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[Federal Register Volume 75, Number 214 (Friday, November 5, 2010)]
[Proposed Rules]
[Pages 68291-68294]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28013]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2007-0209; FRL-9221-5]

Approval and Promulgation of State Implementation Plans; Texas; 
Revisions to Chapters 39, 55, and 116 Which Relate to Public 
Participation on Permits for New and Modified Sources; Withdrawal of 
Proposed Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Withdrawal of proposed rule.

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SUMMARY: EPA is withdrawing our proposed limited approval and limited 
disapproval of revisions to the Texas state implementation plan (SIP), 
which relate to public participation for air permits for new and 
modified sources, because the subject SIP revisions are no longer 
before us for review. On November 26, 2008 (73 FR 72003) EPA proposed 
limited approval and limited disapproval. In response to our proposed 
limited approval and limited disapproval, the Texas Commission on 
Environmental Quality (TCEQ or the Commission) adopted new regulations 
governing public participation for air permits and submitted these 
regulations to EPA as revisions to the SIP in a letter dated July 2, 
2010. Also at this time, TCEQ withdrew from consideration the 
previously submitted revisions to the Texas SIP concerning public 
participation for air permits that were the subject of our November 26, 
2008, proposed limited approval and limited disapproval. Consequently, 
the State's July 2, 2010 action also withdraws from EPA's review the 
public participation component of the May 21, 2009, Settlement 
Agreement (as modified on February 12, 2010) between EPA and the BCCA 
Appeal Group, Texas Association of Business, and Texas Oil and Gas 
Association (Settlement Agreement).

DATES: The proposed rule published November 26, 2008 (73 FR 72003) is 
withdrawn as of November 5, 2010.

[[Page 68292]]

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2007-TX-0209. All documents in the docket are listed on 
the http://www.regulations.gov web site. 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, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at the Air Permitting 
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. 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.

FOR FURTHER INFORMATION CONTACT: Adina Wiley, Air Permitting Section 
(6PD-R), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, 
telephone 214-665-2115, wiley.adina@epa.gov.

SUPPLEMENTARY INFORMATION: EPA is withdrawing our November 26, 2008 
proposed limited approval and limited disapproval of revisions to the 
Texas SIP regarding public participation for air permits of new and 
modified sources. Texas withdrew the component titled ``Public 
Participation Chapter 39, 55 (Rule Project No. 88030-039-AD and 99030-
039-AD) (submittal of 12/15/95, as modified 7/22/98, and 10/25/99)'' in 
the Settlement Agreement. As a result of the State's withdrawal, these 
pending submissions are no longer before EPA for review. As discussed 
further below, Texas' withdrawal of the component on July 2, 2010 left 
before EPA three minor subsections: 30 Texas Administrative Code (TAC) 
sections 39.411(a); 55.152(b); and 39.418(b)(3). Texas also submitted 
newly revised versions of the public participation provisions in 
Chapters 39 and 55 to EPA. The State's intent was to include the three 
minor subsections noted above that were not withdrawn as part of the 
July 2010 submission. Accordingly, consistent with that intent, EPA 
will evaluate those three subsections as a part of the newly adopted 
public participation regulations submitted by Texas on July 2, 2010, 
pursuant to section 110(k) of the Clean Air Act (CAA).
    Our proposed action on November 26, 2008 (73 FR 72003) encompassed 
revisions submitted by the TCEQ on December 15, 1995; July 22, 1998; 
and on October 25, 1999. These SIP packages included the following 
rules:
     The December 15, 1995, submittal includes Texas' submittal 
of TAC, Title 30, Chapter 116, Subchapter D, section 116.312--Public 
Notification and Comment Procedures.
     The July 22, 1998, submittal includes Texas' submittal of 
repeal and readoption (with nonsubstantive revisions) of 30 TAC section 
116.312--Public Notification and Comment Procedures.
     The October 25, 1999, submittal includes the following 
revisions related to this action.
    [cir] New rules affecting 30 TAC Chapter 39--Public Notice--are as 
follows: Section 39.201--Application for a Preconstruction Permit; 
section 39.401--Purpose; section 39.403--Applicability; section 
39.405--General Notice provisions; section 39.409--Deadline for Public 
Comment, Requests for Reconsideration, Contested Case Hearing, or 
Notice and Comment hearing; section 39.411--Text of Public Notice; 
section 39.413--Mailed Notice; section 39.418--Notice of Receipt of 
Application and Intent to Obtain Permit; section 39.419--Notice of 
Application and Preliminary Determination; section 39.420--Transmittal 
of the Executive Director's Response to Comments and Decision; section 
39.423--Notice of Contested Case Hearing; section 39.601--
Applicability; section 39.602--Mailed Notice; section 39.603--Newspaper 
Notice; section 39.604--Sign-Posting; section 39.605--Notice to 
Affected Agencies.
    [cir] New rules affecting 30 TAC Chapter 55--Requests for 
Reconsideration and Contested Case Hearing--are as follows: Section 
55.1--Applicability; section 55.21 Requests for Contested Case Hearing, 
Public Comment; section 55.101--Applicability; section 55.103--
Definitions; section 55.150--Applicability; section 55.152--Public 
Comment Period; section 55.154--Public Meetings; section 55.156--Public 
Comment Processing; section 55.200--Applicability; section 55.201--
Requests for Reconsideration and Contested Case Hearing; section 
55.203--Determination of Affected Person; section 55.205--Request by 
Group or Association; section 55.209--Processing Requests for 
Reconsideration or Contested Case Hearing; and section 55.211--
Commission Action or Requests for Reconsideration and Contested Case 
Hearing.
    [cir] Rule revisions affecting 30 TAC Chapter 116--Control of Air 
Pollution by Permits for New Construction and Modification are as 
follows: Section 116.111--General Application; section 116.114--
Application Review Schedule; section 116.116--Changes to Facilities; 
section 116.183--Public Notice Requirements; section 116.312--Public 
Notification and Comment Procedures; and section 116.740--Public 
Notice.
    [cir] Repeal of 30 TAC section 116.124--Public Notice of Compliance 
History.
    On June 2, 2010, the TCEQ adopted amendments to 30 TAC Chapter 39, 
Public Notice; Chapter 55, Requests for Reconsideration and Contested 
Case Hearings; Public Comment; Chapter 60, Compliance History; and 
Chapter 116, Control of Air Pollution by Permits for New Construction 
or Modification; and corresponding revisions to the Texas SIP. On July 
2, 2010, the TCEQ submitted these new and amended sections regarding 
public participation to EPA as SIP revisions. At that time, TCEQ also 
adopted the withdrawal from consideration by EPA for revisions to the 
Texas SIP that were previously submitted to EPA as revisions to the SIP 
on October 25, 1999; July 31, 2002; and March 9, 2006. The sections 
submitted to EPA in 1999 were 30 TAC sections 39.201; 39.401; 39.403(a) 
and (b)(8)-(10); 39.405(f)(1) and (g); 39.409; 39.411(a), (b)(1)-(6) 
and (8)-(10) and (c)(1)-(6) and (d); 39.413(9), (11), (12) and (14); 
39.418(a) and (b)(3) and (4); 39.419(a), (b), (d), and (e); 39.420(a), 
(b), and (c)(3) and (4); 39.423(a) and (b); 39.601; 39.602; 39.603; 
39.604; and 39.605. The sections submitted to EPA in 2002 were new 30 
TAC section 39.404, and amended sections 39.411, 39.419, 39.420, 
39.603, 39.604 and 39.606. The sections submitted to EPA in 2005 were 
amended 30 TAC sections 39.403(b)(8)-(10) and new (f); 39.411(a), 
(b)(1)-(6), (8)-(10), (c)(1)-(6) and (d); 39.419(a), (b), (d) and (e); 
and 39.420(a), (b) and (c)(3) and (4). In 2005, the TCEQ also submitted 
the repeal of 30 TAC section 39.404 and the adoption of new section 
39.404, and the withdrawal of sections 39.411, 39.419, and 39.420 as 
submitted to EPA in 2002. At that time the TCEQ also adopted the 
withdrawal of the following rules which were submitted as SIP revisions 
on October 25, 1999: 30 TAC sections 55.1; 55.21(a)-(d), (e)(2), (3) 
and (12), (f) and (g); 55.101(a), (b), (c)(6)-(8); 55.103; 55.150; 
55.152(a)(1), (2) and (5); 55.154;

[[Page 68293]]

55.156; 55.200; 55.201(a)-(h); 55.203; 55.205; 55.209; and 55.211. 
Therefore, on July 2, 2010, the TCEQ withdrew from EPA's consideration 
as revisions to the SIP all of the rules specified previously in this 
paragraph, except for three subsections: 30 TAC sections 39.411(a) and 
55.152(b) as adopted in 1999, and currently amended 30 TAC section 
39.418(b)(3), submitted to EPA in 1999 as section 39.418(b)(4). As 
explained below, EPA concludes that it is TCEQ's intent for EPA to 
consider the three subsections as part of the new package that TCEQ 
submitted to EPA on July 2, 2010.

Withdrawal of EPA's Proposed Action on Chapter 39 and Chapter 55

    In this notice, EPA is withdrawing our proposed limited approval 
and limited disapproval of 30 TAC sections 39.201, 39.401, 39.403, 
39.405, 39.409, 39.411, 39.413, 39.418, 39.419, 39.420, 39.423, 39.601-
39.605, 55.1, 55.21, 55.101, 55.103, 55.150, 55.152, 55.154, 55.156, 
55.200, 55.201, 55.203, 55.205, 55.209, and 55.211. While we are 
withdrawing our proposed limited approval and limited disapproval of 
subsections 30 TAC sections 39.411(a), 39.418(b)(4), and 55.152(b) as 
well, we are not taking any further action at this time on these three 
subsections that the State did not withdraw for the reasons discussed 
below.
    First, TCEQ originally intended to withdraw these three subsections 
when it withdrew the rest of the 30 TAC Chapter 39 and 55 subsections 
pertaining to public participation for new and modified sources and 
resubmit them as part of the new July 2010 submission. Their intent is 
demonstrated by the fact that TCEQ proposed to withdraw these three 
subsections from EPA consideration along with all the other withdrawn 
rules. At the time of the Commission's adoption, however, TCEQ did not 
withdraw these three subsections because it discovered that these three 
subsections were inadvertently not included in the notice proposing the 
new public participation rules for the SIP. As such, a final withdrawal 
of these three subsections would have left unintended gaps in the July 
2010 submission. This administrative error can be tracked through the 
State proposal and adoption notices, and is noted in the Commission's 
adoption order and transmittal letter to EPA. See, e.g., discussion in 
the ``Prior SIP Submissions'' section of the rule adoption preamble, at 
page 5198 in the June 18, 2010 edition of the Texas Register.\1\ Thus, 
although TCEQ intended to fully withdraw these three subsections with 
the other pre-2010 submissions and resubmit them as part of the July 
2010 submissions, TCEQ's failure to include these subsections with the 
proposed rule revisions precluded them from reaching that goal. TCEQ 
achieved the intended result by not withdrawing these three 
subsections, and thereby preserving them for EPA's review with the July 
2010 submissions. The end result of this is to present EPA with a 
complete set of integrated provisions upon which to act.
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    \1\ See also the e-mail from Janis Hudson of TCEQ to Lucinda 
Watson of Region 6 EPA dated September 28, 2010, explaining this 
situation, available in the e-docket for this rulemaking.
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    Second, the three unwithdrawn subsections, in the absence of the 
withdrawn provisions, lack the substance that they had in the context 
of the full submission.
     Section 30 TAC 39.411 contains the requirements for the 
``Text of Public Notice.'' The unwithdrawn subsection from this 
section, in 30 TAC 39.411(a), states that ``Applicants shall use notice 
text provided and approved by the agency. The executive director may 
approve changes to notice text before notice being given.'' But, the 
applicable requirements for notice text (contained in subsections 30 
TAC 39.411(b)(1)-(6) \2\ and (8)-(10) and (c)(1)-(6) and (d)) were all 
withdrawn from EPA's consideration on July 2, 2010. As a result, 30 TAC 
39.411(a) lacks the substance that it had in the context of the 
provisions stating the applicable requirements for the notice text.
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    \2\ Note that TCEQ never submitted subsection 30 TAC 
39.411(b)(7) as SIP revisions because it contains a State-only 
requirement under Texas' Coastal Management Program.
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     Subsection 30 TAC 39.418(b)(4) provides a 30-day deadline 
for providing notice of certain ``applicable information,'' stating: 
``Not later than 30 days after the executive director declares an 
application administratively complete: The notice must include the 
applicable information required by section 39.411(b) of this title 
(relating to Text of Public Notice).'' But, TCEQ withdrew the rest of 
30 TAC 39.418 and the cross-referenced 30 TAC 39.411(b) from EPA's 
consideration on July 2, 2010. Thus, 30 TAC 39.418(b) lacks the 
substance that it had in the context of the provisions identifying the 
``applicable information'' and the other parts of 30 TAC 39.418.
     Subsection 30 TAC 55.152(b) states that: ``The public 
comment period shall automatically be extended to the close of any 
public meeting.'' But, in July 2010, TCEQ withdrew the provisions for 
``Public Meetings'' when it withdrew 30 TAC 55.154 and the provisions 
for ``Public Comment Period'' when it withdrew 30 TAC 55.152. Thus, 30 
TAC 55.152(b) lacks the substance that it had in the context of these 
withdrawn provisions.
    Third, these three subsections are integral parts of the newly 
submitted public participation rules. (see the Texas SIP submittal 
dated July 2, 2010). The July 2010 submissions contain the provisions 
that give substance and context to these three subsections. Further, 
these three subsections fit numerically into the July 2010 submissions 
to form an integrated set of provisions.
     Section 30 TAC 39.411 contains the requirements for the 
``Text of Public Notice.'' The unwithdrawn subsection from this 
section, in 30 TAC 39.411(a), states that ``Applicants shall use notice 
text provided and approved by the agency. The executive director may 
approve changes to notice text before notice being given.'' The 
applicable requirements for notice text (contained in subsections 30 
TAC 39.411(b)(1)-(6) and (8)-(10) and (c)(1)-(6) and (d)) is included 
in the July 2010 submission. As a result, newly submitted 39.411(b) 
provides the context and meaning for unwithdrawn 30 TAC 39.411(a).
     Currently amended subsection 39.418(b)(3), submitted to 
EPA in 1999 as subsection 39.418(b)(4) \3\ provides a 30-day deadline 
for providing notice of certain ``applicable information,'' stating: 
``Not later than 30 days after the executive director declares an 
application administratively complete: The notice must include the 
applicable information required by section 39.411(b) of this title 
(relating to Text of Public Notice).'' The remainder of 30 TAC 39.418 
and the cross-referenced 30 TAC 39.411(b) are also contained in the 
July 2010 submission. Thus, the provisions identifying the ``applicable 
information'' and the other parts of 30 TAC 39.418 give meaning to the 
language in the unwithdrawn subsection.
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    \3\ Note that the July 2010 submission deletes the previous 30 
TAC 39.418(b)(3) and simply re-numbers 30 TAC 39.418(b)(4) as 30 TAC 
39.418(b)(3).
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     Subsection 30 TAC 55.152(b) states that: ``The public 
comment period shall automatically be extended to the close of any 
public meeting.'' TCEQ included the provisions for ``Public Comment 
Period'' and ``Public Meetings'' in the July 2010 submission at 30 TAC 
55.152 and 30 TAC 55.154, respectively. Subsection 30 TAC 55.152(b) 
must be

[[Page 68294]]

read in conjunction with these provisions to be meaningful.
    For all of the reasons discussed above, the submission relating to 
public participation on which EPA had an obligation, under the 
Settlement Agreement, to take action is no longer before us. Instead, 
the effect of the July 2010 submissions and withdrawals is to create a 
new submission, as of July 2, 2010, which combines the three 
unwithdrawn provisions with the July 2010 submissions and creates a 
single integrated submission that must subsequently be reviewed as 
provided under section 110(k) of the CAA. Thus, EPA will evaluate these 
three subsections, 30 TAC sections 39.411(a), 55.152(b) and 
39.418(b)(3), when we evaluate, pursuant to section 110(k) of the CAA, 
the newly adopted public participation regulations submitted by Texas 
on July 2, 2010.

Withdrawal of EPA's Proposed Action on Chapter 116

    EPA is also withdrawing our proposed limited approval and limited 
disapproval of the revisions to 30 TAC Chapter 116 submitted on 
December 15, 1995; July 22, 1998; and October 25, 1999. The 30 TAC 
Chapter 116 submissions are not a component of the Settlement 
Agreement, and while TCEQ withdrew the previously-noted sections of 
Chapters 39 and 55, TCEQ has not withdrawn these Chapter 116 
submissions. Specifically, EPA is withdrawing our proposed limited 
approval and limited disapproval of 30 TAC section 116.312 as submitted 
by TCEQ on December 15, 1995. The TCEQ repealed and replaced this 
section with new section 116.312 on July 22, 1998. Therefore, EPA finds 
that the December 15, 1995 submittal of 30 TAC 116.312 is moot. The 
TCEQ submitted new section 116.312 on July 22, 1998 and amendments to 
this section on October 25, 1999. The TCEQ also submitted amendments to 
30 TAC sections 116.111, 116.114, and 116.116 on October 25, 1999. 
Because these sections all cross-reference and rely on the Chapter 39 
public participation provisions that have been withdrawn and replaced 
with the July 2, 2010, SIP submittal, EPA will also consider these 
revisions in the context of the July 2, 2010, Chapter 39 public 
participation SIP submittal. Therefore, we are withdrawing our proposed 
limited approval and limited disapproval and will evaluate the July 22, 
1998 and October 25, 1999, revisions to 30 TAC section 116.312 and the 
October 25, 1999, revisions to 30 TAC sections 116.111, 116.114, and 
116.116 when we evaluate, pursuant to section 110(k) of the CAA, the 
newly adopted public participation regulations submitted by Texas on 
July 2, 2010. EPA is also withdrawing our proposed limited approval and 
limited approval of the October 25, 1999, revisions to 30 TAC section 
116.183. However, because this section provides public notice 
requirements for hazardous air pollutants subject to section 112(g) of 
the CAA, we find that no further action is necessary on the revisions 
to this section because 112(g) requirements are not part of the SIP. 
EPA is also withdrawing our proposed limited approval and limited 
disapproval of the October 25, 1999, revisions to 30 TAC section 
116.740 because EPA fully disapproved this revision in our July 15, 
2010, disapproval of the Texas Flexible Permits Program (see 75 FR 
41312). Note that even though EPA proposed limited approval and limited 
disapproval of 30 TAC sections 116.111, 116.114, 116.116, and 116.312 
at the same that we proposed limited approval and limited disapproval 
of the remainder of the Texas Public Participation provisions, the 
timing of action on these Chapter 116 provisions is not governed by the 
Settlement Agreement. Therefore, our withdrawal today of the proposed 
limited approval and limited disapproval of 30 TAC sections 116.111, 
116.114, 116.116, and 116.312 does not impact in any way EPA's 
obligations or actions under the Settlement Agreement.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: October 29, 2010.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2010-28013 Filed 11-4-10; 8:45 am]
BILLING CODE 6560-50-P
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