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Approval and Promulgation of Air Quality Implementation Plans; Texas; Control of Air Pollution by Permits for New Construction or Modification

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the Texas State Implementation Plan (SIP). This action approves provisions for alternate language public notice for certain preconstruction permits or permit renewals and provisions for preconstruction permit renewals. It approves SIP revisions that Texas submitted to EPA on August 31, 1993; April 29, 1994; August 17, 1994; and July 22, 1998. The provisions that EPA is approving supplement the current requirements for new construction and modifications and are more stringent than the Federal Clean Air Act (CAA or the Act) and EPA regulations. We are approving the revisions under sections 110 and 116 of the Act.

DATES:

This direct final rule is effective on May 9, 2006 without further notice, unless EPA receives significant adverse comment by April 10, 2006. 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-OAR-2004-TX-0006, by one of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
  • 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.
  • E-mail: Mr. David Neleigh at neleigh.david@epa.gov. Please also cc the person listed in the FOR FURTHER INFORMATION CONTACT section below.
  • Fax: Mr. David Neleigh, Chief, Air Permits Section (6PD-R), at fax number 214-665-7263.
  • Mail: Mr. David Neleigh, Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
  • Hand or Courier Delivery: Mr. David Neleigh, 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 8:00 a.m. and 4:00 p.m. 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-OAR-2004-TX-0006. EPA's policy is that all comments received, including any personal information provided, will be included in the public file without change and may be made available online at http://docket.epa.gov/​rmepub/​ unless the comment includes information claimed to be Confidential Business Information (CBI) or other information the disclosure of which 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 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 of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in Start Printed Page 12286 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 a.m. and 4:30 p.m. weekdays except for legal holidays. To make an appointment, contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below. 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 submittal is also available by appointment for public inspection at the State Air Agency listed below during official business hours:

Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

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FOR FURTHER INFORMATION CONTACT:

Mr. Stanley M. Spruiell, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733; telephone (214) 665-7212; fax number 214-665-7263; e-mail address spruiell.stanley@epa.gov.

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SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” or “our” means the EPA. Also, in 1993 the Texas Air Control Board (TACB) merged with the Texas Water Commission to become the Texas Natural Resource Conservation Commission (TNRCC), which in 2002 underwent a name change and is now the Texas Commission on Environmental Quality (TCEQ). The revisions to Chapter 116 that we are acting upon herein were adopted by Texas prior to the agency's most recent name change. All rules and regulations, orders, permits, and other final actions taken by the TCEQ's predecessor agencies remain in full effect unless and until revised by the TCEQ. References to the TACB or to the TNRCC in the provisions we are approving in this action should be read to mean the TCEQ.

Outline

I. What Is Being Addressed in This Document?

II. Have the Requirements for Approval of a SIP Revision Been Met?

III. What Final Action Is EPA Taking?

IV. Statutory and Executive Order Review

I. What Is Being Addressed in This Document?

We are taking direct final action to approve revisions to the Texas SIP. These revisions are changes made by the State to Title 30 Texas Administrative Code (30 TAC) Chapter 116—Control of Air Pollution by Permits for New Construction and Modification. Texas submitted these SIP revisions to EPA on August 31, 1993; April 29, 1994; August 17, 1994; and July 22, 1998. Existing Texas SIP provisions that have already been approved by EPA are listed in 40 CFR 52.2270 (40 CFR part 52, subpart SS).

The revisions pertaining to alternate language public notice for certain preconstruction permits or permit renewals are in 30 TAC section 116.132—Public Notice Format; and section 116.133—Sign Posting Requirements. Texas submitted these revisions, which add new subsections (c) and (d) to section 116.132 and new subsections (f) and (g) to section 116.133, on August 17, 1994, and nonsubstantive revisions to these subsections on July 22, 1998. These four new subsections that we are approving in today's action address the requirements for alternate language public notice publication and sign posting.

The revisions pertaining to preconstruction permit renewals are found in 30 TAC section 116.310—Notification of Permit Holder; section 116.311—Permit Renewal Application; section 116.312—Public Notification and Comment Procedures; section 116.313—Renewal Application Fees; and section 116.314—Review Schedule. Texas submitted these new sections to EPA on August 31, 1993, and submitted revisions to section 116.311 on April 29, 1994. These submittals, which we are approving in this action, address the requirements for renewal of preconstruction permits.

We have prepared a technical support document (TSD) that contains our evaluation of these SIP revisions and our basis for why they are approvable. The TSD is in the docket for this action.

II. Have the Requirements for Approval of a SIP Revision Been Met?

A. Alternate Language Public Notice

The current SIP provides in section 116.132(a) and (b) that the applicant for a preconstruction permit or permit renewal must publish public notices in a publication of general circulation in the municipality in which the facility is located, or proposed to be located, or in the municipality nearest to the location or proposed location of the facility. The current SIP also provides in section 116.133(a) through (e) that the applicant must place at the site of the proposed facility a sign or signs declaring the filing of an application for a permit and stating the contact information of the appropriate TCEQ regional office that may be contacted for further information. We approved sections 116.132(a) and (b) and 116.133(a) through (e) on September 18, 2002, (67 FR 58697) as revised rules meeting both the public notice provisions in the Act and in 40 CFR 51.161—Public availability of information.

In this action, we are approving new subsections (c) and (d) in section 116.132 and new subsections (f) and (g) in section 116.133. New subsection (c) in section 116.132 (Public Notice Format) prescribes publication of alternate language public notice and generally applies whenever either the elementary school or the middle school nearest to the facility or proposed facility provides a bilingual education program. When publication of alternate language notice is required, the applicant must publish an additional notice in each alternate language in which the bilingual education program is taught. Each such notice must be published in a newspaper or other publication that is published in the alternative language in which the notice is required and that is generally circulated in the municipality or county in which the facility is located or proposed to be located. Pursuant to paragraph (c)(4), the alternate language public notice publication requirements are waived if a publication in the alternate language does not exist or if the publishers of the alternate language publication refuse to publish the notice. Under new subsection (d) in section 116.132, publication of the alternate language notice is not required if the elementary or middle schools offer English as a second language and are not otherwise governed by the bilingual education program requirement of 19 TAC 89.1205(a).

New subsection (f) in section 116.133 (Sign Posting Requirements) prescribes alternate language sign posting and generally applies whenever either the elementary school or the middle school nearest to the facility or proposed facility provides a bilingual education program. When alternate language sign posting is required, the applicant must post an additional sign in each alternative language in which the bilingual education program is taught and such sign shall be posted adjacent to each English language sign required by section 116.133. The alternate language sign posting requirements Start Printed Page 12287must be fulfilled without regard to the alternate language public notice publication requirements of section 116.132(c). Pursuant to new subsection (g) in section 116.133, alternate language sign posting is not required if the elementary or middle schools offer English as a second language and are not otherwise governed by the bilingual education program requirement of 19 TAC 89.1205(a).

Before EPA may approve SIP revisions, section 110(l) of the Act requires a demonstration of noninterference with any applicable requirement concerning nonattainment, reasonable further progress toward attainment of National Ambient Air Quality Standards (NAAQS), or any other applicable requirement of the Act. The provisions to provide public notice and sign posting in alternate languages that EPA is approving in today's action revise the preconstruction public notification requirements in the Texas SIP; these new provisions do not change the currently approved public notice and sign posting requirements but rather supplement these existing requirements. These revisions to the Texas SIP—specifically, the addition of sections 116.132(c) and (d) and 116.133(f) and (g)—are administrative and procedural in nature and will not affect emissions. Furthermore, these revisions are more stringent than the public participation requirements of the Act and of EPA regulations and therefore improve the existing SIP. Because these alternate language public notice provisions are more stringent than either the Clean Air Act or EPA regulations require for public participation, these revisions to the Texas SIP will not interfere with Texas' compliance with the requirements of the Act relating to public participation, nonattainment, reasonable further progress, or any other applicable requirements under the Act or EPA regulations.

We are approving the alternate language public notice provisions in sections 116.132(c) and (d) and 116.133(f) and (g) as being more stringent than the requirements of the Act and of EPA's regulatory requirements for preconstruction public notice; thus sections 116.132 and 116.133, as currently adopted by Texas and submitted to EPA for approval into the Texas SIP, are approved in their entirety by EPA as meeting the requirements of the Act and of EPA regulations. These revisions, relating to alternate language public notice for certain preconstruction permits or permit renewals, improve the existing SIP.

B. Permit Renewals

New sections 116.310 through 116.314 provide for the periodic renewal of preconstruction permits. Under section 116.311(c) (relating to Permit Renewal Application), permits must be renewed according to the following renewal schedule: (1) Any permit issued before December 1, 1991, is subject for review and renewal 15 years after the date of issuance; (2) any permit issued on or after December 1, 1991, is subject for review and renewal ten years after the date of issuance; or (3) for cause, a permit issued after December 1, 1991, may contain a provision requiring renewal at a period between five and ten years. See section 116.311(c)(1) through (c)(3).

Under section 116.310—Notification of Permit Holder, the TCEQ will provide written notice to the preconstruction permit holder that the permit is scheduled for renewal no less than 180 days prior to expiration of the permit.

In order to be granted a preconstruction permit renewal, section 116.311(a) (relating to Permit Renewal Application) requires the permit holder to submit information demonstrating that: (1) The emissions from the facility comply with all applicable specifications and requirements of the TCEQ and the Texas Clean Air Act; (2) the facility is being operated in accordance with all requirements and conditions of the existing permit; (3) the facility has appropriate means to measure the emissions of significant air contaminants; (4) the facility uses 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; (5) the facility meets the requirements of any applicable new source performance standard under 40 CFR part 60; and (6) the facility meets the requirements of any applicable emission standard for hazardous air pollutants under 40 CFR part 61. Section 116.311(b) provides that the TCEQ shall review the compliance history of the facility in consideration of granting a renewal. In order for the preconstruction permit to be renewed, the application must include information that demonstrates the facility is or has been operating in substantial compliance with the provisions of the Texas Clean Air Act and with the terms of the existing permit. The renewal will not be granted if the facility has a compliance history that demonstrates failure to maintain substantial compliance with the Texas Clean Air Act or with the terms of the existing permit or if violations in the compliance history constitute a recurring pattern of egregious conduct that demonstrates a consistent disregard for the regulatory process.

Section 116.312 (Public Notification and Comment Procedures) requires that any application for preconstruction permit renewal shall be subject to the public notification and comment procedure requirements in Chapter 116, subchapter B, sections 116.132—Public Notice Format, 116.133—Sign Posting Requirements, and 116.136—Public Comment Procedures. Section 116.313 (Renewal Application Fees) provides that a renewal application is subject to a fee based on total allowable emissions. The minimum fee is $300 and the maximum fee is $10,000.

Section 116.314 (Review Schedule) provides the review schedule for a renewal application. The TCEQ shall renew a permit and notify the permit holder in writing if it meets the requirements for renewal. If the TCEQ finds that the permit cannot be renewed, the TCEQ must provide a report that describes the basis for denial to the permit holder within 180 days of receipt of a completed renewal application. If denial is based on failure to meet the requirements of section 116.311(a), the report shall establish a schedule for compliance with the renewal requirements; the permit shall be renewed if the renewal requirements are met according to the schedule. If denial is based upon failure to maintain substantial compliance with the Texas Clean Air Act or with the terms of the existing permit, the denial shall be final.

Before EPA may approve SIP revisions, section 110(l) of the Act requires a demonstration of noninterference with any applicable requirement concerning nonattainment, reasonable further progress toward attainment of NAAQS, or any other applicable requirement of the Act. The provisions for preconstruction permit renewals supplement the existing new source review provisions by requiring that new and modified facilities continue to meet the terms and conditions both of their permits and of applicable regulatory requirements and that these sources do not adversely impact air quality in the surrounding area. These revisions to the Texas SIP—specifically, the addition of sections 116.310 through 116.314—are administrative and procedural in nature and will not affect emissions. Furthermore, although preconstruction permits must remain in effect as long as the source operates and until voided under the approved implementation plan procedures, periodic renewal of Start Printed Page 12288preconstruction permits is neither required nor prohibited under the Act or Federal regulations; therefore, these revisions to the Texas SIP are more stringent than the preconstruction permitting requirements of the Act and of EPA regulations and improve the existing SIP. Because the preconstruction permit renewal provisions in sections 116.310 through 116.314 are more stringent than either the Clean Air Act or EPA regulations require for preconstruction permitting, these revisions to the Texas SIP will not interfere with Texas' compliance with the requirements of the Act relating to preconstruction permitting, nonattainment, reasonable further progress, or any other applicable requirements under the Act or EPA regulations.

We are approving the provisions for preconstruction permit renewals in sections 116.310 through 116.314 as being more stringent than the requirements of the Act and of EPA's regulatory requirements for preconstruction permitting. These revisions, relating to renewal of preconstruction permits, improve the existing SIP.

III. What Final Action Is EPA Taking?

EPA is approving revisions to the Texas SIP that the State submitted to EPA on August 31, 1993; April 29, 1994; August 17, 1994; and July 22, 1998. These revisions include the addition of alternate language public notice requirements for certain preconstruction permits or permit renewals to sections 116.132 (Public Notice Format) and 116.133 (Sign Posting Requirements) in 30 TAC Chapter 116, subchapter B, Division 3, and the addition of provisions for preconstruction permit renewals in sections 116.310 through 116.314 in 30 TAC Chapter 116, Subchapter D.

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no significant adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if significant adverse comments are received. This rule will be effective on May 9, 2006 without further notice unless we receive significant adverse comment by April 10, 2006. If we receive significant adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect and 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 at this time. Please note that if we receive significant adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

IV. Statutory and Executive Order Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context and in the absence of a preexistent requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 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 May 9, 2006. 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).)

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List of Subjects in 40 CFR Part 52

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Dated: February 28, 2006.

Richard E. Greene,

Regional Administrator, Region 6.

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is amended as follows:

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PART 52—[AMENDED]

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1. The authority citation for Part 52 continues to read as follows:

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

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Subpart SS—Texas

[Amended]
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2. The table in § 52.2270(c) entitled “EPA Approved Regulations in the Texas SIP” is amended as follows:

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a. Under Chapter 116, Subchapter B, Division 3, by revising the entries for sections 116.132 and 116.133.

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b. Under Chapter 116, Subchapter B, Division 7, immediately following the entry for section 116.170, by adding a new centered heading entitled “Subchapter D—Permit Renewals” followed by new entries for sections 116.310, 116.311, 116.312, 116.313, and 116.314.

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The revisions and additions read as follows:

Identification of plan.
* * * * *

(c) * * *

EPA-Approved Regulations in the Texas SIP

State citationTitle/subjectState approval/submittalEPA approval dateExplanation
*         *         *         *         *         *         *
Chapter 116—Control of Air Pollution by Permits for New Construction or Modification
*         *         *         *         *         *         *
Subchapter B—New Source Review Permits
*         *         *         *         *         *         *
Division 3—Public Notice
*         *         *         *         *         *         *
Section 116.132Public Notice Format06/17/9803/10/06 [Insert FR page number where document begins].
Section 116.133Sign Posting Requirements06/17/9803/10/06 [Insert FR page number where document begins].
*         *         *         *         *         *         *
Subchapter D—Permit Renewals
Section 116.310Notification of Permit Holder08/16/9303/10/06 [Insert FR page number where document begins].
Section 116.311Permit Renewal Application04/06/9403/10/06 [Insert FR page number where document begins].
Section 116.312Public Notification and Comment Procedures08/16/9303/10/06 [Insert FR page number where document begins].
Section 116.313Renewal Application Fees08/16/9303/10/06 [Insert FR page number where document begins].
Section 116.314Review Schedule08/16/9303/10/06 [Insert FR page number where document begins].
*         *         *         *         *         *         *
* * * * *
End Supplemental Information

[FR Doc. 06-2317 Filed 3-9-06; 8:45 am]

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