interfere with any 

applicable requirement concerning attainment and reasonable further progress or any other 

requirement of the act. The application review schedule provisions under review in this action 

will not interfere with attainment or reasonable further progress or any other applicable 

requirement of the Act. 

III. Final Action 

EPA is taking direct final action to approve revisions of the SIP Texas submitted on 

September 25, 2003 and January 24, 2008. We have determined that the revised rules clarify and 

strengthen the existing SIP. 

 EPA is not taking action on the revisions to sections 116.12, 116.114, 116.115, 116.120, 

116.143, 116.150, 116.170, 116.172, 116.313, 116.315, and 116.715 included in the September 
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25, 2003 SIP submittal. Sections 116.115, 116.120 and 116.315 are currently under review and 

EPA will act on these revisions separately. The remaining sections have been addressed by EPA 

in prior separate actions. 

VI. Statutory and Executive Order Reviews 

 Under the Clean Air Act, the Administrator is required to approve a SIP submission that 

complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, 

provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely 

approves state law as meeting Federal requirements and does not impose additional requirements 

beyond those imposed by state law. For that reason, this action: 

• is not a "significant regulatory action” subject to review by the Office of Management 

and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); 

• does not impose an information collection burden under the provisions of the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.); 

• is certified as not having a significant economic impact on a substantial number of small 

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); 

• does not contain any unfunded mandate or significantly or uniquely affect small 

governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 

104-4); 

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 

43255, August 10, 1999); 
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• is not an economically significant regulatory action based on health or safety risks subject 

to Executive Order 13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, 

May 22, 2001); 

• is not subject to requirements of section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the Clean Air Act; and 

• does not provide EPA with the discretionary authority to address, as appropriate, 

disproportionate human health or environmental effects, using practicable and legally 

permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). 

 In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country 

located in the state, and EPA notes that it will not impose substantial direct costs on tribal 

governments or preempt tribal law. 

 The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small 

Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule 

may take effect, the agency promulgating the rule must submit a rule report, which includes a 

copy of the rule, to each House of the Congress and to the Comptroller General of the United 

States. EPA will submit a report containing this action and other required information to the 

U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. A major rule cannot take effect 

until 60 days after it is published in the Federal Register. This action is not a “major rule” as 

defined by 5 U.S.C. 804(2). 
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 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 [FEDERAL 

REGISTER OFFICE: insert date 60 days from date of publication of this document in the 

Federal Register]. Filing a petition for reconsideration by the Administrator of this final rule 

does not affect the finality of this action for the purposes of judicial review nor does it extend the 

time within which a petition for judicial review may be filed, and shall not postpone the 

effectiveness of such rule or action. This action may not be challenged later in proceedings to 

enforce its requirements. (See section 307(b)(2).)
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List of Subjects in 40 CFR Part 52 

Environmental protection, Air pollution control, Carbon monoxide, Incorporation by 

reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, 

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

Dated: February 24, 2010 

Al Armendariz, 

Regional Administrator, Region 6. 
17

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 

2. The table in section 52.2270(c) entitled “EPA Approved Regulations in the Texas SIP” is 

amended by revising the entry for Section 116.114 under Chapter 116 – Control of Air 

Pollution by Permits for New Construction or Modification, Subchapter B – New Source 

Review Permits, Division 1 – Permit Application, to read as follows: 
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§ 52.2270 Identification of plan.

 * * * * * 

(c) * * * 

EPA Approved Regulations in the Texas SIP

State citation Title/Subject State approval/ 

Submittal date 

EPA approval date Explanation 

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

* * * * * * *

Subchapter B – New Source Review Permits 

Division 1 – Permit Application 

* * * * * * * 

Section 116.114 Application 

Review 

Schedule 

12/19/07 [Insert date of 

FR publication] 

[Insert FR page 

number where 

document 

begins]

Subsections (a), 

(a)(1), (a)(2), (b), 

and (b)(1) in the 

SIP are as 

adopted 6/17/98 

and approved by 

EPA 9/18/02, 67 

FR 58697. 

Subsection (b)(2) 

and subsections 

(a)(3) and (a)(4) 

are as adopted 

8/20/03 and 

12/19/07, 

respectively, and 

approved by EPA 

on [Insert date 

of FR 

publication] 

[Insert FR page 

number where 

document 

begins]. 

* * * * * * *