[Federal Register Volume 68, Number 131 (Wednesday, July 9, 2003)]
[Proposed Rules]
[Pages 40865-40871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17339]



[[Page 40865]]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-154-1-7590; FRL-7525-5]


Approval and Promulgation of Implementation Plans; Texas; 
Revisions to Regulations for Permits by Rule (PBR), Control of Air 
Pollution by Permits for New Construction or Modification, and Federal 
Operating Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is proposing 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 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; January 3, 2000; September 11, 2000; 
October 4, 2001; 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).

DATES: The EPA must receive your written comments on this proposal no 
later than August 8, 2003.

ADDRESSES: Comments may be submitted to Guy Donaldson, Acting Section 
Chief, Air Permits Section, Environmental Protection Agency, Region 6, 
Air Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-
2733. Comments may also be submitted electronically or through hand 
delivery/courier. Please follow the detailed instructions described in 
Part (I)(B)(1)(i) through (iii) of the Supplementary Information.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell of the Air 
Permits Section at (214) 665-7212, or at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' means EPA.

Table of Contents

I. General Information
II. What Is a SIP?
III. What Is the Federal Approval Process for a SIP?
IV. What Does Federal Approval of a State Regulation Mean to Me?
V. What Is Being Addressed in this Document?
VI. Proposed Action Concerning the Notice of Deficiency (NOD) Issues
VII. Proposal to Approve Chapter 106--Permits by Rule
VIII. Proposal to Approve Chapter 116--Control of Air Pollution by 
Permits for New Construction or Modification
IX. Proposal to Approve Chapter 122--Federal Operating Permits
X. What Is Our Proposed Action?
XI. Statutory and Executive Order Reviews

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. The 
EPA has established an official public rulemaking file for this action 
under TX-154-1-7590. The official public file consists of the documents 
specifically referenced in this action, any public comments received, 
and other information related to this action. Although a part of the 
official docket, the public rulemaking file does not include 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. The official public 
rulemaking file is the collection of materials that is available for 
public viewing at the Air Permits Section, EPA Region 6, 1445 Ross 
Avenue, Dallas, Texas 75202. The EPA requests that if at all possible, 
you contact the contact listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 am to 4:30 pm 
excluding Federal Holidays.
    2. Copies of the State submittal and EPA's Technical Support 
Document (TSD) are also available for public inspection during normal 
business hours, by appointment at the State Air Agency. TCEQ, Office of 
Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.
    3. Electronic Access. You may access this Federal Register document 
electronically through the Regulation.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and that are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection. The EPA will process materials marked as CBI as described 
in section C.

B. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking TX-154-1-7590'' in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. 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.
    i. Electronic Mail (E-mail). Comments may be sent by e-mail to 
[email protected]). Please include the text ``Public comment on 
proposed rulemaking TX-154-1-7590'' in the subject line. EPA's e-mail 
system is not an ``anonymous access'' system. If you send an e-mail 
comment directly

[[Page 40866]]

without going through the Regulations.gov Web site, EPA's e-mail system 
automatically captures your e-mail address. E-mail addresses that are 
automatically captured by EPA's e-mail system are included as part of 
the comment that is placed in the official public docket, and made 
available in EPA's electronic public docket.
    ii. Regulations.gov. Your use of the Regulations.gov Web Site is an 
alternative method of submitting electronic comments to EPA. Go 
directly to Regulations.gov at http://www.regulations.gov, then select 
Environmental Protection Agency at the top of the page and use the go 
button. The list of current EPA actions available for comment will be 
listed. Please follow the online instructions for submitting comments. 
The web-based system is an ``anonymous access'' system, which means EPA 
will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Section 2, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    2. By Mail. Send your comments to: Mr. Guy Donaldson, Acting Chief, 
Air Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-
2733; ``Public comment on proposed rulemaking TX-154-1-7590'' in the 
subject line on the first page of your comment.
    3. By Hand Delivery or Courier. Deliver your comments to: Mr. Guy 
Donaldson, Acting Chief, Air Permits Section (6PD-R), 1445 Ross Avenue, 
Dallas, Texas 75202-2733. Such deliveries are only accepted during the 
Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 am to 4:30 
pm excluding Federal holidays.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR Part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the FOR FURTHER INFORMATION CONTACT section above.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate 
regional file/rulemaking identification number in the subject line on 
the first page of your response. It would also be helpful if you 
provided the name, date, and Federal Register citation related to your 
comments.

II. What Is a SIP?

    Section 110 of the Act requires States to develop air pollution 
regulations and control strategies to ensure that State air quality 
meets the Federal national ambient air quality standards. These ambient 
standards are established by EPA pursuant to sections 108 and 109 of 
the Act, and there are currently standards for six criteria pollutants: 
carbon monoxide (CO), nitrogen dioxide (NO2), ozone, lead, 
particulate matter (PM10), and sulfur dioxide 
(SO2).
    Each State must submit these regulations and control strategies to 
us for approval and incorporation into the State's Federally-
enforceable SIP.
    Each Federally-approved SIP protects air quality primarily by 
addressing air pollution at its point of origin. These SIPs can be 
extensive, containing State regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

III. What Is the Federal Approval Process for a SIP?

    In order to be incorporated into the Federally-enforceable SIP, 
States must formally adopt regulations and control strategies 
consistent with State and Federal requirements. This process generally 
includes a public notice, public hearing, public comment period, and 
formal adoption by a State-authorized rulemaking body.
    Once a State regulation or control strategy is adopted, the State 
submits it to us for approval and for inclusion into its SIP. We must 
then provide for public notice and comment regarding our proposed 
action on the State submission. If we receive adverse comments, we must 
address them prior to taking final Federal action.
    All State regulations and supporting information we approve under 
section 110 of the Act are incorporated into the Federally-approved 
SIP. Records for such SIP actions are maintained in the CFR at title 
40, part 52, entitled ``Approval and Promulgations of State 
Implementation Plans.'' The actual State regulations which are approved 
are not reproduced in their entirety in the CFR, but are ``incorporated 
by reference,'' which means that we have approved a given State 
regulation with a specific effective date.

IV. What Does Federal Approval of a State Regulation Mean to Me?

    Enforcement of the State regulation before and after it is 
incorporated into the Federally-approved SIP is primarily a State 
responsibility. However, after the regulation is Federally approved, we 
are authorized to take enforcement action against violators. Citizens 
are also offered legal recourse to address violations as described in 
the Act.

V. What Is Being Addressed in This Document?

    In today's action we are proposing to approve 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 an NOD for Texas' 
title V Operating Permit Program. The EPA issued the NOD on January 7, 
2002, (67 FR 723) under its

[[Page 40867]]

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 deficiencies 
identified in the January 7, 2002, NOD. Texas submitted parts of these 
rule changes as revisions to its SIP on December 9, 2002. This includes 
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. Elsewhere in today's Federal 
Register, we are proposing to approve these and other regulations which 
revise Texas' Operating Permits Program.
    The December 9, 2002, SIP submittal included revisions to Texas' 
regulations for PBR and Texas' regulations for Standard Permits. In 
order to approve the revised regulations which affect the PBR and 
Standard Permits, EPA must approve earlier SIP submittals which include 
the adoption of Texas' programs for PBR and Standard Permits. 
Accordingly, we are also proposing to approve rules submitted by Texas 
under Chapter 106--Permits by Rule; Chapter 116, Subchapter F--Standard 
Permits; 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 proposing to 
approve removal of Section 116.6 from the SIP.
    In today's action, consistent with the following discussion, we are 
proposing to approve these revisions to Chapters 106, 116, and 122 as 
part of the Texas SIP.

VI. Proposed Action Concerning the Notice of Deficiency (NOD) Issues

A. What Were the Deficiencies Which Require a SIP Revision?

    Many stationary source requirements of the Act apply only to major 
sources, which are those sources with the potential to emit (PTE) an 
air pollutant exceeds a threshold emissions level specified in the Act. 
However, such sources may legally avoid program requirements by taking 
Federally-enforceable permit conditions which limit its 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 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 that 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 (106 and 116 do not 
require this), appropriate monitoring and recordkeeping which 
demonstrates compliance with the operation and production limits which 
the source is certifying to meet. Texas provides for such registration 
in Sections 106.6--Registration of Emissions, 116.611--Registration to 
Use a Standard Permit, and 122.122--PTE.
    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 These Deficiencies?

    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 Commission. 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)).
    The Commission also amended Chapter 106 (Section 106.6) and Chapter 
116 (Sections 116.115\1\ and 116.611) because they also contain 
language relating to documentation requirements for establishing 
Federally-enforceable PTE limits for PBR and for standard permits. 
These changes were also submitted to EPA as a SIP revision. These rules 
state that all representations with regard to construction plans, 
operating procedures, and maximum emissions rates in any certified 
registration under this section become conditions upon which the 
facility permitted by rule or a standard permit shall be constructed 
and operated and that registrations must include documentation of the 
basis of emission rates listed on the registration. Registrations must 
be submitted on the required form. See Sections 106.6(c)-(d) and 
116.611(a) and (c).
---------------------------------------------------------------------------

    \1\ Texas revised Section 116.115 and paragraph (b)(2)(F)(vi) 
which provides that persons certifying and registering a Federally 
enforceable emission limitation under Section 116.611 must retain 
records demonstrating compliance with the registrations for at least 
five years. We discuss this change to Section 116.115 in section 
VIII.B.2 of this preamble.
---------------------------------------------------------------------------

C. Do the Changes Correct the Deficiencies?

    The TCEQ has revised Chapters 106, 116, and 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 of the facility. 
The rule therefore satisfies the legal requirement for practical 
enforceability which was cited in the NOD. Accordingly, we are 
proposing to approve the Sections 106.6, 116.611, and 122.122 and the 
amendments to Section 116.115 as revisions to the Texas SIP and to find 
that the revisions to Section 122.122 satisfy Texas' requirement to 
correct the identified program deficiency identified in the January 7, 
2001, NOD.

VII. Proposal To Approve Chapter 106--Permits by Rule

A. What Are We Proposing To Approve?

    We propose to approve provisions of Subchapter A (General 
Requirements) under Chapter 106 (PBR) 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.

[[Page 40868]]

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 that 250 tons per year 
(tpy) of CO or NOX; or 25 tpy of volatile organic compounds 
(VOC), SO2, or inhalable 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, 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 (new source performance 
standards) and section 112 of the Act (Hazardous Air Pollutants) 
(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 provisions of 40 CFR Subpart 
I--Review of New Sources and Modifications (Subpart I).\2\ 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.
---------------------------------------------------------------------------

    \2\ Subpart I includes 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.
---------------------------------------------------------------------------

    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 that 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 (new source performance 
standards) and section 112 of the Act (hazardous air pollutants), 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. 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 
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 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 A 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.\3\ 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

[[Page 40869]]

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.
---------------------------------------------------------------------------

    \3\ Subchapters B through X of Chapter 106 were not submitted to 
EPA approval as SIP revisions.
---------------------------------------------------------------------------

F. What Other Actions Are We Proposing 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 proposing to remove Section 
116.6 from the SIP.

VIII. Proposal To Approve Chapter 116--Control of Air Pollution by 
Permits for New Construction or Modification

A. Subchapter A--Definitions

1. What Are We Proposing To Approve?
    We propose to approve Section 116.14--Standard Permit Definitions. 
Section 116.14 includes definitions of the following terms as they are 
used in 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 
proposing to approve these definitions. We are proposing approval of 
these definitions as support for 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 Proposing To Approve?
    We are proposing to approve revisions to the following: Section 
116.110--Applicability; Section 116.115--General and Special 
Conditions, and Section 116.116--Changes to Facilities.
2. What Is Our Basis for Approving These Changes?
    a. Section 116.110--Applicability. We propose to approve revisions 
to Section 116.110,\4\ 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 proposing to approve elsewhere in this action. We 
propose the following:
---------------------------------------------------------------------------

    \4\ On October 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).
---------------------------------------------------------------------------

    [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 proposing to approve revisions to Section 116.115,\5\ which 
Texas submitted April 29, 1994; August 17, 1994; July 22, 1998; and 
December 9, 2002; as follows:
---------------------------------------------------------------------------

    \5\ On October 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). 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 proposing to approve in this action. 
We will address Section 116.115(b)(2)(C)(iii) in a separate action.
---------------------------------------------------------------------------

    [sbull] Approval of Subsection (b) to Section 116.115, 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.
    [sbull] Approval of a 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 proposing to approve revisions to Section 116.116,\6\ which 
Texas submitted October 25, 1999;\7\ and September 11, 2000; as 
follows:
---------------------------------------------------------------------------

    \6\ On October 18, 2002 (67 FR 58709), EPA approved Section 
116.116, as adopted June 17, 1998. We did not approve Sections 
116.116(b)(3) and (e)-(f).
    \7\ We are proposing to approve only the changes to Section 
116.116, submitted October 24, 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 
24, 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.
---------------------------------------------------------------------------

    [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 
116.111(a)(2)(C).

C. Subchapter F--Standard Permits

1. What Are We Proposing To Approve?
    We are proposing to approve 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 of 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.

[[Page 40870]]

    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 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 (new source performance standards) 
and section 112 of the Act (Hazardous Air Pollutants). Furthermore, a 
facility which qualifies for a Standard Permit must comply with all 
rules and regulations of TCEQ.
3. Are the Provisions for Standard Permits Approvable?
    Texas' Standard Permits are approvable as meeting the provisions of 
40 CFR Subpart I--Review of New Sources and Modifications (Subpart I). 
Subchapter F 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 of 
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 (new source 
performance standards) and section 112 of the Act (hazardous air 
pollutants), and must comply with all rules of TCEQ. This satisfies the 
requirements of 40 CFR 51.160(d) which requires that approval or 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 (Section 
116.611) 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 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 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 A meets the 
requirements of Subpart I.
4. What Sections in Subchapter F Are We Not Proposing To Approve in 
This Action?
    We are not proposing to approve 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 proposing to approve 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 today proposing to approve 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 of 
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 proposal does not include action on Sections 
116.617, 116.620, and 116.621. We will review and take appropriate 
action on Sections 116.617, 116.620, and 116.621, separately.

IX. Proposal To Approve Chapter 122--Federal Operating Permits

A. What Are We Proposing To Approve?

    We are proposing to approve Section 122.122--PTE, 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 which would make it 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 
VI of this preamble.

X. What Is Our Proposed Action?

    We are proposing the approval of 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

[[Page 40871]]

for PBR, Standard Permits, and Operating Permits.
    The regulations allow a source to limit its PTE of a pollutant 
below the level which would make it a major source as 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.
    The revisions submitted December 9, 2002, are parts of Texas' 
regulations for PBR and Standard Permits, which EPA has not approved to 
date. Because the revisions concerning the certification and 
registration or PTE limits affect the regulations for PBR and Standard 
Permits, we also propose to approve 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; 
January 3, 2000; September 11, 2000; October 4, 2001; July 25, 2001; 
and December 9, 2002.

XI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 (Public Law 104-4).
    This proposed 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 proposes to approve 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 
proposed 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 proposed 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.).

List of Subjects in 40 CFR Part 52

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

    Dated: June 30, 2003.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. 03-17339 Filed 7-8-03; 8:45 am]
BILLING CODE 6560-50-P