[Federal Register Volume 76, Number 219 (Monday, November 14, 2011)]
[Rules and Regulations]
[Pages 70354-70361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29179]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2010-0978; FRL-9489-9]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to the New Source Review (NSR) State Implementation Plan
(SIP); Permit Renewals
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving revisions to the applicable State
Implementation Plan (SIP) for the State of Texas that relate to Permit
Renewals. The portions of the SIP revisions that EPA is approving
address the following requirements related to Permit Renewals:
Notification of permit holder, permit renewal application, and review
schedule. EPA finds that these changes to the Texas SIP comply with the
Federal Clean Air Act (the Act or CAA) and EPA regulations and are
consistent with EPA policies. EPA is taking this action under section
110 of the Act.
DATES: This rule is effective on December 14, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2010-0978. 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., Confidential Business
Information 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 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 Freedom
of Information Act 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 or Mr. Bill Deese at
(214) 665-7253 to make an appointment. If possible, please make the
appointment at least two working days in advance of your visit. There
will be a 15 cent per page fee for making photocopies of documents. On
the day of the visit, please check in at the EPA Region 6 reception
area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
The State submittals are also available for public inspection at
the State Air Agency listed below during official business hours by
appointment: Texas Commission on Environmental Quality (TCEQ), Office
of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212;
fax number (214) 665-6762; email address [email protected].
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
A. What is the background of the Texas Permit Renewals program?
B. What changes did the State submit?
II. What action is EPA taking?
III. EPA's Evaluation
A. Section 30 TAC 116.310--Notification of Permit Holder
1. What is the background of 30 TAC 116.310?
2. What did Texas submit for 30 TAC 116.310?
3. What is EPA's evaluation of the submitted revisions to 30 TAC
116.310?
B. Section 30 TAC 116.311--Permit Renewal Application
1. What is the background of 30 TAC 116.311?
2. What did Texas submit for 30 TAC 116.311?
3. What is EPA's evaluation of the submitted revisions to 30 TAC
116.311?
C. Section 30 TAC 116.314--Review Schedule
1. What is the background of 30 TAC 116.314?
2. What did Texas submit for 30 TAC 116.314?
3. What is EPA's evaluation of the submitted revisions to 30 TAC
116.314?
IV. Response to Comments
V. Final Action
VI. Statutory and Executive Order Reviews
I. The State's Submittals
A. What is the background of the Texas Permit Renewals program?
In this action, EPA is approving revisions to the Texas regulations
relating to renewal of preconstruction permits. The rules for Permit
Renewals are currently approved in the Texas SIP under 30 TAC 116.310,
116.311, 116.312, 116.313, 116.314, and 116.315. EPA approved these
rules on March 10, 2006 (71 FR 12285), and revisions on March 20, 2009
(74 FR 11851), and March 11, 2010 (75 FR 11464). The approved rules
require each preconstruction permit to be renewed every ten years.
Permit renewal is approved based upon a demonstration in the renewal
application that the permitted facility will operate in accordance with
all requirements and conditions of the existing permit, including
representations in the application to construct, any subsequent
amendments, any previously granted renewal, and the compliance history
of the facility. Although preconstruction permits must remain in effect
as long as the source operates and until voided under the approved
implementation procedures, periodic renewal of preconstruction permits
is neither required nor prohibited under the Act or Federal
Regulations.
B. What changes did the State submit?
On December 15, 1995; July 22, 1998; and September 4, 2002; the
State of Texas submitted revisions to the Texas SIP concerning Permit
Renewals under Title 30 of the Texas Administrative Code (30 TAC),
Chapter 116--Control of Air Pollution by Permits for New Construction
or Modification, Subchapter D--Permit Renewals. The December 15, 1995,
revisions to these provisions were superseded and rendered moot by
revisions submitted to EPA on July 22, 1998, because the latter
submittal repealed and replaced the earlier versions of the same
provisions addressed in the December 15, 1995, submittal. Submitted
revisions included changes to 30 TAC 116.310--Notification of Permit
Holder, 30 TAC 116.311--Permit Renewal Application, 30 TAC 116.312--
Public Notification and Comment Procedures, 30 TAC 116.313--Renewal
Application Fees, 30 TAC 116.314--Review Schedule, and 30 TAC 116.315--
Permit Renewal Submittal. In this final action, we are addressing
submitted revisions to 30 TAC 116.310, 116.311, and 116.314.
Section 30 TAC 116.310--Notification of Permit Holder--is currently
approved as adopted by Texas on August 16, 1993, approved March 10,
2006 (71 FR
[[Page 70355]]
12285). Today, we are approving revisions to Section 116.310 that were
adopted by Texas on November 16, 1995 (submitted December 15, 1995) and
June 17, 1998 (submitted July 22, 1998).
Section 30 TAC 116.311--Permit Renewal Application--is currently
approved as adopted by Texas on April 6, 1994, approved March 10, 2006
(71 FR 12285). The requirements of subsection (c) were later removed
from Section 116.311 and added to a new Section 116.315 and approved by
EPA on March 11, 2010 (75 FR 11464). Today, we are approving other
revisions adopted by Texas on November 16, 1995 (submitted December 15,
1995); June 17, 1998 (submitted July 22, 1998); and August 21, 2002
(submitted September 4, 2002). Today's action does not address
severable revisions to 30 TAC 116.311(a)(2) submitted December 15,
1995; July 22, 1998; and September 4, 2002. This provision was revised
to exclude changes under the severable provisions relating to Qualified
Facilities. EPA is not taking action on Paragraph (a)(2) in this
rulemaking. EPA will address the revisions to that provision in a
separate action in connection with the separately submitted revisions
to the Texas Qualified Facilities Program, submitted October 5, 2010.
Section 30 TAC 116.314--Review Schedule--is currently approved as
adopted by Texas on August 16, 1993, approved March 10, 2006 (71 FR
12285). Today, we are approving revisions adopted by Texas on November
16, 1995 (submitted December 15, 1995) and June 17, 1998 (submitted
July 22, 1998).
EPA proposed to approve these SIP revisions on June 6, 2011 (76 FR
32333). In that proposal, we requested public comments on the proposed
action. The public comment period closed July 6, 2011. We received one
comment letter from Baker Botts on behalf of the BCCA Appeal Group
(BCCAAG) and the Texas Industry Project (TIP).
Additional information related to these SIP submittals is contained
in the Technical Support Document (TSD), which is in the docket for
this action.
The table below summarizes the changes that were submitted and are
affected by this action. A summary of EPA's evaluation of each section
and the basis for this final action is discussed in section III of this
preamble. The TSD includes a detailed evaluation of the referenced SIP
submittals.
----------------------------------------------------------------------------------------------------------------
Date adopted by
Section Title Date submitted the State Comments
----------------------------------------------------------------------------------------------------------------
30 TAC 116.310................. Notification of 12/15/1995* 11/16/1995* --Non-substantive
Permit Holder. 7/22/1998* 6/17/1998* changes to the
section.
----------------------------------------------------------------------------------------------------------------
30 TAC 116.311................. Permit Renewal 12/15/1995* 11/16/1995* --Removed paragraphs
Application. 7/22/1998* 6/17/1998* (a)(1), (a)(3), and
(a)(4) and
redesignated existing
paragraphs (a)(2),
(a)(5), and (a)(6) to
paragraphs (a)(1)--
(a)(3), respectively.
.................. ................ ................ --Added new paragraphs
(a)(4) and (a)(5).
.................. ................ ................ --Added new subsection
(b).
--Revised and
redesignated existing
subsection (b) to new
subsection (c).
.................. 9/4/2002 8/21/2002 --Added new paragraph
(a)(1) and
redesignated existing
paragraphs (a)(1)-
(a)(5) to paragraphs
(a)(2)-(a)(6),
respectively.
----------------------------------------------------------------------------------------------------------------
30 TAC 116.314................. Review Schedule... 12/15/1995* 11/16/1995* --Revised and
7/22/1998* 6/17/1998* reorganized subsection
(a) into subsections
(a) and (b).
.................. ................ ................ --Revised and
redesignated existing
subsections (b) and
(c) to subsections (c)
and (d), respectively.
----------------------------------------------------------------------------------------------------------------
* Because Texas repealed and resubmitted each section under Subchapter D in its 7/22/1998 submittal, our
analysis includes 12/15/95 and 7/22/98 SIP submittal together.
II. What action is EPA taking?
We have evaluated the SIP submissions for consistency with the CAA,
NSR regulations for new and modified sources in 40 CFR part 51, and the
approved Texas SIP. We have also reviewed the rules for enforceability
and legal sufficiency.
This action addresses revisions to 30 TAC 116.310, 116.311, and
116.314, submitted December 15, 1995, and July 22, 1998, and revisions
to 30 TAC 116.311 submitted September 4, 2002. A technical analysis of
the submittals for the sections relating to Notification of Permit
Holder, Permit Renewal Application, and Review Schedule has found that
these changes are consistent with the CAA, 40 CFR part 51 and EPA
policies. Therefore, EPA approves the revisions to 30 TAC 116.310, 116
.311,\1\ and 116.314 submitted on December 15, 1995; July 22, 1998; and
September 4, 2002.
---------------------------------------------------------------------------
\1\ However, EPA is taking no action on submitted revisions to
30 TAC 116.311(a)(2). See discussion in section III.B.3.c of this
preamble for further information on why we are taking no action on
30 TAC 116.311(a)(2).
---------------------------------------------------------------------------
III. EPA's Evaluation
A. Section 30 TAC 116.310--Notification of Permit Holder
1. What is the background of 30 TAC 116.310?
The currently approved provisions for 30 TAC 116.310 were submitted
to EPA on August 31, 1993. EPA approved the submitted revisions on
March 10, 2006 (71 FR 12285). These revisions became effective on May
9, 2006.
2. What did Texas submit for 30 TAC 116.310?
Since EPA's last approval for this section, TCEQ has submitted two
SIP revisions to EPA for the Notification of Permit Holder in 30 TAC
116.310 on December 15, 1995, and July 22, 1998. Today we are approving
the revisions of the existing provisions of section 116.310. The
revisions submitted to this section include updated references to the
current agency name and update of a state statutory citation to the
current citation.
3. What is EPA's evaluation of the submitted revisions to 30 TAC
116.310?
These submitted revisions are non-substantive and do not change the
underlying requirements of the section as currently approved. We are
[[Page 70356]]
approving the revisions to 30 TAC 116.310 as submitted December 15,
1995, and July 22, 1998.
B. Section 30 TAC 116.311--Permit Renewal Application
1. What is the background of 30 TAC 116.311?
The currently approved provisions for 30 TAC 116.311 were submitted
to EPA on August 31, 1993, and April 29, 1994. EPA approved the
submitted revisions on March 10, 2006 (71 FR 12285). These revisions
became effective on May 9, 2006.
2. What did Texas submit for 30 TAC 116.311?
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. On March
11, 2010, we approved the recodification and revision of the existing
provisions of Section 116.311(c) to a new Section 116.315--Permit
Renewal Submittal. In this action, we are approving the remaining
revisions as described below, except for the revisions to 30 TAC
116.311(a)(2). This includes the following revisions:
a. Revisions submitted December 15, 1995, and July 22, 1998.
These revisions include:
Removal of Paragraphs (a)(1), (a)(3), and (a)(4), and the
redesignation of existing Paragraphs (a)(2), (a)(5), and (a)(6) to
Paragraphs (a)(1) through (a)(3), respectively;
Addition of new Paragraphs (a)(4) and (a)(5);
Addition of new Subsection (b); and
Redesignation of existing Subsection (b) to Subsection (c)
with non-substantive revisions.
b. Revisions submitted September 4, 2002.
These revisions include the addition of new Paragraph (a)(1) and
redesignation of existing Paragraphs (a)(1) through (a)(4) to
Paragraphs (a)(2) through (a)(5), respectively.
3. What is EPA's evaluation of the submitted revisions to 30 TAC
116.311?
a. The addition of new Paragraph (a)(1).
Texas submitted Paragraph (a)(1) on September 4, 2002. This
paragraph ensures that upon renewal, ``dockside vessel emissions
associated with the permitted facility will comply with all rules and
regulations of the commission and with the intent of the TCAA,
including protection of the health and property of the public and
minimization of emissions to the extent possible, consistent with good
air pollution practices.'' This revision is consistent with the
provision in the SIP-approved 30 TAC 116.111(a)(2) as it relates to
associated dockside vessel emissions. See 72 FR 49198 (August 28,
2007). The TCEQ obtained the authority to regulate dockside emissions
under House Bill (HB) 3040, 77th Legislature, 2001 which amended the
Texas Health and Safety Code (THSC), Texas Clean Air Act (TCAA), Sec.
382.065 (Acts 2001, 77th Legislature, Chapter 1166, Sec. 1). See page
2 of the TCEQ's evaluation of the revisions submitted September 4,
2002. The TCEQ further states:
The commission determined that dockside vessels are facilities
as defined in TCAA, Sec. 382.003(6), and thus subject to the
requirements of Chapter 116. These emissions will require best
available control technology (BACT) review, maximum allowable
emission limitations, monitoring, testing, recordkeeping, and
ambient air impacts review. The emissions originating from a
dockside vessel that are the result of functions performed by
onshore facilities or using onshore equipment include: loading and
unloading of liquid bulk materials, liquefied gaseous materials, and
solid bulk materials; cleaning and degassing liquid vessel
compartments; and abrasive blasting and painting.
See page 4 of the TCEQ's evaluation of the revisions submitted
September 4, 2002.
Finally, concerning the revision to 30 TAC 116.311, the TCEQ
states:
The adopted amendment to Sec. 116.311, Permit Renewal
Application, requires that owners or operators submit information
that demonstrates that dockside emissions comply with all commission
rules and regulations and the intent of the TCAA, including
protection of the health and property of the public and the
minimization of emissions to the extent practicable, consistent with
good air pollution control practices. Existing dockside emissions
will be reviewed for off-property effects considering magnitude,
frequency, and duration.
See page 4 of the TCEQ's evaluation of the revisions submitted
September 4, 2002. The addition of new paragraph (a)(1) ensures that
permits to construct and permit renewals that pre-date TCEQ's rule
change to regulate dockside emissions at 30 TAC 116.111(a)(2) are
required at renewal to ensure all dockside emissions comply with the
statute and regulations. We are approving the addition of Paragraph
(a)(1), submitted September 4, 2002.
b. The removal of existing Paragraph (a)(1).
This paragraph provides that upon renewal the emissions from the
facility will comply with all applicable specifications and
requirements in the Texas Air Control Board (TACB) \2\ rules and the
Texas Clean Air Act (TCAA). Texas submitted the removal of existing
Paragraph (a)(1) on December 15, 1995, and July 22, 1998. This
provision is redundant because the SIP already contains the substantive
requirement at 30 TAC 116.115(b)(2)(H)(ii) requiring that ``[i]f more
than one state or federal regulation or permit condition are
applicable, the most stringent limit or condition shall govern and be
the standard by which compliance shall be demonstrated.'' The SIP also
provides TCEQ with the authority to re-evaluate a source's ability to
comply with the statute and regulations at renewal, as provided in the
existing SIP rule at 30 TAC 116.311(b), and which is recodified to 30
TAC 116.311(c). Because the removal of this paragraph is merely the
removal of a redundant requirement, it is not a relaxation of the SIP.
Therefore, approval of this revision will not interfere with attainment
and reasonable further progress or any other applicable federal
requirement, as required by section 110(l) of the CAA. Accordingly, we
are approving the removal of existing Paragraph (a)(1), submitted
December 15, 1995, and July 22, 1998.
---------------------------------------------------------------------------
\2\ The TACB is a predecessor agency to the TCEQ.
---------------------------------------------------------------------------
c. Revisions to Paragraph (a)(2).
As currently approved, Paragraph (a)(2) provides that upon renewal,
a facility continues to operate in accordance with all requirements and
conditions of the existing permit, including representations in the
application for permit to construct and subsequent amendments, and any
previously granted renewal. This paragraph was revised and redesignated
to Paragraph (a)(1) in the December 15, 1995, and July 22, 1998, SIP
submittals. This paragraph was again redesignated to Paragraph (a)(2)
in the September 4, 2002, SIP submittal. The revisions submitted
December 15, 1995, and July 22, 1998, as redesignated in the September
4, 2002, SIP submittal, were revised to add a provision that excludes
changes otherwise authorized for a Qualified Facility. The submitted
revisions to paragraph (a)(2) are related to severable provisions that
relate to Qualified Facilities that we disapproved on April 14, 2010
(75 FR 19468) and to the separately submitted revisions to the
Qualified Facilities Program on October 5, 2010. We are taking no
action on the severable submitted revision to Paragraph (a)(2) relating
to Qualified Facilities, and we will address these revisions in a
separate action on the submitted revisions to the Qualified Facilities
Program. The approved SIP will retain currently approved
[[Page 70357]]
paragraph (a)(2) as adopted by Texas on April 4, 1994 (submitted April
29, 1994), and approved March 10, 2006.
Accordingly, consistent with our proposal, we will take no action
on the submitted revisions to 30 TAC 116.311(a)(2). The approved SIP
will retain the currently approved provisions of 30 TAC 116.311(a)(2)
as adopted by Texas on April 6, 1994, and approved by EPA on March 10,
2006, 71 FR 12285.
d. The removal of existing Paragraph (a)(3).
This paragraph required that upon renewal the facility will
continue to have appropriate means to measure the emission of
significant air contaminants as determined necessary by the Executive
Director. Texas submitted the removal of Paragraph (a)(3) on December
15, 1995, and July 22, 1998. In its December 15, 1995, submittal Texas
stated:
Existing Sec. 116.311(a)(3) also duplicates a requirement
applicable to the original permit application. An applicant for a
permit to construct must demonstrate that a facility will have
provisions for measuring the emissions of significant air
contaminants, including the installation of sampling ports and
sampling platforms. When necessary, such requirements are written as
conditions of the permit. The renewal review will determine whether
a facility is in compliance with any sampling requirements in its
permit. * * * [A]n owner/operator could not remove sampling ports or
platforms in violation of permit conditions.
Further, 30 TAC Sec. 101.9 provides independent authority for
the TNRCC to require sampling ports and platforms when necessary.
The existing Sec. 116.311(a)(3) was redundant and unnecessary.
See the December 15, 1995, SIP submittal at page 5 of the Section
entitled ``Evaluation of Testimony.'' This provision is redundant
because the SIP already contains the substantive requirement in the
rules at 30 TAC 101.9 and 30 TAC 116.111(a)(2)(B). These two SIP rules
require the following:
Any person, at the request of the Texas Natural Resource
Conservation Commission (TNRCC or Commission), shall provide in
connection with each flue a power source near the point of testing
in addition to such sampling and testing facilities and sampling
ports, including safe and easy access thereto, exclusive of
instruments and sensing devices, as may be necessary for the
Commission to determine the nature and quality of emissions which
are or may be discharged as a result of source operations. Evidence
and data based on these samples and calculations may be used to
substantiate violations of the Act, rules, and regulations. Agents
of the Commission shall be permitted to sample the stacks during
operating hours.
30 TAC 101.9.
(B) Measurement of emissions. The proposed facility will have
provisions for measuring the emission of significant air
contaminants as determined by the executive director. This may
include the installation of sampling ports on exhaust stacks and
construction of sampling platforms in accordance with guidelines in
the ``Texas Natural Resource Conservation Commission (TNRCC)
Sampling Procedures Manual.''
30 TAC 116.111(a)(2)(B).
Because the removal of this paragraph is merely the removal of a
redundant requirement, it is not a relaxation of the SIP. Therefore,
approval of this revision will not interfere with attainment and
reasonable further progress or any other applicable federal
requirement, as required by section 110(l) of the CAA. Accordingly, we
are approving the removal of existing Paragraph (a)(3), submitted
December 15, 1995, and July 22, 1998.
e. The removal of existing Paragraph (a)(4).
This paragraph required that upon renewal the facility will
continue to use the control technology determined by the Executive
Director to be economically reasonable and technically practicable
considering the age of the facility and the impact of its emissions on
the surrounding area. Texas submitted the removal of Paragraph (a)(4)
on December 15, 1995, and July 22, 1998. This provision is redundant
because the SIP already provides for this substantive requirement at 30
TAC 116.311(a)(2) and 30 TAC 116.111(a)(2)(C). Section 30 TAC
116.311(a)(2) provides that upon renewal, the facility is being
operated in accordance with all requirements and conditions of the
existing permit, including representations in the application for
permits to construct and subsequent amendments, and any previously
granted renewal. Therefore, the SIP-approved requirements 30 TAC
116.311(a)(2) require that upon renewal, a facility will continue to
meet the requirements of 30 TAC 116.111(a)(2)(C). This SIP rule
requires that a proposed facility will utilize Best Available Control
Technology (BACT), with consideration given to technical practicability
and economic reasonableness of reducing or eliminating the emissions
from the facility. Because the removal of Paragraph (a)(4) is merely
the removal of a redundant requirement, it is not a relaxation of the
SIP. Therefore, approval of the removal of 30 TAC 116.311(a)(4) will
not interfere with attainment and reasonable further progress or any
other applicable federal requirement, as required by section 110(l) of
the CAA.
The removal of Paragraph (a)(4) also removes a provision that
allows director discretion relating to the control technology that
could be utilized at a facility following renewal. Further, the TCEQ
maintains the authority to impose, as a condition of renewal,
additional requirements that it determines to be economically
reasonable and technically practicable considering the age of the
facility and the impact of its emissions on the surrounding area, as
provided in the submitted revisions related to 30 TAC 116.311(b) (which
is evaluated in section III.B.3.i of this preamble). Accordingly, we
are approving the removal of existing Paragraph (a)(4), submitted
December 15, 1995, and July 22, 1998.
f. Revisions to currently submitted Paragraphs (a)(3) and (a)(4).
These paragraphs are currently approved as Paragraphs (a)(5) and
(a)(6). These paragraphs require that upon renewal, the facility must
continue to meet the applicable requirements of the New Source
Performance Standards (required under section 111 of the Act and 40 CFR
part 60) and the National Emission Standards for Hazardous Air
Pollutants (required under section 112 of the Act and 40 CFR part 61).
These paragraphs were redesignated to Paragraphs (a)(2) and (a)(3) with
non-substantive changes in revisions submitted December 15, 1995, and
July 22, 1998, and were again redesignated to Paragraphs (a)(3) and
(a)(4) in a revision submitted September 4, 2002, with no substantive
changes. The changes to these provisions are non-substantive revisions
to the existing SIP. Accordingly, we are approving the redesignations
and non-substantive changes to these paragraphs as submitted December
15, 1995; July 22, 1998; and September 4, 2002.
g. Addition of new Paragraph (a)(5).
This paragraph was submitted as Paragraph (a)(4) on July 22, 1998,
and then redesignated to Paragraph (a)(5), as submitted September 4,
2002. This paragraph requires that upon renewal, the facility must
continue to meet the applicable requirements of the maximum achievable
control technology standard as listed under 40 CFR part 63, promulgated
by EPA under the authority of section 112 of the CAA, or as listed
under 30 TAC Chapter 113, Subchapter C of this title (relating to
National Emissions Standards for Hazardous Air Pollutants for Source
Categories) (FCAA Sec. 112, 40 CFR part 63). This paragraph ensures
that upon renewal the facility continues to meet the requirements of
the current SIP at 30 TAC 116.111(a)(2)(F), which requires
[[Page 70358]]
permitted facilities to comply with the requirements of 40 CFR part 63.
Accordingly, we are approving the addition of Paragraph (a)(5) as
submitted December 15, 1995; July 22, 1998; and September 4, 2002.
h. Addition of new Subsection (b).
Texas submitted Subsection (b) on December 15, 1995, and July 22,
1998. This section provides that in addition to the requirements in
Subsection (a) of this section, if the TCEQ determines it necessary to
avoid a condition of air pollution or to ensure compliance with
otherwise applicable federal or state air quality control requirements,
then: (1) The applicant may be required to submit additional
information regarding the emissions from the facility and their impacts
on the surrounding area; and (2) the TCEQ shall impose as a condition
for renewal those requirements the Executive Director determines to be
economically reasonable and technically practicable considering the age
of the facility and the impact of its emissions on the surrounding
area. This new subsection provides the Executive Director of the TCEQ
with authority to require additional information and to require
additional requirements above and beyond the requirements stipulated in
Subsection (a) whenever the Executive Director deems such additional
measures are necessary. EPA has already approved Subsection (a) (as
adopted by the State on April 6, 1994) as meeting the requirements of
the Act and 40 CFR part 51. Because the requirements in Subsection (b)
are in addition to the requirements in Subsection (a) of this section,
and because EPA has approved Subsection (a), Subsection (b) can only be
used to impose additional measures when the Executive Director deems
them necessary. Subsection (b) does not authorize the Executive
Director to use the permit renewal process to relax terms and
conditions of the existing permit. Such relaxations of the existing
permit must be authorized through the SIP-approved procedures for
changing a permit under 30 TAC Chapter 116, Subchapter B--New Source
Review Permits.\3\ Further, the addition of subsection (b) provides a
mechanism to ensure that upon renewal, the permit continues to meet the
approved SIP requirements at 30 TAC 116.111(a)(2)(A)(1) which requires
the initial permit must ``comply with all rules and regulations of the
commission and with the intent of the TCAA, including protection of the
health and property of the public.'' The addition of Subsection (b)
provides TCEQ with a mechanism to impose additional requirements at
renewal when TCEQ deems it necessary to address changes in air quality
or changes to applicable federal and state requirements that may occur
after issuance of the initial permit. We therefore find that the
submitted revision to add Subsection (b) to 30 TAC 116.311 meets
section 110(a)(2)(C) of the Act and 40 CFR part 51; and does not
interfere with any applicable requirement concerning attainment and
reasonable further progress, or any other applicable requirement of the
Act. Accordingly, we are approving the addition of the new Subsection
(b) to the SIP.
---------------------------------------------------------------------------
\3\ Also see the SIP approved rule at 30 TAC 116.315(c) which
provides that a renewal application may be submitted at the same
time as an amendment application to modify an existing facility as
long as it is submitted no more than three years before the permit's
expiration date and the amendment is subject to public notice
requirements.
---------------------------------------------------------------------------
i. Revisions to Subsection (c).
This provision is currently approved as Subsection (b). This
subsection requires that upon renewal, the facility shall continue to
meet the requirements under the undesignated heading in Subchapter B
relating to Compliance History. This provision was redesignated to
Subsection (c) with revisions, submitted December 15, 1995, and July
22, 1998. The submitted revisions include changing the citations to
refer to the Compliance History provisions to refer to the SIP-approved
requirement under 30 TAC 116.120 through 116.126 under Subchapter B,
Division 2--Compliance History. The changes also include clarifications
that failure to demonstrate compliance with the Compliance History
requirements shall result in the renewal not being granted. It further
changes the rule to provide that if a contested case hearing has not
been requested, the Executive Director, not the staff, must notify the
applicant of intent to recommend denial of an application for permit
renewal if the TCEQ finds that violations of the compliance history
constitute a recurring pattern of egregious conduct which demonstrates
a consistent disregard for the regulatory process, including failure to
make a timely and substantial attempt to correct the violations. We
find that the submitted revision meets section 110(a)(2)(C) of the Act
and 40 CFR part 51. Accordingly, we are approving the redesignation of
Subsection (b) to Subsection (c) and the revisions thereto as submitted
December 15, 1995, and July 22, 1998.
C. Section 30 TAC 116.314--Review Schedule
1. What is the background of 30 TAC 116.314?
The currently approved provisions for 30 TAC 116.314 were submitted
to EPA on August 31, 1993. EPA approved the submitted revisions on
March 10, 2006 (71 FR 12285). These revisions became effective on May
9, 2006.
2. What did Texas submit for 30 TAC 116.314?
Since EPA's last approval for this section, TCEQ has submitted two
SIP revisions to EPA for this section on December 15, 1995, and July
22, 1998. In this action, we are approving the revisions of the
existing provisions of section 116.314. The revisions submitted to this
section include the following:
Reorganization of Subsection (a) into Subsections (a) and
(b) and redesignation of existing Subsections (b) and (c) to
Subsections (c) and (d).
Non-substantive revisions to the reorganized Subsections
(a) and (b).
Revisions to Subsection (c) as recodified.
Non-substantive revisions to Subsection (d) as recodified.
3. What is EPA's evaluation of the submitted revisions to 30 TAC
116.314?
The revisions to 30 TAC 116.314 are evaluated and addressed as
described below:
a. Revisions to Subsections (a) and (b).
The revisions submitted December 15, 1995, and July 22, 1998,
revised and reorganized Subsection (a) into Subsections (a) and (b).
These revisions include clarifying amendments which streamline and
reorganize the requirements of Subsections (a) and (b). The submitted
changes are non-substantive. Accordingly, we are approving Subsections
(a) and (b) as submitted December 15, 1995, and July 22, 1998.
b. Revisions to Subsection (c).
These provisions are currently approved as Subsection (b). As
approved, this subsection provides that in the event that the permit
holder fails to satisfy the requirements for corrective action by the
deadline specified in the report filed by the TCEQ, the applicant shall
be required to show cause in a contested case proceeding why the permit
should not expire. The proceeding will be pursuant to the requirements
of the Administrative Procedure and Texas Register Act, Article 6252-
13a, V.T.C.S. This subsection was recodified to Subsection
[[Page 70359]]
(c) in the revisions submitted December 15, 1995, and July 22, 1998.
The submitted revisions update the agency name and the statutory
citation relating to contested case hearings and referred to the
contested case hearing provisions in 30 TAC Chapters 1, 55, and 80. The
submitted revision to 30 TAC 116.314(c) includes specific cross-
references to 30 TAC Chapters 1, 55, and 80, which relate to Purpose of
Rules, General Provisions; Request for Contested Case Hearings; Public
Comment; and Contested Case Hearings. In contrast, the current SIP
refers to the Contested Case Hearing Process without cross references
to specific rules relating to Contested Case Hearings. Although the
revision provides references to the specific rules relating to
Contested Case Hearings, the revision does not make substantive changes
to the requirements of the existing SIP. Texas's use of the Contested
Hearing Process in this context in both the current SIP and the
submitted revisions is to inform the permit applicant of the
availability of the contested case hearing but does not incorporate the
specific requirements of Chapters 1, 55, and 80 into the SIP. Further,
the submitted revision to 30 TAC 116.314(c) meets the requirements of
section 110(a)(2)(C) of the Act and 40 CFR part 51, does not interfere
with any applicable requirement concerning attainment and reasonable
further progress, or any other applicable requirement of the Act.
Accordingly, we are approving the revisions to Subsection (c) as
submitted December 15, 1995, and July 22, 1998.
d. Revisions to Subsection (d).
These provisions are currently approved as Subsection (c) and
relate to the effective date of the existing permit. This subsection
was revised and recodified to Subsection (d) in revisions submitted
December 15, 1995, and July 22, 1998. These revisions include
clarifying amendments which streamline the requirements relating to
Permit Renewals. The submitted changes are non-substantive.
Accordingly, we are approving the revision to Subsection (d) as
submitted December 15, 1995, and July 22, 1998.
IV. Response to Comments
EPA received one comment letter submitted jointly by the BCCA
Appeal Group (BCCA) and Texas Industry Project (TIP).
The commenters agreed with EPA's proposed approval of 30 TAC
116.310, 116.311, and 116.314 because approval of these provisions will
enhance the Texas SIP.
We appreciate the commenters' support for our approval of these
Texas Permit Renewals provisions.
The commenters asked EPA to fully approve all of the revisions to
30 TAC 116.311 on the basis that deferral would be inappropriate in
light of the SIP approvability of Section 116.311 as a whole and EPA's
commitment to act on the revisions to it by October 31, 2011.\4\ The
commenters contend that the language at issue in section 116.311(a)(2)
addresses only a requirement for the contents of a permit renewal
application, and it does not independently bring the Qualified
Facilities Program into the SIP. Further, the commenters assert that
requiring applicants to show satisfaction of state requirements that
are not yet SIP-approved does not render the provision unapprovable.
So, rather than deferring action on section 116.311(a)(2) to coincide
with a longer schedule for action on the revised Qualified Facilities
Program, the commenters suggest that EPA should act now to approve
section 116.311(a)(2).
---------------------------------------------------------------------------
\4\ See Consent Decree, BCCA Appeal Group v. EPA, No. 3-
08CV1491-G (N.D. Tex). This Consent Decree has been amended to
extend the deadline for action on 116.311(a)(2) to the date when EPA
takes final action on the Qualified Facilities submittal dated
October 5, 2010.
---------------------------------------------------------------------------
EPA disagrees with the commenters that the revisions to
116.311(a)(2) are approvable at this time. The language of the
revisions exempts renewal applicants from complying with requirements
of the existing SIP-approved permit if the source is authorized as a
Qualified Facility. On April 14, 2010, EPA disapproved the Qualified
Facilities Program (75 FR 19468). On October 5, 2010, Texas submitted
revisions to the Qualified Facilities Program in an effort to address
EPA's concerns noted in our disapproval action. However, EPA has not
had the opportunity to review and take action on these revisions yet,
so the Qualified Facilities Program is not a part of the approved SIP
at this time. We disagree with the commenters' contention that allowing
applicants to show satisfaction of state requirements that are not yet
SIP-approved, in lieu of compliance with SIP-approved requirements,
renders the provision approvable. The submitted revisions to 30 TAC
116.311(a)(2) exempt sources from compliance with permit terms and
conditions on the basis that the source has state-only authorization
under the non-federally approved Qualified Facilities Program. At this
time, EPA is taking no action on the submitted revision to 30 TAC
116.311(a)(2). We will take action on the revision to 30 TAC
116.311(a)(2) when we take action on the October 5, 2010, submitted
revisions to the Qualified Facilities Program.
Finally, commenters urge EPA to act on the proposed SIP approval on
the basis that prompt SIP approvals improve regulatory transparency and
certainty. Commenters state that divergence between the requirements of
state law and the SIP can cause confusion over the applicable
requirements and increase the costs of compliance.
We agree that action on SIP submittals increases certainty for the
regulated community because final action by EPA clarifies whether rules
submitted by a state for inclusion in the SIP are sufficient to meet
federal requirements and are federally enforceable. However, we note
that approvability of an individual SIP submittal turns on whether the
submittal complies with the CAA and applicable federal regulations. EPA
must evaluate each SIP submittal on its own merits and determine what
action to take under CAA section 110(k).
V. Final Action
Today, EPA is approving the following revisions to the Texas SIP:
Revisions to 30 TAC 116.310--Notification of Permit
Holder--submitted December 15, 1995, and July 22, 1998.
Revisions to 30 TAC 116.311--Permit Renewal Application--
submitted December 15, 1995; July 22, 1998; and September 4, 2002; as
follows:
[cir] Addition of new Paragraph (a)(1);
[cir] Removal of existing Paragraphs (a)(1), (a)(3), and (a)(4);
[cir] Revisions to and redesignation of existing Paragraphs (a)(5)
and (a)(6) to Paragraphs (a)(3) and (a)(4), respectively;
[cir] Addition of new Paragraph (a)(5);
[cir] Addition of new Subsection (b); and
[cir] Revisions to and redesignation of existing Subsection (b) to
Subsection (c).
Revisions to 30 TAC 116.314--Review Schedule--submitted
December 15, 1995, and July 22, 1998, as follows:
[cir] Revisions to and reorganization of existing Subsection (a) to
Subsections (a) and (b); and
[cir] Revisions to and redesignation of existing Subsections (b)
and (c) to Subsections (c) and (d), respectively.
Much of this SIP revision re-organizes and makes non-substantive
changes to the Texas renewals program. This revision also revises the
SIP by adding a requirement to ensure that permits that pre-date TCEQ's
rule change to regulate dockside emissions are required at renewal to
ensure all
[[Page 70360]]
dockside emissions comply with the statute and regulations. The
revision also removed the following three requirements from the
renewals process: (1) Upon renewal the emissions from the facility will
comply with all applicable specifications and requirements in the Texas
Air Control Board (TACB) rules and the Texas Clean Air Act (TCAA); (2)
upon renewal the facility will continue to have appropriate means to
measure the emission of significant air contaminants as determined
necessary by the Executive Director; and (3) upon renewal the facility
will continue to use the control technology determined by the Executive
Director to be economically reasonable and technically practicable
considering the age of the facility and the impact of its emissions on
the surrounding area. The removal of these provisions is approvable
because these requirements are provided elsewhere in the Texas SIP; and
therefore, their deletion will not interfere with attainment and
reasonable further progress of the NAAQS or any other applicable
requirement, as required by section 110(l) of the CAA.
Final action on these revisions on or before October 31, 2011, will
meet EPA's obligation on the Permit Renewals component of the May 21,
2009, Consent Decree between EPA and the Business Coalition for Clean
Air Appeal Group, Texas Association of Business, and Texas Oil and Gas
Association.
EPA will address the severable revisions to 30 TAC 116.311(a)(2)
submitted December 15, 1995; July 22, 1998; and September 4, 2002, in a
separate action. While we are processing our separate action on the
revisions to Paragraph (a)(2), we are retaining the currently approved
provisions of paragraph (a)(2) in the SIP as adopted by Texas on April
6, 1994, approved March 10, 2006 (71 FR 12285).
VI. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this notice merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this final action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 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 of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 13, 2012. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: October 31, 2011.
Al Armendariz,
Regional Administrator, Region 6.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Texas
0
2. The table in Sec. 52.2270(c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended under Chapter 116, Subchapter D, by revising
the entries for Sections 116.310, 116.311, and 116.314, to read as
follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
[[Page 70361]]
EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State approval/
State citation Title/subject submittal date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 116--Control of Air Pollution by Permits for New Construction and Modifications
* * * * * * * * *
----------------------------------------------------------------------------------------------------------------
Subchapter D--Permit Renewals
Section 116.310............... Notification of 6/17/1998 11/14/2011, [Insert .....................
Permit Holder. FR page number where
document begins].
----------------------------------------------------------------------------------------------------------------
Section 116.311............... Permit Renewal 8/21/2002 11/14/2011, [Insert --Paragraph (a)(2) is
Application. FR page number where in the SIP as
document begins]. adopted by the State
on 4/6/1994, and
approved by EPA on 3/
10/2006, 71 FR
12285.
--Paragraph
116.311(a)(6) is not
in the SIP.
* * * * * * * * *
Section 116.314............... Review Schedule. 6/17/1998 11/14/2011, [Insert .....................
FR page number where
document begins].
* * * * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2011-29179 Filed 11-10-11; 8:45 am]
BILLING CODE 6560-50-P