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 of Permits 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 of a submittal

from the State of Texas, 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 Major NSR SIP requirements for voiding of permits.

We are approving the portion ofthe revision that addresses the recodification ofthe

provision relating to the granting of one I8-month extension of a permit as meeting the Minor

and Major NSR SIP requirement for extensions of permits. 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
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extension if certain 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 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-R06-0AR-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. 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. JeffRobinson, Chief, Air Permits Section (6PD-R), at fax number

214-665-6762.
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(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.

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 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.
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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

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 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 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.
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SUPPLEMENTARY INFORMATION: Throughout this document wherever, any reference

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

Table of Contents

1. The State's Submittals

II. What Action is EPA Taking?

III. EPA's Evaluation

A. How does the current SIP address the voiding of permits?

B. What revisions did Texas submit relating to the voiding of permits?

C. How does the current SIP address the extension of permits?

D. What revisions did Texas submit relating to the extension of permits?

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 of permits 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 of permits 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
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and extensions of permits. The new section also adds criteria that must be met for the first

permit extension to be granted and adds the opportunity for a second extension if certain

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 of EPA's evaluation of each 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 of each 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 of Modification

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 of Air 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 ofthe
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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 of permit 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 of authority to the Executive Director to 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 of public health and physical property before this second permit extension may be

granted. This second permit extension would be available in the case of a construction delay

caused by litigation, not ofthe permit holder's initiation regarding the issuance ofthe permit.
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The Executive Director could also issue an extension ifthe permit holder has spent, or has

committed to spend, 10% ofthe estimated cost of construction 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 Minor NSR 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 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 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 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 of an adverse

comment.
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III. EPA's Evaluation

A. How does the current SIP address the voiding of permits?

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

of permits 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 of permits?

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 of permits 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 ApplicationI. The new 30

TAC 116.120(a) addresses the voiding of permits and contains language that already was SIP

approved in 30 TAC 116.115(b)(2)(A). Because this is merely a recodification of an existing

SIP requirement, EPA is approving the recodification of 30 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.
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C. How does the current SIP address the extension of permits?

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

granting of an 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 of permits?

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 of a 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. The language 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 a recodification of an .

existing SIP requirement, EPA is approving the removal of30 TAC 116.115(b)(2)(A) from the

Texas NSR SIP, approving the consequent renumbering 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 of a construction delay caused by

litigation, not ofthe permit holder's initiation, associated with the issuance of a permit. The
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Executive Director also can issue a second extension ifthe permit holder has spent, or has

committed to spend 10% ofthe estimated cost of construction to a maximum 0($5 million.

EPA interprets this revision to require that before a permit 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 determination regarding 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 of Permits, as part ofthe Texas NSR SIP. EPA is

approving the revisions that relate to Extensions of Permits 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 Minor NSR 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 Minor NSR and NNSR.
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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 "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 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);
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• 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

'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)(1) 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 Administrator ofthis final rule
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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

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, Airpollution control, Carbon monoxide, Incorporation by

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

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

Dated:

Acting Regional Administrator, Region 6.
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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 etseq.

Subpart SS - Texas

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

amended 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:

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 of Permits.

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 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 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

number where

document

begins]

* * * * * * *

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

Permits FR publication]

[Insert FR page

number where

document

beginsl

* * * * * * *