[Federal Register: November 14, 2003 (Volume 68, Number 220)]
[Rules and Regulations]
[Page 64543-64550]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14no03-19]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-154-1-7590; FRL-7585-8]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to Regulations for Permits by Rule, Control of Air Pollution
by Permits for New Construction or Modification, and Federal Operating
Permits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is taking final action to approve revisions of the
Texas State Implementation Plan (SIP). The plan revisions include
changes that Texas adopted to address deficiencies that were identified
on January 7, 2002, and other changes adopted by Texas to regulations
that include provisions for Permits by Rule (PBR) and Standard Permits.
This includes revisions that the Texas Commission on Environmental
Quality (TCEQ) submitted to EPA on April 29, 1994; August 17, 1994;
September 20, 1995; April 19, 1996; May 21, 1997; July 22, 1998;
October 25, 1999; January 3, 2000; September 11, 2000; July 25, 2001;
and December 9, 2002. This action is being taken under section 110 of
the Federal Clean Air Act (the Act, or CAA).
EFFECTIVE DATE: This rule is effective on December 15, 2003.
ADDRESSES: Copies of documents relevant to this action are available
for public inspection during normal business hours at the following
locations. Anyone wanting to examine these documents should schedule an
appointment with the appropriate office, if possible, two working days
in advance of the visit.
Environmental Protection Agency, Region 6, Air Permits Section
(6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Stanley M. Spruiell of the Air Permits Section at (214) 665-7212, or spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' means EPA.
Table of Contents
I. What Is Being Addressed in This Document?
II. Final Action Concerning the Notice of Deficiency Issues
III. Final Action Concerning Chapter 106--Permits by Rule
IV. Final Action Concerning Revisions to Chapter 116--Control of Air
Pollution by Permits for New Construction or Modification
V. Final Action Concerning Chapter 122--Federal Operating Permits
VI. Summary of Today's Final Action
VII. Statutory and Executive Order Reviews
I. What Is Being Addressed in This Document?
In today's action we are approving into the Texas SIP revisions to
Chapter 106--Permits by Rule, Chapter 116--Control of Air Pollution by
Permits for New Construction or Modification, and Chapter 122--Federal
Operating Permits. Some of these revisions were made to correct certain
deficiencies identified by EPA in a Notice of Deficiency (NOD) for
Texas' Title V Operating Permit Program. The EPA issued the NOD on
January 7, 2002 (67 FR 732), under its authority at 40 CFR 70.10(b).
The NOD was based upon EPA's finding that several State requirements
for the Title V operating permits program did not meet the minimum
Federal requirements of 40 CFR part 70 and the Act. Texas adopted rule
revisions to address the potential to emit (PTE) requirements
identified in the January 7, 2002, NOD. Texas submitted parts of these
and other rule changes as revisions to its SIP on December 9, 2002,
including revisions to section 106.6--Registration of Emissions,
section 116.115--General and Special Conditions, section 116.611--
Registration to Use a Standard Permit, and section 122.122--Potential
to Emit.
The December 9, 2002, submittal also includes revisions to Texas'
Title V Operating Permits Program. We will address these and other
regulations which revise Texas' Operating Permits Program, in a
separate Federal Register action.
The December 9, 2002, SIP submittal includes revisions to Texas'
regulations for PBR and Texas' regulations for Standard Permits. The
EPA is also approving earlier SIP submittals which include the adoption
of Texas' programs for PBR and Standard Permits under Chapter 106--
Permits by Rule; Chapter 116, Subchapter F--Standard Permits,
[[Page 64544]]
section 116.14--Standard Permit Definitions in Chapter 116, Subchapter
A--Definitions, and Sections 116.110 and 116.116 in Subchapter B--New
Source Review Permits. Furthermore, the approval of the submitted
provisions of Chapter 106 would replace the current SIP-approved
section 116.6--Exemptions. Accordingly, we are removing section 116.6
from the SIP.
On July 9, 2003 (68 FR 40865), we proposed to approve into the
Texas SIP the revisions to Chapter 106, Chapter 116, and Chapter 122,
as described above. In response to our proposal, we received no
comments.
In today's action, consistent with the following discussion, we are
approving these revisions to Chapters 106, 116, and 122, as part of the
Texas SIP.
II. Final Action Concerning the Notice of Deficiency Issues
A. What Was the PTE Registration Deficiency Which Required a SIP
Revision?
Many stationary source requirements of the Act apply only to major
sources, whose emissions of air pollutants exceed a threshold emissions
level specified in the Act. However, such sources may legally avoid
program requirements by taking Federally-enforceable permit conditions
which limit their PTE to a level below the applicable major source
threshold. Those permit conditions, if violated, are subject to
enforcement by EPA, the State or local agency, or by citizens. Federal
enforceability ensures that the conditions placed on emissions to limit
a source's PTE are enforceable as both a legal and practical matter.
Texas has adopted regulations which enable a source to register and
certify that its PTE is below the applicable major source threshold.
These certified registrations contain a description of how the source
will limit its PTE below the major source threshold and include
appropriate operation and production limitations, appropriate
monitoring and recordkeeping which demonstrate compliance with the
operation and production limits which the source is certifying to meet.
In the NOD, we informed Texas that section 122.122 was not
practicably enforceable because the regulation allowed a facility to
keep all documentation of its PTE limitation on site without providing
any notification to the State or EPA. Therefore, neither the public,
TCEQ, nor EPA could determine the PTE limitation without going to the
site. A facility could change its PTE limit several times without the
public or TCEQ knowing about the change. Therefore, these limitations
were not practically enforceable, and TCEQ has revised this regulation
to make it practically enforceable. The NOD required that the revised
regulation be approved into the SIP before it and the registrations are
Federally enforceable. See 67 FR 735.
B. How Did Texas Address This Deficiency?
To address this deficiency, TCEQ amended section 122.122 to require
certified registrations of emissions establishing a Federally-
enforceable emission limit to be submitted to the Executive Director of
TCEQ, the appropriate regional office, and all local air pollution
control agencies having jurisdiction over the site. In addition, the
Commission submitted the amended section 122.122 to EPA as a revision
to the Texas SIP. Section 122.122 states that all representations with
regard to emissions, production or operational limits, monitoring, and
reporting shall become conditions upon which the stationary source
shall operate and shall include documentation of the basis of emission
rates (section 122.122(b)-(c)).
C. Do the Changes Correct the PTE Registration Deficiency?
The TCEQ has revised Chapter 122 to require registrations to be
submitted to the Executive Director, to the appropriate Commission
regional office, and all local air pollution control agencies, and a
copy to be maintained on-site at the facility. The rule therefore
satisfies the legal requirement for practical enforceability which was
cited in the NOD. Accordingly, we are approving section 122.122 as a
revision to the Texas SIP and to find that the revision to section
122.122 satisfies Texas' requirement to correct the PTE registration
deficiency identified in the January 7, 2002, NOD.
III. Final Action Concerning Chapter 106--Permits by Rule
A. What Are We Approving?
We are approving provisions of Subchapter A (General Requirements)
under Chapter 106 which Texas submitted July 25, 2002, and revisions
submitted December 9, 2002. This includes the following Sections:
section 106.1--Purpose, section 106.2--Applicability, section 106.4--
Requirements for Permitting by Rule, section 106.5--Public Notice,
section 106.6--Registration of Emissions, section 106.8--Recordkeeping,
and section 106.13--References to Standard Exemptions and Exemptions
from Permitting.
B. What Is the History of PBR and Chapter 106?
Prior to 1993, Standard Exemptions were addressed in section 116.6
which we approved August 13, 1982 (47 FR 35193). In a SIP submittal
dated August 31, 1993, Texas recodified the provisions for Standard
Exemptions into Subchapter C of Chapter 116. In 1996, Texas
subsequently recodified its provisions for Standard Exemptions into
Chapter 106. In 2000, Texas redesignated the Standard Exemptions to
PBR.
On July 25, 2002, Texas submitted Subchapter A which includes
Sections 106.1, 106.2, 106.4, 106.5, 106.6, 106.8, and 106.13. On
December 9, 2002, Texas submitted revisions to section 106.6 which
address procedures by which registrations of emissions effectively
limit a source's PTE. Because these Sections replace Subchapter C of
section 116, as submitted August 31, 1993, there is no need for EPA to
act on Subchapter C of section 116.
C. What Is a PBR?
A PBR is a permit which is adopted under Chapter 106. Chapter 106
provides an alternative process for approving the construction of new
and modified facilities or changes within facilities which TCEQ has
determined will not make a significant contribution of air contaminants
to the atmosphere. These provisions provide a streamlined mechanism for
approving the construction of certain small sources which would
otherwise be required to apply for and receive a permit before
commencing construction or modification.
A PBR is available only to sources which belong in categories for
which TCEQ has adopted a PBR in Chapter 106. A PBR is available only to
a facility that is authorized to emit no more than 250 tons per year
(tpy) of carbon monoxide (CO) or nitrogen oxides (NOX); or
25 tpy of volatile organic compounds (VOC), sulfur dioxide
(SO2), or inhalable particulate matter (PM10); or
25 tpy of any other air contaminant, except carbon dioxide, water,
nitrogen, methane, ethane, hydrogen, and oxygen (section 106.4(a)(1)).
A PBR is not available to a facility or group of facilities which
undergo a change which constitutes a new major source or major
modification under Title I of the Act, part C (Prevention of
Significant Deterioration of Air Quality) or part D (Nonattainment
Review) (section 106.(a)(2)-(3)). Such major source or major
modification must comply with the applicable permitting requirements
under Chapter 116, Subchapter B,
[[Page 64545]]
which meet the new source review requirements of Title I, part C or
part D of the Act. A facility which qualifies for a PBR must also
comply with all applicable provisions of section 111 of the Act
(Standards of Performance for New Stationary Sources or New Source
Performance Standards (NSPS)) and section 112 of the Act (National
Emission Standards for Hazardous Air Pollutants (NESHAP)) (section
106.4(a)(6)). Furthermore, a facility which qualifies for a PBR must
comply with all rules and regulations of TCEQ (section 106.4(c)).
D. Are Texas' PBR Approvable?
The PBR are approvable as meeting the requirements of 40 CFR part
51, subpart I--Review of New Sources and Modifications (subpart I).\1\
Section 106.1 provides that only certain types of facilities or changes
within facilities which do not make a significant contribution of air
contaminants to the atmosphere are eligible for a PBR. This satisfies
the requirements of 40 CFR 51.160(a) which provides that the SIP must
include procedures that enable the permitting authority to determine
whether the construction or modification will result in a violation of
applicable portions of the control strategy or interfere with
attainment or maintenance of a national ambient air quality standard.
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\1\ Subpart I contains the provisions that a SIP must include to
address the construction of new sources and the modification of
existing sources. Subpart I includes sections 51.160-51.166.
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Section 106.4 further provides additional requirements that a
facility must meet to qualify for a PBR. Such requirements include:
[sbull] Limiting PBR only to facilities which are authorized to
emit no more than 250 tpy of CO or NOX; or 25 tpy of VOCs,
SO2, or inhalable PM10; or 25 tpy of any other
air contaminant, except carbon dioxide, water, nitrogen, methane,
ethane, hydrogen, and oxygen. This meets 40 CFR 51.160(e), which
provides that the SIP must identify the types and sizes of facilities
which will be subject to review.
[sbull] Any facility or group of facilities which constitutes a new
major source of major modification under part C or D of Title I of the
Act must be permitted under regulations for Nonattainment Review or
Prevention of Significant Deterioration of Air Quality. Such sources
are not eligible for a PBR. This meets 40 CFR 51.165 (Permit
requirements) and 51.166 (Prevention of significant deterioration of
air quality).
[sbull] Sources qualifying for a PBR must meet all applicable
requirements under section 111 of the Act (NSPS) and section 112 of the
Act (NESHAP), and must comply with all rules of TCEQ. This satisfies
the requirements of 40 CFR 51.160(d) which require that approval of any
construction or modification must not affect the responsibility of the
owner or operator to comply with applicable portions of the control
strategy.
[sbull] Subchapter A includes all the administrative requirements
which support the issuance and enforcement of PBR. This includes
registration of emissions which limit a source's PTE (section 106.6),
and Recordkeeping, which requires each source subject to a PBR to
maintain records sufficient to demonstrate compliance with all
conditions of the applicable PBR (section 106.8). These provisions
satisfy the requirements in 40 CFR 51.163, which require the plan to
contain the administrative procedures that will be followed in making
the determination under 40 CFR 51.160(a). It also meets the
requirements of 40 CFR 51.211 which requires the owner or operator to
maintain records and to periodically report to the State the nature and
amounts of emissions and information necessary to determine whether a
source is in compliance.
[sbull] All PBR must be adopted or revised through rulemaking to
incorporate the PBR into the applicable Subchapters under Chapter 106.
Such new or revised PBR must undergo public notice and a 30-day comment
period, and TCEQ must address all comments received from the public
before finalizing its action to issue or revise a PBR. This meets the
requirements of 40 CFR 51.161, which requires the permitting authority
to provide for opportunity for public comment on the State's analysis
of the effect of construction or modification on ambient air quality.
The TSD contains further information on how Subchapter A of Chapter
106 meets the requirements of subpart I.
E. Why Are We Only Approving Subchapter A of Chapter 106?
Texas submitted Subchapter A because that subchapter contains the
process by which TCEQ will issue or modify PBR. Subpart A contains the
provisions which apply to all PBR and which ensure that individual PBR
meet the requirements of subpart I. The individual PBR are adopted in
Subchapters B through X, of Chapter 106.\2\ In 1996, Texas codified its
existing Standard Exemptions into Subchapters B through X and
redesignated them to PBR in 2000. Because these existing Standard
Exemptions were adopted under section 116.6, which is currently SIP-
approved, they meet the requirements of subpart I. Furthermore, new and
amended PBR are adopted in accordance with the general requirements in
Subchapter A, which meet the applicable requirements of subpart I as
discussed above. Accordingly, our approval of Subchapter A of Chapter
106 is sufficient to assure that the PBR meet the requirements in
subpart I.
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\2\ Subchapters B through X of Chapter 106 were not submitted to
EPA approval as SIP revisions.
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F. What Other Actions Are We Taking in Relation to PBR?
The provisions for PBR in Chapter 106 replace the former provisions
for exemptions from permitting which we had approved in section 116.6--
Exemptions. Because Chapter 106 replaced the exemptions previously
authorized under section 116.6, we are removing section 116.6 from the
SIP.
IV. Final Action Concerning Revisions to Chapter 116--Control of Air
Pollution by Permits for New Construction or Modification
A. Subchapter A--Definitions
1. What Are We Approving?
We are approving section 116.14--Standard Permit Definitions.
Section 116.14 includes definitions of the following terms as they are
used in Chapter 116, Subchapter F--Standard Permits: Off-plant
receptor, oil and gas facility, and sulfur recovery unit.
2. Are These Definitions Approvable?
These definitions are approvable based upon their being comparable
to corresponding terms defined elsewhere in EPA regulations.
Specifically, the definition of ``off-plant receptor'' is consistent
with the definition of ``ambient air'' in 40 CFR 50.1(e). The
definitions of ``oil and gas facility'' and ``sulfur recovery unit''
are consistent with the terms ``natural gas processing plant'' and
``sulfur recovery plant'' as defined in 40 CFR 60.630 and 60.641
respectively. The TSD contains further information on our basis for
approving these definitions. These definitions support the provisions
of Subchapter F (Standard Permits) which we are also approving.
B. Subchapter B--New Source Review Permits (for minor sources)
1. What Are We Approving?
We are approving revisions to the following: section 116.110--
Applicability; section 116.115--General and Special Conditions, and
section 116.116--Changes to Facilities.
[[Page 64546]]
2. What Is Our Basis for Approving These Changes?
a. Section 116.110--Applicability. We are approving revisions to
section 116.110 \3\, which Texas submitted April 29, 1994; July 22,
1998; and September 11, 2000. These changes revise section 116.110 to
add or revise references to provisions which relate to PBR and Standard
Permits, which we are approving elsewhere in this action. We are
approving the following:
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\3\ On September 18, 2002 (67 FR 58709), EPA approved section
116.110, as adopted June 17, 1998. We did not approve Sections
116.110(a)(2), (a)(3), and (c).
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[sbull] Approval of paragraph (2) of section 116.110(a) which
incorporates references to conditions of Standard Permits. This meets
40 CFR 51.160(e), which provides that the SIP must identify the types
and sizes of facilities which will be subject to review.
[sbull] Approval of nonsubstantive revision to section
116.110(a)(4), to change the reference from ``exemptions from
permitting'' to ``permits by rule.''
[sbull] Approve a nonsubstantive change to section 116.110(b) to
remove a reference to flexible permits.
b. Section 116.115--General and Special Conditions. We are
approving revisions to section 116.115 \4\, which Texas submitted April
29, 1994; August 17, 1994; July 22, 1998; and December 9, 2002; as
follows:
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\4\ On September 18, 2002 (67 FR 58709), EPA approved section
116.115, as adopted June 17, 1998. We did not approve Sections
116.115(b), (c)(2)(A)(i), and (c)(2)(A)(ii)(I).
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[sbull] Approval of Subsection (b) to section 116.115 \5\, as
submitted July 22, 1998; and December 9, 2002; which incorporates the
General Provisions that holders of Permits, Special Permits, Standard
Permits, and Special Exemptions must meet. Subsection (b) includes
provisions relating to notification to the State concerning the
progress of construction and start-up, requirements for sampling and
recordkeeping, requirements to meet emissions limits specified in the
permit, requirements concerning maintenance of emission control, and
compliance with rules.
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\5\ In this action, we are not approving section
116.115(b)(2)(C)(iii). This provision relates to Mass Emissions Cap
and Trade Program and was not adopted in the submittals that we are
approving in this action. We will address section
116.115(b)(2)(C)(iii) in a separate action.
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[sbull] Approval of paragraph (b)(2)(F)(vi) (submitted December 9,
2002) which requires that a person who certifies and registers a
Federally enforceable emission limitation under section 116.611 must
retain all records demonstrating compliance for at least five years.
[sbull] The above provisions meet the requirements of 40 CFR
51.163, 51.211, 51.212, and 51.230. See the TSD for more information
concerning how these requirements are met.
c. Section 116.116--Changes to Facilities. We are approving
revisions to section 116.116 \6\, which Texas submitted October 25,
1999 \7\; and September 11, 2000; as follows:
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\6\ On September 18, 2002 (67 FR 58709), EPA approved section
116.116, as adopted June 17, 1998. We did not approve Sections
116.116(b)(3), (e), and (f).
\7\ We are approving only the changes to section 116.116,
submitted October 25, 1999, which relate to PBR. This includes
changes to section 116.116(d) and (d)(1)-(2). We are taking no
action on changes to section 116.116(b)(3)-(4), submitted October
25, 1999, because these provisions do not relate to PBR or to
Standard Permits. We will address section 116.116(b)(3)-(4) in a
separate action.
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[sbull] Approve nonsubstantive changes to section 116.116(d) and
(d)(1)-(2) to change the existing reference from ``exemptions from
permitting'' to ``permits by rule.''
[sbull] Approve nonsubstantive changes to section 116.116(c)(4)-(5)
to correct a cross reference from section 116.111(3) to section
116.111(a)(2)(C).
C. Subchapter F--Standard Permits
1. What Are We Approving?
We are approving the following Sections in Subchapter F of Chapter
116: section 116.601--Types of Standard Permits, section 116.602--
Issuance of Standard Permits, section 116.603--Public Participation in
Issuance of Standard Permits, section 116.604--Duration and Renewal of
Registrations to Use Standard Permits, section 116.605--Standard Permit
Amendment and Revocation, section 116.606--Delegation, section
116.610--Applicability, section 116.611--Registration to Use a Standard
Permit, section 116.614--Standard Permit Fees, and section 116.615--
General Conditions.
2. What Is a Standard Permit?
A Standard Permit is a permit which is adopted under Chapter 116,
Subchapter F. Subchapter F provides an alternative process for
approving the construction of certain categories of new and modified
sources for which TCEQ has adopted a Standard Permit. These provisions
provide for a streamlined mechanism for approving the construction of
certain sources within categories which contain numerous similar
sources.
A Standard Permit is available to sources which belong in
categories for which TCEQ has adopted a Standard Permit under
Subchapter F of Chapter 116. A Standard Permit is not available to a
facility or group of facilities which undergo a change which
constitutes a new major source or major modification under Title I of
the Act, part C (Prevention of Significant Deterioration of Air
Quality) or part D (Nonattainment Review). Such major source or major
modification must comply with the applicable permitting requirements
under Chapter 116, Subchapter B, which meet the new source review
requirements in Title I, part C or part D of the Act. A facility which
qualifies for a Standard Permit must also comply with all applicable
provisions of section 111 of the Act (NSPS) and section 112 of the Act
(NESHAP). Furthermore, a facility which qualifies for a Standard Permit
must comply with all rules and regulations of TCEQ.
3. Are Texas' Provisions for Standard Permits Approvable?
Texas' Standard Permits are approvable as meeting the requirements
of subpart I. Subchapter F under Chapter 116 provides the requirements
that a facility must meet to qualify for a Standard Permit. Such
requirements include:
[sbull] Any facility or group of facilities which constitutes a new
major source or major modification under part C or D of Title I of the
Act must be permitted under regulations for Nonattainment Review or
Prevention of Significant Deterioration of Air Quality. Such sources
are not eligible for a Standard Permit. This meets 40 CFR 51.165
(Permit requirements) and 51.166 (Prevention of significant
deterioration of air quality).
[sbull] Sources qualifying for a Standard Permit must meet all
applicable requirements under section 111 of the Act (NSPS) and section
112 of the Act (NESHAP), and must comply with all rules of TCEQ. This
satisfies the requirements of 40 CFR 51.160(d) which requires that
approval of any construction or modification must not affect the
responsibility of the owner or operator to comply with applicable
portions of the control strategy.
[sbull] Subchapter F includes all the administrative requirements
which support the issuance and enforcement of a Standard Permit. This
includes registration of emissions which limit a source's PTE and
Recordkeeping, which requires each source subject to a Standard Permit
to maintain records sufficient to demonstrate compliance with all
conditions of the applicable Standard Permit. These provisions satisfy
the requirements in 40 CFR 51.163 which requires the plan to contain
the administrative procedures that will be followed in making the
[[Page 64547]]
determination under 40 CFR 51.160(a). These provisions also meet the
requirements of 40 CFR 51.211 which require the owner or operator to
maintain records and to periodically report to the State the nature and
amounts of emissions and information necessary to determine whether a
source is in compliance.
[sbull] All Standard Permits are adopted or revised through the
process described in Sections 116.601-116.605. Such new or revised
Standard Permits must undergo public notice and a 30-day comment
period, and TCEQ must address all comments received from the public
before finalizing its action to issue or revise a Standard Permit. This
meets the requirements of 40 CFR 51.161 which requires the permitting
authority to provide for opportunity for public comment on the
information submitted and the State's analysis of the effect on
construction or modification on ambient air quality.
The TSD contains further information on how Subchapter F of Chapter
116 meets the requirements of subpart I.
4. What Sections in Subchapter F Are We Not Approving in This Action?
We are not approving the following Sections in Subchapter F:
section 116.617--Standard Permits for Pollution Control Projects,
section 116.620--Installation and/or Modification of Oil and Gas
Facilities, and section 116.621--Municipal Solid Waste Landfills.
Approval of these sections is not necessary for our approval of Texas'
PBR and Standard Permits regulations submitted to EPA on December 9,
2002. Sections 116.617, 116.620, and 116.621 will be addressed in a
separate action.
As stated previously, we are approving changes which Texas
submitted December 9, 2002, some of which address the deficiencies that
we identified in our January 7, 2002, NOD. In that submittal, Texas
submitted revisions to section 116.611--Registration to Use a Standard
Permit. Section 116.611 is part of Subchapter F--Standard Permits. To
date, we have not approved the provisions relating to Standard Permits,
including the earlier submittals of section 116.611. Section 116.611 is
part of, and dependent upon, other provisions of Subchapter F, and
consequently section 116.611 cannot stand alone. Therefore, we must
approve other provisions of Subchapter F, including the earlier
submittals of section 116.611, which contain the process by which Texas
issues and modifies Standard Permits when we approve the revisions to
section 116.611 which Texas submitted December 9, 2002.
In order to approve section 116.611, we are addressing the
provisions of Subchapter F which include the process for issuing and
modifying Standard Permits. We are approving the provisions for issuing
and modifying Standard Permits which are found in Sections 116.601-
116.606, 116.610-116.611, and 116.614-116.615.
Sections 116.617, 116.620, and 116.621 are specific permits that
Texas has issued. These Sections do not include any provisions relating
to the process by which they (or any Standard Permit) must be issued or
modified. The Sections which address the process for issuing and
modifying Standard Permits (as identified above) are not dependent on
the provisions of Sections 116.617, 116.620, and 116.621, and can be
implemented without the approval of Sections 116.617, 116.620, and
116.621. Thus, today's final action does not include action on Sections
116.617, 116.620, and 116.621. We are also taking no action today on
section 116.601(a)(1) which contains cross-references to Sections
116.617, 116.620, and 116.621. We will review and take appropriate
action on Sections 116.617, 116.620, and 116.621, as well as section
116.601(a)(1), separately.
In addition, we are taking no action on section 116.610(d).
Subsection (d) of section 116.610 addresses projects subject to
Subchapter C of Chapter 116 (relating to Hazardous Air Pollutants:
Regulations Governing Constructed or Reconstructed Major Sources (FCAA,
Sec. 112(g)). We have not completed our review of the provisions of
Subchapter C. We will address Subchapter C and other provisions
referring to Subchapter C (including section 116.610(d)) in a separate
action.
V. Final Action Concerning Chapter 122--Federal Operating Permits
A. What Are We Approving?
We are approving section 122.122--Potential to Emit, as submitted
December 9, 2002.
B. Is Section 122.122 Approvable?
Section 122.122 contains provisions by which a source may register
and certify limitations on its production and operation which would
limit its PTE below the level of a ``major source'' as defined under 40
CFR 70.2. Texas revised the rule to address a deficiency identified in
the NOD. The changes that were made and our evaluation of why the
changes are approvable are discussed in section II of this preamble.
VI. Summary of Today's Final Action
We are approving revisions of the Texas SIP to address Texas' SIP
submittal dated December 9, 2002. This includes Sections 106.6,
revisions to section 116.115, and Sections 116.611 and 122.122. These
SIP revisions relate to Texas' programs for PBR, Standard Permits, and
Operating Permits.
The regulations allow a source to limit its PTE of a pollutant
below the level of a major source defined in the Act. This includes
regulations which Texas revised to allow an owner or operator of a
source to register and certify restrictions and limitations that the
owner or operator will meet to maintain its PTE below the major source
threshold. The changes require the owner or operator to submit the
certified registrations to the Executive Director of TCEQ, the
appropriate TCEQ regional office, and to all local air pollution
control agencies having jurisdiction over the site. The changes to
section 122.122 satisfactorily address the NOD by making the PTE limits
in the certified registrations practically and Federally enforceable.
We are also approving other provisions of Chapters 106 and 116
which incorporate Texas' regulations for PBR and Standard Permits that
Texas submitted to EPA on April 29, 1994; August 17, 1994; September
20, 1995; April 19, 1996; May 21, 1997; July 22, 1998; October 25,
1999; January 3, 2000; September 11, 2000; July 25, 2001; and December
9, 2002.
VII. Statutory and Executive Order Reviews
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).
[[Page 64548]]
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, in the absence of a prior existing 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. The 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.
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, 2004. 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,
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen dioxide,
Ozone, Particulate Matter, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.
Dated: November 5, 2003.
Richard E. Greene,
Regional Administrator, Region 6.
0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations 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 as follows:
0
(a) Under Chapter 101, Subchapter H, immediately following section
101.363, by adding a new centered heading ``Chapter 106--Permits by
Rule'' followed by a centered heading ``Subchapter A--General
Requirements,'' followed by new entries for Sections 106.1, 106.2,
106.4, 106.5, 106.6, 106.8, and 106.13;
0
(b) Under Chapter 116 (Reg 6), by removing the existing entry for
section 116.6, Exemptions;
0
(c) Under Chapter 116 (Reg 6), Subchapter A, immediately following
section 116.12, by adding a new entry for section 116.14;
0
(d) Under Chapter 116 (Reg 6), Subchapter B, Division 1, by revising
the existing entries for Sections 116.110, 116.115, and 116.116;
0
(e) Under Chapter 116 (Reg 6), Subchapter B, Division 7, immediately
following section 116.170, by adding a new centered heading
``Subchapter F--Standard Permits'' followed by new entries for Sections
116.601, 116.602, 116.603, 116.604, 116.605, 116.606, 116.610, 116.611,
116.614, and 116.615; and
0
(f) Under Chapter 118 (Reg 8), immediately following section 118.6, by
adding a new centered heading entitled ``Chapter 122--Federal Operating
Permits Program'' followed by a new centered heading entitled
``Subchapter B--Permit Requirements'' followed by a new centered
heading ``Division 2--Applicability,'' followed by a new entry for
section 122.122.
The additions and revisions read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State
approval /
State citation Title / Subject submittal EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 101.363............... Program Audits and 09/26/01 11/04/01, 66 FR
Reports. 57260.
Chapter 106--Permits by Rule
Subchapter A--General Requirements
Section 106.1................. Purpose............. 08/09/00 11/14/03 [and page
number].
[[Page 64549]]
Section 106.2................. Applicability....... 08/09/00 11/14/03 [and page
number].
Section 106.4................. Requirements for 03/07/01 11/14/03 [and page
Permitting by Rule. number].
Section 106.5................. Public Notice....... 09/02/99 11/14/03 [and page
number].
Section 106.6................. Registration of 11/20/02 11/14/03 [and page
Emissions. number].
Section 106.8................. Recordkeeping....... 10/10/01 11/14/03 [and page
number].
Section 106.13................ References to 08/09/00 11/14/03 [and page
Standard Exemptions number].
and Exemptions from
Permitting.
* * * * * * *
Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
Subchapter A--Definitions
* * * * * * *
Section 116.12................ Nonattainment Review 02/24/99 07/17/00, 65 FR
Definitions. 43994.
Section 116.14................ Standard Permit 06/17/98 11/14/03 [and page
Definitions. number].
Subchapter B--New Source Review Permits
Division 1--Permit Application
Section 116.110............... Applicability....... 08/09/00 11/14/03 [and page The SIP does not include
number]. sections 116.110(a)(3),
(a)(5), and (c).
* * * * * * *
Section 116.115............... General and Special 11/20/02 11/14/03 [and page The SIP does not include
Conditions. number]. sections
116.115(b)(2)(C)(iii)
and (c)(2)(B)(ii)(I).
Section 116.116............... Changes to 08/09/00 11/14/03 [and page The SIP does not include
Facilities. number]. sections 116.116(b)(3),
(b)(4), (e), and (f).
* * * * * * *
Section 116.170............... Applicability of 06/17/98 09/18/02, 67 FR The SIP does not include
Reduction Credits. 58709. section 116.170(2).
Subchapter F--Standard Permits
Section 116.601............... Types of Standard 12/16/99 11/14/03 [and page The SIP does not include
Permits. number]. section 116.170(a)(1).
Section 116.602............... Issuance of Standard 12/16/99 11/14/03 [and page
Permits. number].
Section 116.603............... Public Participation 08/09/00 11/14/03 [and page
in Issuance of number].
Standard Permits.
Section 116.604............... Duration and Renewal 12/16/99 11/14/03 [and page
of Registrations to number].
Use Standard
Permits.
Section 116.605............... Standard Permit 12/16/99 11/14/03 [and page
Amendment and number].
Revocation.
Section 116.606............... Delegation.......... 12/16/99 11/14/03 [and page
number].
Section 116.610............... Applicability....... 12/16/99 11/14/03 [and page The SIP does not include
number]. section 116.610(d).
Section 116.611............... Registration to Use 11/20/02 11/14/03 [and page
a Standard Permit. number].
Section 116.614............... Standard Permit Fees 12/16/99 11/14/03 [and page
number].
Section 116.615............... General Conditions.. 06/17/98 11/14/03 [and page
number].
* * * * * * *
Section 118.6................. Texas Air Pollution 03/05/00 07/26/00...........
Episode Contingency
Plan and Emergency
Management Center.
Chapter 122--Federal Operating Permits Program
Subchapter B--Permit Requirements
Division 2--Applicability
Section 122.122............... Potential to Emit... 11/20/02 11/14/03 and page
number.
----------------------------------------------------------------------------------------------------------------
[[Page 64550]]
[FR Doc. 03-28416 Filed 11-13-03; 8:45 am]
BILLING CODE 6560-50-P