ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-0AR-2008-0192; FRL- _

Approval and Promulgation of Implementation Plans;

Texas; Revisions to Chapter 116 which relate to the Permit Renewal Application and

Permit Renewal Submittal

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 Permit Renewal Application

and Permit Renewal Submittal regulations. These portions ofthe SIP revisions approved today

would address requirements related to the timeline for the submittal of an application for permit

renewal. EPA finds that these changes to the Texas SIP comply with the Federal Clean Air Act

(the Act or CAA) and EPA regulations, are consistent with EPA policies, and will improve air

quality. This action is being proposed under section 110 and parts C and 0 ofthe Act.

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
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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-R06-0AR-2008-

0192 by one of the following methods:

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

instructions for submitting comments.

(2) E-mail: Mr. JeffRobinson 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. JeffRobinson, 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.

Instructions: Direct your comments to Docket ID No. EPA·R06-0AR-2008-0192. EPA's

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

may be made available online at www.regulations.gov, including any personal information
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provided, unless the comment includes information claimed to be Confidential Business

Information (CBI) or other information whose disclosure is restricted by statute. Do not submit

information that you consider to be CBI or otherwise protected through www.regulations.gov or

e-mail. The 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

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 ofspecial

characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the 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 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 am and 4:30 pm weekdays except for legal holidays.

Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below
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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 ofthe visit, please check in at the EPA Region 6 reception area at 1445

Ross Avenue, Suite 700, Dallas, Texas.

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

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

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

Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Melanie Magee, Air Permits Section

(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas,

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

magee.melanie@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document wherever, any reference

to "we," "us," or "our" is used, we mean EPA.

Table of Contents

I. The State's Submittals

II. What Action is EPA Taking?

III. EPA's Evaluation

A. What did Texas Submit for the Permit Renewal Application section?

B. What is EPA's Evaluation ofthe Permit Renewal Application revisions?
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C. What did Texas Submit for the Permit Renewal Submittal?

D. What is EPA's Evaluation ofthe Permit Renewal Submittal revisions?

IV. Final Action

V. Statutory and Executive Order Reviews

I. The State's Submittals

On December 15, 1995, July 22, 1998, and September 4, 2002, the Texas Commission

on Environmental Quality (TCEQ) submitted proposed revisions to the Texas State

Implementation Plan (SIP) concerning the Permit Renewal Application, 30 TAC Chapter 116,

Subchapter D, Section 116.311 - Permit Renewal Application. The December 15, 1995 and

July 22, 1998 revisions were superseded and rendered moot by revisions submitted to EPA on

September 4, 2002 because they repealed the earlier versions ofthe same provisions addressed in

that submittal. The September 4, 2002 SIP revision recodified the existing provision ofsection

116.311(c) into a new section 116.315 - Permit Renewal Submittal. The SIP submittals of 30

TAC 116.311 dated July 22, 1998 and September 4, 2002 have other provisions that have not

been evaluated in any prior action and are severable from the provisions that we are approving in

this action because the revisions being addressed here are ministerial and non-controversial in

nature. Additional information related to these SIP submittals are contained in the Technical

Support Document (TSD):

Revisions to the Permit Renewal Submittal section were submitted by TCEQ to EPA on

September 25,2003 and May 30, 2008. The September 25, 2003 SIP submittal revisions state

that an application for permit renewal must be submitted at least six months, but no earlier than

18 months prior to the permit expiration date. Also included within the revision is a provision
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for the Executive Director to approve applications before or after this specified time period.

Following the passage ofthe Texas Senate Bill 1673(SB 1673), so" Legislature, 2007, TCEQ

submitted to EPA revisions to section 116.315 on May 30, 2008 to allow the Commission to

process a renewal application at the same time as an amendment for a preconstruction permit,

provided the amendment application is filed not more than three years before the date the permit

is scheduled to expire and is subject to public notice requirements. The revisions were adopted

by the state on May 7, 2008. With this action, we are approving these revisions and

recodifications ofthe Permit Renewal Section.

The table below summarizes the changes that were submitted and are affected by this action.

A summary ofEPA's evaluation of each section and the basis for this proposal is discussed in

section III ofthis preamble. The TSD includes a detailed evaluation ofthe referenced SIP

submittals.

• Because Texas Repealed and resubmitted each section under Subchapter D In Its 7/22/98 submittal, our analysis

includes 12115/95 and 7/22/98 SIP submittal together.

Section Title Date Date Comments

Submitted Adopted by

the State

30TAC Pennit 12115/95 1l/16/95 Renamed previously SIP approved Subsection (c) to

116.311 Renewal 7/22/98 6117/98 subsections (d) and (e).

Application 9/4/02 8/21/02 Removed pre-existing non-SIP approved subsections (d) and

(e) and recodified to a new 30 TAC 116.315 (a) and (b).

30TAC Pennit 9/4/02 8/21/02 Initial adoption.

116.315 Review 9/25/03 8/20/03 Revised previously recodified subsection (a); New

Submittal subsection (b); Redesignated former recodified subsection

(b) to subsection (c).

5/30/08 5/7/08 Revised subsection (a); New subsection (c); Redesignated

former subsection (c) to subsection (d), ..

II. What Action is EPA Taking?

We have evaluated the SIP submissions for consistencywith the CAA, NSRregulations

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

reviewedthe rules for enforceability and legal sufficiency. In this review, we have identified
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that on March 10,2006, EPA approved revisions to Title 30 ofthe Texas Administrative Code

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

Modification, Section 311 - Permit Renewal Application into the Texas SIP. Since EPA's

approval, Texas has submitted three SIP revisions to section 116.311(c) on December 15, 1995,

July 22, 1998 and September 4, 2002. The December 15, 1995 and July 22, 1998 rule revisions

to 116.311(c) are superseded by the September 4, 2002 SIP submittal. Included in the September

4, 2002 revision to section 116.311, is the recodification of existing severable provisions from

section 116.311(c) to a new section 116.315 - Permit Renewal Submittal.

On September 25,2003, TCEQ submitted to EPA changes to the new section 116.315. As a

result of the passage ofthe Texas Senate Bill 1673(SB 1673), so" Legislature, 2007, TCEQ

submitted additional revisions to section 116.315 on May 30, 2008. The revisions include

provisions allowing the Commission to process a renewal application at the same time as an

amendment for a preconstruction permit, provided the amendment application is filed not more

than three years before the date the permit is scheduled to expire and are subject to public notice

requirements.

A technical analysis ofthe submittals for the Permit Renewal Application and Permit

Renewal Submittal sections has found that these changes are consistent with the CAA, 40 CFR

Part 51 and EPA policies. Therefore, EPA is taking a direct final action to approve the revision

and recodification ofsection 116.311(c) to the new section 116.315 rules submitted on

December 15, 1995, July 22, 1998, September 4, 2002, September 25, 2003 and May 30, 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 ofthis Federal Register publication, we are publishing a separate document that will
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serve as the proposal to approve the SIP revision ifrelevant 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 30 days from date of

publication in the Federal Register). Ifwe 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 ofthis rule and ifthat provision may be severed from the remainder ofthe

rule, we may adopt as final those provisions ofthe rule that are not the subject of an adverse

comment.

III. EPA's Evaluation

A. What did Texas Submit for the Permit Renewal Application section?

The provisions for 30 TAC 116.311 - Permit Renewal Application were submitted to EPA

on August 31, 1993 and April 29, 1994. EPA approved the submitted revisions on March 10,

2006 (71 FR 12285) and became effective on May 9, 2006. Since EPA's last approval for this

section, TCEQ has submitted three SIP revisions to EPA for the Permit Renewal Application

section on December 15, 1995, July 22, 1998 and September 4, 2002. The SIP revisions

submitted to EPA on December 15, 1995 and July 22, 1998 are superseded by the SIP revision

submitted September 4, 2002. The September 4, 2002 SIP submittal also includes several

revisions that remain under review and will not be addressed in this action. However, with this
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action, we are approving the recodification and revision ofthe existing provisions ofsection

116.311(c) to a new section 116.315 - Permit Renewal Submittal.

B. What is EPA's Evaluation of the Permit Renewal Application revisions?

The SIP revisions for section 116.311 - Permit Renewal Application revise and recodify

the existing provisions. The revisions approved with this action are described below:

• Subsections (d) and (e): The provisions in subsections (d) and (e) are currently approved as

subsection (c). The 1995 and 1998 SIP revisions reorganized these provisions as subparagraphs

(d) and (e) and made non-substantive changes. In the September 4, 2002, SIP submittal; these

provisions were recodified into a new 30 TAC 116.315(a) and (b).

C. What did Texas Submit for the Permit Renewal Submittal?

Revisions to the Permit Renewal Submittal were submitted to EPA on September 25, 2003

and included several non-substantive changes. However, as a result ofthe passage ofthe Texas

Senate Bill 1673(SB 1673), so" Legislature, 2007 on May 30, 2008, TCEQ submitted to EPA

changes to the Permit Renewal Section to revise and recodify this section's provisions.

D. What is EPA's Evaluation of the Permit Renewal Submittal revisions?

Section 116.315 - Permit Renewal Submittal allows the Commission to process a renewal

application at the same time as an amendment for a preconstruction permit, provided the

amendment application is filed not more than three years before the date the permit is scheduled

to expire and is subject to public notice requirements. The revisions approved with this action

are described below:
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• Subsection (a): This subsection is currently approved as 30 TAC 116.311 (c).

Subsection (c) was recodified and reorganized as 30 TAC 116.311(d) and (e), submitted

December 15, 1995 and July 22, 1998, with revisions, which EPA has not yet approved. On

September 4,2002, Texas recodified 30 TAC 116.311(d) and (e) as 30 TAC 116.315(a) and (b)

with non-substantive changes. In the September 25, 2003 submittal, Texas changed the date for

submitting a renewal application from 90 days prior to the permit expiration date to no earlier

than 18 months prior to the expiration ofthe permit expiration date. In the May 30, 2008

submittal, Texas revised the first sentence ofsubsection (a) to provide that the provisions apply,

except as provided in subsection (b) and (c). EPA's technical review has found that this change

is an improvement ofthe existing requirements. Therefore, we are approving the revisions to

subsection (a).

• Subsection (b): In the September 4,2002, submittal, the last sentence ofsubsection (a)

was replaced with a new subsection (b) which provides that with approval ofthe Executive

Director, an application for renewal may be submitted after the time period in subsection (a).

This revised provision is broader than the current SIP provisions and is beyond the current CAA

requirements and EPA NSR requirements. Therefore, by approving this revision into the SIP,

the existing rule language will be clarified and enhanced.

• Subsection (c): This new subsection, submitted May 30, 2008, provides that a renewal

application with appropriate fee may be submitted at the same time as an amendment application

to modify an existing facility as long as it is submitted not more than three years before the

permit's expiration date and the amendment is subject to public notice requirements under Texas

Health Code, section 382.056, Notice ofIntent to Obtain Permit or Permit Review; Hearing. The

Texas public participation and air permit rules may be found in 30 TAC Chapter 39 and 30 TAC
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101, respectively, and are severable from the section 116.315 provisions. Because the revisions

to this section affect the timing of permit renewals and does not change the requirements for

public notice and permit fees, EPA is approving this change.

• Subsection (d): This was initially submitted as subsection (b) on September 4,2002.

This subsection was recodified as subsection (c) in the September 25,2003, submittal, then

recodified to subsection (d) in the May 8, 2008, submittal. Other than the two recodifications, no

changes were made. The recodification ofsubsection (d) is a non-substantial change; therefore,

EPA is approving this revision.

IV. Final Action

EPA is taking direct final action to approve severable portions ofrevisions to the SIP

Texas submitted on December 15, 1995, July 22, 1998, September 4,2002, September 25, 2003,

and May 30, 2008. We have determined that the revised rules clarify and enhance the existing

SIP.

Within the TSD, several sections ofthese SIP submittals are identified as being included

in this action. 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.

V. Statutory and Executive Order Reviews

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

complies with the provisions ofthe 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,
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provided that they meet the criteria ofthe 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 ofManagement

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

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

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

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

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);

• 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 ofsection 12(d) ofthe National Technology Transfer and

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

requirements would be inconsistent with the Clean Air Act; and
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• 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 ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United

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

u.S. Senate, the U.s. House ofRepresentatives, and the Comptroller General ofthe United

States prior to publication ofthe 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)(I) ofthe Clean Air Act, petitions for judicial review ofthis 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 ofthis document in the

Federal Register]. Filing a petition for reconsideration by the Administratorofthis final rule

does not affect the finality ofthis action for the purposes ofjudicial review nor does it extend the

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

:s/;).! aOlo

I

Dated: Al Armendariz,

Regional Administrator, Region 6.
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40 CFR part 52 is amended as follows:

PART 52 - [AMENDED]

I. 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 §52.2270(c) entitled "EPA Approved Regulations in the Texas SIP" is amended

under Chapter 116, Subchapter D, as follows:

a. By revising the entry for Section 116.311, Permit Renewal Application; and

b. Immediately following the entry for Section 116.314, Review Schedule, by

adding a new entry for Section 116.315, Permit Renewal Submittal.

The revision and addition read as follows:
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§ 52.2270 Identification of plan.

* * * * *

(c) ***

EPA Approved Regulations in the Texas SIP

State citation I

Title/Subject State approval! EPA approval date I Explanation

Submittal date

* * * * * * *

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

* * * * * * *

Subchapter D - Permit Renewals

* * * * * * *

Section 116.311 Permit Renewal 4/6/1994 3/10/2006, 71 FR The SIP does not

Application 12285. include

subsection (c).

The requirements

ofsubsection (c)

were added to

Section 116.315

and approved by

EPA on [Insert

date ofFR

publication]

[Insert FR page

number where

document

begins].

* * * * * * *

Section 116.315 Permit Renewal 517/2008 [Insert date of

Submittal FR publication]

[Insert FR page

number where

document

begins]

* * * * * * *