### ENVIRONMENTAL PROTECTIONAGENCY 40 CFR Part 52 [EPA-R06-0AR-2008-0089; FRL-

_ Approval and Promulgation ofImplementation Plans; Texas; Revisions to Chapter 116 which relate to the Voiding ofPermits and Extension of Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking a direct final action to approve severable portions ofa submittal from the State ofTexas, through the Texas Commission on Environmental Quality (TCEQ), on September 25, 2003, to revise the Texas Major and Minor New Source Review (NSR) State Implementation Plan (SIP). EPA is approving the State's repeal ofa paragraph ofthe SIP rule pertaining to Texas Major and Minor NSR SIP and to approve the consequent renumbering of the SIP rule's paragraphs. We also are approving the new replacement rule as meeting the Minor and MajorNSR SIPrequirements for voiding ofpermits. We are approving the portion ofthe revision that addresses the recodification ofthe provision relating to the granting ofone I8-month extension ofa permit as meeting the Minor and MajorNSR SIPrequirement for extensions ofpermits. The revision imposes requirements on permitees, requiring a review ofthe permit's underlying permit determinations before this SIP-approved extension can be granted. Finally, the revision provides for a second permit

### 2 extension ifcertain conditions are met, including a health effects review. EPA is approving the

new replacement rule for this second permit extension as meeting the Major and Minor NSR and NNSR SIP requirements. 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 D ofthe Act.

DATES: This direct final rule is effective on 

### [Insert date 60 

### days from date ofpublication in the Federal Register) without further notice, unless EPA receives relevant adverse comment by 

### [Insert date 30 

### days from date ofpublication in the Federal Register). IfEPA 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-R06-0AR-2008- 0192 by one ofthe 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. JeffRobinson, Chief, Air Permits Section (6PD-R), at fax number 214-665-6762.

### 3 (5) Mail: Mr. JeffRobinson, 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 of8:30 AM and 4:30 PM weekdays except for legal holidays. Special arrangements should be made for deliveries ofboxed 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 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 considerto 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 ofyour comment. Ifyou 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 commentthat is placed in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends that you include your name and other contact information in the body ofyour comment and with any disk or CD-ROM you submit. If EPA cannotread your comment due to technical difficulties and cannotcontact you for clarification, EPA may not be able to consideryour comment. Electronic files should avoid the use ofspecial characters, any form ofencryption, and be free ofany defects or viruses.4 

### 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 appointmentfor public inspection in the Region 6 FOIA Review Room between the hours of8:30 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. Ifpossible, please make the appointment at least two working days in advance ofyour visit. There will be a 15 cent per page fee for making photocopies of documents. On the day ofthe visit, please checkin at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas. The State submittals, which are part ofthe 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 ofAir Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHERINFORMATION 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.

### 5 SUPPLEMENTARY INFORMATION: Throughout this document wherever, 

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



### Table ofContents 

### 1. The State's Submittals II. What Action is EPA Taking? III. EPA's Evaluation A. How does the current SIP address the voiding ofpermits? B. What revisions did Texas submitrelating to the voiding ofpermits? C. How does the current SIP address the extension ofpermits? D. What revisions did Texas submitrelating to the extension ofpermits? IV. Final Action V. Statutory and Executive Order Reviews



### I. The State's Submittals On September 25,2003, Texas submitted a SIP revision that included, an amended section 116.115 that would delete the language in the SIP's section 116.115(b)(2)(A) relating to the voiding ofpermits and extensions oftime to begin construction, renumber the paragraphs because ofthe deletion of(A), and transfer the substance to a new section 116.120. The new section 116.120 addresses the voiding ofpermits and the first 18-month permit extension and contains language from the SIP-approved section 116.115 with revisions. It is EPA's position that the Texas Permit Voiding Program is severable from all the other elements in the September 2003 submittal, including the Texas Permit Extension Program because it addresses the voiding

### 6 and extensions ofpermits. The new section also adds criteriathat must be met for the first permit extension to be granted and adds the opportunity for a second extension ifcertain conditions are met. The table below summarizes the changes that are in the September 25, 2003 SIP submittal that EPA is addressing in today's action. A summary ofEPA's evaluation ofeach section and the basis for this proposal is discussed in section III ofthis preamble. The Technical Support Document (TSD) includes a detailed evaluation ofthe referenced SIP submittal. Summary ofeach regulation that is affected by this action. Section Title Date Date Changes Comments Submitted Adopted by Adopted by the State State Chapter 116 - Control ofAir Pollution by Permits for New Construction ofModification Subchapter B - New Source Review Permits Division 1 - Permit Application 30TAC General and 9/25/03 8/20/03 Revisions and Removed Section (b)(2)(A). 116.115 Special Recodification Renumbered Section (b)(2)(B)-(I) to Conditions of30TAC Section (b)(2)(A)-(H) as a consequence of 116.115 the removal. 30TAC Voiding of 9/25/03 8/20/03 New30TAC New Section. 116.120 Permits and 116.120 Subsection 116.120(a) is substantially the Extensions same as the SIP rule codified in ofPerrnits Subsection 116.115(b)(2)(A). Part of subsection (b) is substantially the same as the SIP rule codified in subsection 116.115(b)(2)(A). Subsections (b) and (c) add new authority; they provide for the granting of more than one 18-month extension to a permit. 

### II. What Action is EPA Taking? We are approving the Texas Permit Voiding Program, as submitted by TCEQ on September 25,2003, in Title 30 ofthe Texas Administrative Code (30 TAC) at 30 TAC Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification. This includes the following under Chapter 116: removal of30 TAC 116.115(b)(2)(A) from the Texas SIP; renumbering ofthe SIP's 30 TAC 116.115(b)(2)'s subparagraphs as a consequence ofthe7 removal ofsubparagraph (A); and approval into the Texas SIP ofthe new 30 TAC 116.120(a) and (b). The existing Texas SIP at 30 TAC 116.115(b)(2)(A) and the newly submitted rule at 30 TAC 116.120 (a) both require that persons issued a NSR permit under Chapter 116 begin construction ofthe facility within 18 months ofpermit issuance or the permit will be voided. Consequently, this action is merely a recodification ofthe SIP Permit Voiding requirements. It is EPA's position that the Texas Permit Voiding Program is severable from all the other elements in the September 2003 submittal, including the Texas Permit Extension Program. In addition, the current SIP provision at 30 TAC l16.115(b)(2)(A) authorizes the Executive Director to grant an**l8~month** extension to this period. This language was transferred to this new subsection and relates to the grant ofauthority to the Executive Directorto extend permits for l8-months. Thus, this action is a recodification ofthe SIP Permit Extension requirements. The new 30 TAC l16.120(b) and (c) add new criteria that must be met before the Executive Director may issue the first l8-month extension. The new criteria are that the permit will be reviewed for its underlying best available control technology (BACT), lowest achievable emission rate (LAER), offsets, and netting determinations before the first extension will be granted. The two new subsections also add new authority for the Executive Director to issue a second l8-month extension. EPA interprets section l16.120(b) to require that the permit holder will comply with all the rules and regulations ofthe commission, Texas Clean Air Act, including protection ofpublic health and physical property before this second permit extension may be granted. This secondpermit extension would be available in the case ofa construction delay caused by litigation, not ofthe permit holder's initiation regarding the issuance ofthe permit.8 The Executive Director could also issue an extension ifthe permit holder has spent, or has committed to spend, 10% ofthe estimated cost ofconstruction to a maximum of$5 million. As part ofthe Texas Permit Extension Program, EPA is approving 30 TAC 116.120(b) and (c), as meeting the Major and MinorNSR and NNSR SIP. 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 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 ofpublication 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 ifwe receive adverse comment on an amendment, paragraph, or section ofthis rule and if that provision may be severed from the remainder ofthe rule, we may adopt as final those provisions ofthe rule that are not the subject ofan adverse comment.9 

### III. EPA's Evaluation A. How does the current SIP address the voiding ofpermits? The current SIP includes 30 TAC 116.115 as adopted by the TCEQ on November 20, 2002, and approved by EPA on September 6,2006 (71 FR 52664). This section addresses the voiding ofpermits under 30 TAC subsection 116.115(b)(2)(A). This SIP rule provides that a permit or permit amendment under 30 TAC Chapter 116 is automatically void ifthe permit holder does

one ofthe following: (1) fails to begin construction within 18 months ofthe date ofissuance; (2) discontinues construction for more than 18 consecutive months prior to completion ofthe project; or (3) fails to complete the project within a reasonable time. 

### B. What revisions did Texas submit relating to the voiding ofpermits? On August 20,2003, TCEQ adopted revisions to 30 TAC Section 116.115, and submitted them to EPA for SIP approval on September 25,2003. This amendment recodifies the language relating to the voiding ofpermits and transfers this rule language from 30 TAC Subsection 116.115(b)(2)(A) to a new 30 TAC Subsection 116.120(a). The new 30 TAC Section 116.120(a) is located in 30 TAC Chapter 116, Subchapter B, Division 1, Permit Application I. The new 30 TAC 116.120(a) addresses the voiding ofpermits and contains language that already was SIP approved in 30 TAC 116.115(b)(2)(A). Because this is merely a recodification ofan existing SIP requirement, EPA is approving the recodification of30 TAC 116.115(b)(2)(A) in the Texas NSR SIP, as the new 30 TAC 116.120(a).

I A separate and unrelated 30 TAC Section 116.120 as adopted by TCEQ on June 17, 1998, Division 2: Compliance History, and approved by EPA on September 18,2002 (67 FR 58697) remains in the SIP. The State has not requested that EPA remove this SIP rule from the Texas NSR SIP. There is no legal impediment to having two separate unrelated SIP requirements, each with the same rule number. If this action is finalized as proposed, the CFR regulatory language will show there are two 30 TAC 116.120's in the Texas SIP; the State adoption date and EPA's approval date will inform the public which 30 TAC 116.120 relates to Permit Voiding and Permit Extensions.10 

### C. How does the current SIP address the extension ofpermits? The current SIP includes 30 TAC 116.115 as adopted by the TCEQ on November20, 2002, and approved by EPA on September 6,2006 (71 FR 52664). This section addresses the granting ofan 18-month extension ofthe date to begin construction under 30 TAC subsection 116.115(b)(2)(A). The Executive Director may grant a one-time 18-month extension ofthe date to begin construction ifthe permit holder fails to begin construction within 18 months ofthe date ofissuance ofthe permit. 

### D. What revisions did Texas submit relating to the extensions ofpermits? On August 20, 2003, TCEQ adopted revisions to 30 TAC Section 116.115, and submitted them to EPA for SIP approval on September 25, 2003. This amendment recodifies the language relating to the granting ofthe additional 18-month extension ofa permit and transfers this rule language from 30 TAC Subsection 116.115(b)(2)(A) to a new 30 TAC subsection 116.120(b), introductory paragraph, third sentence. Thelanguage relating to the Executive Director's authority to grant an 18-month extension ofthe permit was transferred to this new subsection, third sentence in the introductory paragraph. Because this is merely arecodification ofan . existing SIP requirement, EPA is approving the removal of30 TAC 116.115(b)(2)(A) from the Texas NSR SIP, approving the consequentrenumbering ofthe paragraphs in 30 TAC 116.l15(b)(2), and approving the new 30 TAC subsection 116.l20(b) as part ofthe Texas NSR SIP. The new section 116.120 subsections (b) and (c), would allow more than one 18-month extension, as is currently provided for in the Texas NSR SIP. First, the permit holder may be granted a second extension to begin construction in the case ofa construction delay caused by litigation, not ofthe permit holder's initiation, associated with the issuance ofa permit. The

### II Executive Director also can issue a second extension ifthe permit holderhas spent, or has committed to spend 10% ofthe estimated cost ofconstructionto a maximum 0($5 million. EPA interprets this revision to require that before apermit holder can obtain this second extension, however, the state must perform a new health effects analysis and the permittee must demonstrate that emissions from the facility will comply with all rules and regulations ofthe commission and the intent ofthe TCAA, including protection ofthe public's health and physical property. The State will also review again the present permit's BACT, LAER, netting or offsets

as applicable, determinations. EPA is also interpreting subsection 116.120(b) to subject a permit for which a second extension is requested to public notice and comment as a permit amendment ifthe health effects analysis or original determinationregarding BACT, LAER, netting or offsets as applicable, is changed.



### IV. Final Action EPA is taking direct final action to approve revision ofthe SIP Texas submitted on September 25,2003, that relate to Voiding ofPermits, as part ofthe Texas NSR SIP. EPA is approving the revisions that relate to Extensions ofPermits as part ofthe Texas NSR SIP for Major and Minor NSR and are merely the recodification ofthe existing SIP requirement. EPA also is approving some substantive portions ofthe revisions that add new criteria for the granting ofthe first permit extension as part ofthe Texas Major and MinorNSR and NNSR SIP. Finally,

we are approving the new substantive portions ofthe revisions that add the authority to grant a second extension as part ofthe Texas NSR SIP for Major and MinorNSR and NNSR.12 

### 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. 741O(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 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 "significantregulatory action" subject to review by the Office ofManagement and Budgetunder Executive Order 12866 (58 FR 51735, October4, 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 

### etseq.); • 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);13 • is not subject to requirements ofsection l2(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 • 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 'copyofthe 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 "majorrule" as defined by 5 U.S.c. 804(2). Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit by [FEDERAL REGISTER OFFICE: insert date 60 days from date ofpublication ofthis document in the Federal Register]. Filing a petition for reconsideration by the Administrator ofthis final rule

### 14 does not affect the finality ofthis action for the purposes of judicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness ofsuch rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)15 List ofSubjects in 40 CFR Part 52

Environmental protection, Airpollution control, Carbon monoxide, Incorporation 

### by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfuroxides, Volatile organic compounds.

Dated: Acting Regional Administrator, Region 6.16 40 CFRpart 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 

### etseq.
SubpartSS - Texas 2. The table in section 52.2270(c) entitled "EPA Approved Regulations in the Texas SIP" is amended under Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification, Subchapter B - New Source Review Permits, Division 1 - Permit Application, to read as follows: a. By revising the entry for Section 116.115, General and Special Conditions; and b. Immediately following the entry for Section 116.116, by adding a new entry for Section 120, Voiding ofPermits. The revision and addition read as follows:

### 17 

### § 52.2270 Identification ofplan.



## * * * * * (c) 

## *** EPA Approved Regulations in the Texas SIP

State citation Title/Subject State approval! EPA approval date 

### I Explanation Submittal date 

## * * * * * * * Chapter 116 - Control ofAir Pollution by Permits for New Construction or Modification 

## * * * * * * * Subchapter B - New Source Review Permits Division 1 - Permit 

### Application 

## * * * * * * * Section 116.115 General and 8/20/2003 [Insert date of Special FR publication] Conditions [Insert FR page numberwhere document begins] 

## * * * * * * * Section 116.120 Voiding of 8/20/2003 [Insert date of 

### Permits FR publication] [Insert FR page number where document beginsl 

## * * * * * * *