[Federal Register Volume 78, Number 225 (Thursday, November 21, 2013)]
[Rules and Regulations]
[Pages 69773-69777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27991]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R06-OAR-2006-0593; FRL-9903-00-Region 6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking a direct final action to approve portions of two 
revisions to the Texas State Implementation Plan (SIP) concerning the 
Permits for Specific Designated Facilities Program, also referred to as 
the FutureGen Program. EPA has determined that the portions of these 
SIP revisions specific to the FutureGen Program submitted on March 9, 
2006 and July 2, 2010, comply with the Clean Air Act and EPA 
regulations and are consistent with EPA policies. This action is being 
taken under section 110 and parts C and D of the Act.

DATES: This direct final rule is effective on January 21, 2014 without 
further notice, unless EPA receives relevant adverse comment by 
December 23, 2013. If EPA receives such comment, EPA will publish a 
timely withdrawal in

[[Page 69774]]

the Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2006-0593, by one of the following methods:
    (1) www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    (2) Email: Ms. Adina Wiley at [email protected].
    (3) Mail or Delivery: Ms. Adina Wiley, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2006-0593. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
through http://www.regulations.gov or email, if you believe that it is 
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means that EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment along with any disk or CD-ROM 
submitted. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters and any form of encryption and should be free of any 
defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment with 
the person listed in the FOR FURTHER INFORMATION CONTACT paragraph 
below or Mr. Bill Deese at 214-665-7253.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning 
today's direct final action, please contact Ms. Adina Wiley (6PD-R), 
Air Permits Section, Environmental Protection Agency, Region 6, 1445 
Ross Avenue (6PD-R), Suite 1200, Dallas, Texas 75202-2733, telephone 
(214) 665-2115; fax number (214) 665-6762; email address 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

    I. What action is EPA taking?
    II. What did Texas submit?
    III. EPA's Evaluation
    IV. Final Action
    V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is taking a direct final action to approve portions of two 
revisions to the Texas State Implementation Plan (SIP) concerning the 
Permits for Specific Designated Facilities Program, also referred to as 
the FutureGen Program. EPA has determined that the portions of these 
SIP revisions specific to the FutureGen Program submitted on March 9, 
2006 and July 2, 2010, comply with the Clean Air Act and EPA 
regulations and are consistent with EPA policies. This action is being 
taken under section 110 and parts C and D of the Act.
    We are publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no relevant adverse 
comments. As explained in this action and our accompanying technical 
support documents (TSD), we are finding this action noncontroversial 
because the FutureGen permitting and public notice provisions can no 
longer be used in Texas, but we are proceeding with a final action to 
fulfill our statutory obligations under the CAA. However, in the 
proposed rules section of this Federal Register publication, we are 
publishing a separate document that will serve as the proposal to 
approve the SIP revision if relevant adverse comments are received. 
This rule will be effective on January 21, 2014 without further notice 
unless we receive relevant adverse comment by December 23, 2013. If we 
receive relevant adverse comments, we will publish a timely withdrawal 
in the Federal Register informing the public that the rule will not 
take effect. We will address all public comments in a subsequent final 
rule based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
now. Please note that if we receive adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, we may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

II. What did Texas submit?

    FutureGen is a United States Department of Energy (DOE) program 
designed to promote the advancement and development of new 
technologies. FutureGen refers to a combination of technologies for 
carbon sequestration, carbon dioxide enhanced oil recovery, electric 
generation, and hydrogen production. FutureGen is a technology 
demonstration project that is a partnership between industry 
participants and the DOE.
    The 79th Texas Legislature passed House Bill 2201 (HB 2201) in 
2005, and concluded that the FutureGen technology demonstration project 
could result in major economic, social and environmental benefits for 
Texas. In order to help Texas compete for federal funding associated 
with the FutureGen Project, the Texas Legislature passed HB 2201 to 
provide for streamlined permitting by specifically exempting FutureGen 
projects from the contested case hearing process.

March 9, 2006 SIP Submittal

    Pursuant to the directive of Texas HB 2201, on February 22, 2006, 
the TCEQ adopted the new provisions to Chapter 116 to establish 
streamlined permitting procedures and rules for the FutureGen Project. 
At the same time, the TCEQ also adopted public participation provisions 
for the FutureGen Project to provide for the exemption from contested 
case hearing. These new provisions were submitted to EPA as a SIP 
revision on March 9, 2006 by the Chairman of the TCEQ, Ms. Kathleen 
Hartnett White, as Rule Project No. 2005-053-091-PR.

July 2, 2010 SIP Submittal

    The TCEQ subsequently adopted revisions to the public notice 
provisions for the entirety of the Texas Air Permit program on June 2, 
2010. The Chairman of the TCEQ, Mr. Bryan W. Shaw, Ph.D., submitted 
these revised public participation rules as a revision to the Texas SIP 
on July 2, 2010 as part of Rule

[[Page 69775]]

Project No. 2010-004-039-LS. On this date, the TCEQ also withdrew the 
previous public notice SIP submittals, including the FutureGen specific 
public notice provisions submitted on March 9, 2006. Therefore, the 
public notice provisions specific to the FutureGen Program that remain 
before EPA for action were submitted on July 2, 2010.
    The July 2, 2010 SIP submittal established the public participation 
provisions for the majority of the Texas air permitting programs, 
including applications for the FutureGen Program. On December 13, 2012, 
EPA proposed approval of most of the public participation rules 
submitted on July 2, 2010. See 77 FR 74129. However, in that proposed 
approval we severed and took no action on the portions of the public 
notice provisions establishing applicability and response to comment 
provisions specific to FutureGen Program applications at 30 TAC 
39.402(a)(10), 39.419(e)(3) and 39.420(h). We deferred action on these 
provisions until such time as we evaluated the underlying permit 
provisions for the FutureGen Program at 30 TAC Chapter 116, Subchapter 
L. See 77 FR 74129. EPA is addressing the July 2, 2010, submittal of 30 
TAC 39.402(a)(10), 39.419(e)(3) and 39.420(h) through today's direct 
final action.

III. EPA's Evaluation

    We provide our evaluation for this rulemaking in this section. 
Additional information to support our evaluation is available in the 
TSDs for this rulemaking, which are available in the rulemaking docket.
    Our evaluation shows that a FutureGen Project could be a PSD, NNSR 
or minor NSR source; therefore, we reviewed the program against the 
federal permitting and public notice requirements and the existing SIP-
approved provisions in Texas. The FutureGen permitting provisions 
require an applicant to demonstrate compliance with all requirements 
for PSD and NNSR permitting; which would require the FutureGen 
applicant to also comply with the public notice rules applicable to PSD 
and NNSR permitting.\1\ Additionally, the FutureGen permitting 
provisions require an applicant to demonstrate protection of public 
health and welfare by complying with the Texas Health and Safety Code 
and all applicable rules and regulations of the TCEQ. Accordingly, we 
find that the FutureGen Program permitting and public notice rules as 
submitted March 9, 2006 and July 2, 2010 are consistent with the 
requirements of the CAA and EPA's regulations, and protect the 
integrity of the Texas SIP.
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    \1\ EPA proposed approval of revised public notice rules for 
Texas air permitting on December 13, 2012. See 77 FR 74129.
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    Since the adoption of Texas HB 2201 and the adoption and submittal 
of the associated Texas SIP provisions, the FutureGen Project has been 
awarded to the State of Illinois. Additionally, the DOE decided to stop 
funding the FutureGen Project in 2008. On August 5, 2010, the DOE 
introduced FutureGen 2.0; a reinvention of the original FutureGen 
Project concept still planned for Illinois. Therefore, the submitted 
rules establishing the permitting and public notice rules for the 
FutureGen Project likely will not be used in Texas because the 
underlying FutureGen Project is not in existence in Texas.
    EPA, however, has a statutory obligation to review and act upon SIP 
submittals pursuant to CAA 110(k). Because the State of Texas submitted 
the regulatory provisions for the FutureGen Project for approval into 
the Texas SIP, and has not subsequently requested to withdraw the 
program from our consideration, we are required to take action even 
though the program is superfluous to the SIP. Our authority under CAA 
110(k)(4) does not provide us the ability to disapprove a program 
solely because it is no longer needed. Neither can we take steps to 
return the superfluous provisions to the state absent a direct request. 
Therefore, EPA must proceed with this proposed action to satisfy our 
obligations under the CAA.

IV. Final Action

    Under section 110 and parts C and D of the Act, and for the reasons 
stated above, EPA is taking direct final action to approve revisions to 
the Texas SIP submitted on March 9, 2006 and July 2, 2010 for the 
Permits for Specific Designated Facilities Program, or the FutureGen 
Project, as consistent with the CAA and EPA's policy and guidance. 
Specifically, EPA is approving the following new provisions 
establishing the FutureGen permitting requirements as submitted on 
March 9, 2006: 30 TAC 116.1400, 116.1402, 116.1404, 116.1406, 116.1408, 
116.1410, 116.1414, 116.1416, 116.1418, 116.1420, 116.1422, 116.1424, 
116.1426 and 116.1428. EPA is approving the new provisions establishing 
the FutureGen-specific public notice provisions at 30 TAC 
39.402(a)(10), 39.419(e)(3) and 39.420(h) as submitted on July 2, 2010.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small

[[Page 69776]]

Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action 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 21, 2014. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposed 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, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: November 1, 2013.

Ron Curry,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. In section 52.2270(c) the table titled ``EPA Approved Regulations in 
the Texas SIP'' is amended as follows:
0
a. Immediately following the entry for Section 19.14, by adding a new 
centered heading ``Chapter 39--Public Notice'' followed by a new 
centered heading ``Subchapter H--Applicability and General Provisions'' 
followed by new entries for Sections 39.402, 39.419, and 39.420; and
0
b. Under Chapter 116 (Reg 6)--Control of Air Pollution by Permits for 
New Construction or Modification, immediately following the entry for 
Section 116.931, by adding a new centered heading for ``Subchapter L--
Permits for Specific Designated Facilities'' followed by new entries 
for Sections 116.1400, 116.1402, 116.1404, 116.1406, 116.1408, 
116.1410, 116.1414, 116.1416, 116.1418, 116.1420, 116.1422, 116.1424, 
116.1426 and 116.1428.
    The additions 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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                            Chapter 39--Public Notice
                               Subchapter H--Applicability and General Provisions
----------------------------------------------------------------------------------------------------------------
Section 39.402...............  Applicability to       6/2/2010  11/21/2013 [Insert  SIP only includes
                                Air Quality                      FR page number      39.402(a)(10).
                                Permits and                      where document
                                Permit Amendments.               begins].
Section 39.419...............  Notice of              6/2/2010  11/21/2013 [Insert  SIP only includes
                                Application and                  FR page number      39.419(e)(3).
                                Preliminary                      where document
                                Determination.                   begins].
Section 39.420...............  Transmittal of the     6/2/2010  11/21/2013 [Insert  SIP only includes 39.420(h).
                                Executive                        FR page number
                                Director's                       where document
                                Response to                      begins].
                                Comments and
                                Decision.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                            Subchapter L--Permits for Specific Designated Facilities
----------------------------------------------------------------------------------------------------------------
Section 116.1400.............  Purpose...........    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1402.............  Applicability.....    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1404.............  Permit Required...    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1406.............  Compliance History    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1408.............  Definitions.......    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1410.............  Emissions Profile     2/22/2006  11/21/2013 [Insert  ............................
                                for FutureGen                    FR page number
                                Projects.                        where document
                                                                 begins].
Section 116.1414.............  Applications for      2/22/2006  11/21/2013 [Insert  ............................
                                Facilities that                  FR page number
                                are Components of                where document
                                a Designated                     begins].
                                Project.

[[Page 69777]]

 
Section 116.1416.............  Public Notice.....    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1418.............  Public                2/22/2006  11/21/2013 [Insert  ............................
                                Participation.                   FR page number
                                                                 where document
                                                                 begins].
Section 116.1420.............  Permit Fee........    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
Section 116.1422.............  General and           2/22/2006  11/21/2013 [Insert  ............................
                                Special                          FR page number
                                Conditions.                      where document
                                                                 begins].
Section 116.1424.............  Amendments and        2/22/2006  11/21/2013 [Insert  ............................
                                Alterations of                   FR page number
                                Permits Issued                   where document
                                Under This                       begins].
                                Subchapter.
Section 116.1426.............  Renewal of Permits    2/22/2006  11/21/2013 [Insert  ............................
                                Issued Under This                FR page number
                                Subchapter.                      where document
                                                                 begins].
Section 116.1428.............  Delegation........    2/22/2006  11/21/2013 [Insert  ............................
                                                                 FR page number
                                                                 where document
                                                                 begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2013-27991 Filed 11-20-13; 8:45 am]
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