[Federal Register Volume 79, Number 250 (Wednesday, December 31, 2014)]
[Proposed Rules]
[Pages 78752-78755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30717]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2013-0542; FRL-9921-09-Region 6]


Approval and Promulgation of Air Implementation Plans; Texas; 
Revisions to the New Source Review State Implementation Plan; Flexible 
Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Texas New Source Review (NSR) State 
Implementation Plan (SIP) submitted by the Texas Commission on 
Environmental Quality (TCEQ) on July 31, 2014. These revisions support 
this action to convert the approved conditional Flexible Permit Program 
(FPP) to a fully approved FPP. The EPA is proposing to find the TCEQ 
has satisfied all the elements of our July 14, 2014, final conditional 
approval, and as such, the FPP conditional approval is proposed for 
full approval with this action. Those commitments consisted of revising 
the rules to ensure they are properly structured. The EPA has 
determined that these SIP revisions comply with the Federal Clean Air 
Act (the Act or CAA) and are consistent with the EPA's regulations and 
policies. This action is being taken under section 110(k) of the Act.

DATES: Comments must be received on or before January 30, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2013-0542, by one of the following methods:
     http://www.regulations.gov. Follow the online instructions 
for submitting comments.
     Email: Ms. Stephanie Kordzi at [email protected].
     Mail or Delivery: Ms. Stephanie Kordzi, 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-
2013-0542. The 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 the 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 the 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, the 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 the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the 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 the 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 the 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: Ms. Stephanie Kordzi (6PD-R), Air 
Permits Section, Environmental Protection Agency, Region 6, 1445 Ross 
Avenue (6PD-R), Suite 1200, Dallas, TX 75202-2733. Telephone (214) 665-
7520, email at [email protected].

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

Table of Contents

I. Background
II. What action is the EPA taking?
III. What did Texas submit?
IV. What is the EPA's evaluation of this SIP revision?
V. What is the EPA's evaluation of the TCEQ's response to the FPP 
conditional approval?
    A. What is a conditional approval?
    B. What are the terms of the FPP conditional approval?
    C. Were the terms of the FPP conditional approval met?
VI. Proposed Action
VII. Statutory and Executive Order Reviews

I. Background

    On July 14, 2014, the EPA took final rulemaking action 
conditionally approving revisions to the Texas NSR SIP to establish the 
Texas Minor NSR Flexible Permits Program, submitted by the (TCEQ). The 
EPA's proposed conditional approval was published in 79 FR 8368, 
February 12, 2014. The

[[Page 78753]]

conditional approval was predicated on a commitment from TCEQ in a 
letter dated December 9, 2013, to adopt certain minor clarifications to 
the Flexible Permit Program by November 30, 2014. (97 FR 40666, July, 
14, 2014). On September 12, 2014, Environmental Integrity Project, et 
al., filed a Petition for Review challenging the EPA conditional 
approval of the FPP with the Fifth Circuit Court of Appeals. The Appeal 
is on-going as of the date of publication of this notice.

II. What action is the EPA taking?

    We are proposing to approve revisions to the Texas SIP submitted by 
the TCEQ on July 31, 2014. The FPP was conditionally approved by EPA on 
July 14, 2014. This action only addresses the minor changes the State 
has submitted to the conditionally approved FPP and converts the 
conditional to a full approval. The docket to this action contains the 
full FPP as revised and will replace the current conditional approved 
rules. The FPP is a minor NSR permit program which functions as an 
alternative to the traditional preconstruction permit program that is 
authorized in Title 30 of the Texas Administrative Code (30 TAC) 
Chapter 116, Subchapter G. The FPP is intended to eliminate the need 
for owners or operators of participating facilities to submit an 
amendment application each time certain types of operational or 
physical changes are made at a permitted facility. The revisions we are 
proposing to approve amend existing sections Sec. Sec.  116.13, 
116.710, 116.711, 116.715, 116.716, 116.717, 116.718, 116.721, and 
116.765. In addition, the commission resubmitted Sec. Sec.  116.720; 
116.740(a); and 116.750, from the October 21, 2013, submittal. The EPA 
is proposing to find that the TCEQ has satisfied all elements of our 
July 14, 2014, final conditional approval of the FPP with the submittal 
of the July 31, 2014, SIP submittal; and as such the FPP is proposed 
for full approval.

III. What did Texas submit?

    We are proposing to approve revisions to the Texas SIP submitted on 
July 31, 2014, specific to the Texas FPP. The revisions were adopted on 
July 2, 2014, and include certain changes to the rules for FPP in the 
30 TAC Chapter 116, Subchapter G. The rulemaking contains rules that 
are now properly structured within and according to the rulemaking 
requirements of the Texas Administrative Procedure Act and the Texas 
Administrative Code. The TCEQ committed to making these rule revisions 
in its commitment letter of December 9, 2013. This action was necessary 
because some of the rules were repealed and readopted in 1998, and from 
the 1999 to 2003 timeframe. The rulemaking would also repeal text of 
the rules adopted in 2010 which were not part of the submission by the 
Commission on September 24, 2013, with the exception of some selected 
citations agreed upon by both EPA and TCEQ. These rule changes ensure 
that all regulatory citations in the package are labeled and referenced 
correctly and placed in proper sequence. The TCEQ committed to 
providing a SIP submittal by November 30, 2014, that would reformat, 
reorganize and renumber the FPP into a cohesive rule to ensure the 
rules are properly structured within and according to the rulemaking 
requirements of the Texas Administrative Procedure Act and the Texas 
Administrative Code. With the submittal of this rule package, the EPA 
has determined that the commitment was met. The commitment letter is 
available in the docket for this rulemaking. All the necessary 
provisions of the FPP were included in the submission and the 
conditions address formatting and style requirements as specified by 
state law.
    A copy of the July 31, 2014, SIP submittal as well as our Technical 
Support Document (TSD) can be obtained from the Docket, as discussed in 
the ``Docket'' section above. A discussion of the specific Texas rule 
changes that we are approving is included in the TSD and summarized 
below.
    The existing SIP-approved version of Subchapter G was adopted by 
the TCEQ on September 24, 2013, and conditionally approved by the EPA 
on July 14, 2014 (see 79 FR 40666). The revisions adopted by the TCEQ 
on July 2, 2014, amend the rules to fulfill the commitment necessary so 
that the EPA can grant full approval of the Commission's SIP revision 
for the FPP. The amendments cover revisions to 30 TAC Sections 116.13, 
116.710, 116.711(1), (2)(A), (B) and (C)(i) and (ii), (D)-(J), and (L)-
(N); 116.715(a)-(e) and (f)(1) and (2)(B); 116.716; 116.717; 116.718; 
116.721; and 116.765 as revisions to the SIP. In addition, the 
commission is submitting amended 116.720, 116.740(a), and 116.750 as 
adopted on December 14, 2010. All of these rule amendments are 
submitted to fulfill the condition for EPA SIP-approval of the 
Commission's SIP revision for the FPP adopted by the Commission on 
September 24, 2013, and minor NSR FPP.

IV. What is the EPA's evaluation of this SIP revision?

    The Act at Section 110(a)(2)(C) requires states to develop and 
submit to the EPA for approval into the state SIP, preconstruction 
review programs applicable to new and modified stationary sources of 
air pollutants for attainment and nonattainment areas that cover both 
major and minor new sources and modifications, collectively referred to 
as the New Source Review (NSR) SIP. The CAA NSR SIP program is composed 
of three separate programs: Prevention of Significant Deterioration 
(PSD), Nonattainment New Source Review (NNSR), and Minor NSR. PSD is 
established in part C of title I of the CAA and applies in areas that 
meet the National Ambient Air Quality Standards (NAAQS), i.e., 
``attainment areas'', as well as areas where there is insufficient 
information to determine if the area meets the NAAQS, i.e., 
``unclassifiable areas.'' The NNSR SIP program is established in part D 
of title I of the CAA and applies in areas that are not in attainment 
of the NAAQS, i.e., ``nonattainment areas.'' The Minor NSR SIP program 
addresses construction or modification activities that do not emit, or 
have the potential to emit, more than certain major source thresholds 
and thus do not qualify as ``major''.
    The EPA regulations governing the criteria that states must satisfy 
for the EPA approval of the NSR programs as part of the SIP are 
contained in 40 CFR Sections 51.160-51.166. Regulations covering minor 
NSR programs are contained in 40 CFR Section 51.160-51.164. In 
addition, there are several provisions in 40 CFR part 51 that apply 
generally to all SIP revisions. The TCEQ has developed the FPP as a 
component of the Texas Minor NSR program; therefore, we evaluated the 
revisions to the approved Texas FPP as submitted in July 31, 2014, and 
the December 9, 2013, commitment letter against the federal 
requirements for minor NSR programs.
    The EPA has preliminarily determined that the July 31, 2014, 
revisions to Chapter 116, Subchapter G, are approvable. The July 2, 
2014, revisions to 30 TAC Sections 116.13, 116.710, 116.711(1), (2)(A), 
(B) and (C)(i) and (ii), (D)-(J), and (L)-(N); 116.715(a)-(e) and 
(f)(1) and (2)(B); 116.716; 116.717; 116.718; 116.721; and 116.765 were 
revised to ensure that the amended rules are properly structured and 
consistent with the actions taken by the Commission and the rulemaking 
requirements of the Texas Administrative Procedure Act. Please see 
section V of this notice for a

[[Page 78754]]

discussion of how the TCEQ has addressed the elements of the FPP 
conditional approval and the December 9, 2013, commitment letter. The 
EPA believes the commitment to restructure the rules without removing 
the content or its intent was followed. Therefore, the EPA is now 
publishing in the Federal Register a proposal that converts the 
conditional approval of the FPP to a full approval.

V. What is the EPA's evaluation of the TCEQ's response to the FPP 
conditional approval?

A. What is a conditional approval?

    Under section 110(k)(4) of the Clean Air Act, the EPA may 
conditionally approve a plan based on a commitment from the State to 
adopt specific enforceable measures within one year from the date of 
approval. The conditional approval remains in effect until the EPA 
takes its final action--either a final approval or disapproval.
    If the EPA determines that the revised rule is approvable, the EPA 
will propose approval of the rule through a notice and comment 
rulemaking. After responding to comments received, the EPA will publish 
a final approval of the rule and the conditional approval is no longer 
in effect. However, if the State fails to meet its commitment by the 
date specified within the one year period, then the EPA must proceed 
with a disapproval action. The EPA will propose disapproval of the rule 
through notice and comment rulemaking, and will finalize the 
disapproval after responding to all comments received. Note that the 
EPA will conditionally approve a certain rule only once. Subsequent 
submittals of the same rule that attempt to correct the same 
specifically identified problems will not be eligible for conditional 
approval.

B. What are the terms of the Texas FPP conditional approval?

    The EPA conditionally approved the Texas FPP on July 14, 2014. Our 
conditional approval was based on a commitment letter submitted by the 
TCEQ on December 9, 2013. The December 9, 2013, commitment letter 
included a provision that the TCEQ agreed to address by November 30, 
2014. Specifically, the TCEQ would propose and adopt rule amendments 
ensuring that the rules are properly structured within and according to 
the rulemaking requirements of the Texas Administrative Procedure Act 
and the Texas Administrative Code.

C. Were the terms of the FPP conditional approval met?

    The TCEQ adopted the appropriate FPP citations of 30 TAC Section 
116 and submitted the revised rules as a SIP revision within the 
specified time frame. The EPA analyzed each FPP element of the revised 
rules submitted in response to the December 9, 2013, commitment letter. 
All regulatory components discussed and agreed upon between the EPA and 
TCEQ were included in the SIP submittal package. Therefore, the EPA has 
determined that TCEQ met the commitment of the conditional approval.

VI. Proposed Action

    For the reasons presented above and in our accompanying TSD, the 
EPA is proposing to approve the following revisions to the Texas FPP 
submitted on July 31, 2014, as a minor NSR permit program in accordance 
with the CAA Section 110. The revisions to the Texas SIP were submitted 
on July 31, 2014, and the amendments are identified below:
     Revisions to 30 TAC Section 116.13--Flexible Permit 
Definitions.
     Revisions to 30 TAC Section 116.710--Applicability.
     Revisions to 30 TAC Section 116.711(1), (2)(A), (B) and 
(C)(i) and (ii), (D)-(J), and (L)-(N)--Flexible Permit Application.
     Revisions to 30 TAC Section 116.715(a)-(e) and (f)(1) and 
(2)(B)--General and Special Conditions.
     Revisions to 30 TAC Section 116.716--Emission Caps and 
Individual Emission Limitations.
     Revisions to 30 TAC Section 116.717--Implementation 
Schedule for Additional Controls.
     Revisions to 30 TAC Section 116.718--Significant Emission 
Increase.
     Revisions to 30 TAC Section 116.720--Limitation of 
Physical and Operational Changes.
     Revisions to 30 TAC Section 116.721--Amendments and 
Alterations.
     Revisions to 30 TAC Section 116.740--Public Notice.
     Revisions to 30 TAC Section 116.750--Flexible Permit Fee.
     Revisions to 30 TAC Section 116.765--Compliance Schedule.
    The EPA invites the public to make comments on our proposal to 
approve the July 31, 2014, Texas SIP revision and to convert our 
conditional approval of the Texas FPP to a full approval. We also are 
proposing to find that Texas has met its December 9, 2013, commitment 
to submit the SIP revision in a timely manner in advance of the 
November 30, 2014, deadline.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. See, 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve 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 CAA; and
     Does not provide the 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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000), nor will it impose substantial

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direct costs on tribal governments or preempt tribal law.''

List of Subjects in 40 CFR Part 52

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

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

    Dated: December 16, 2014.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2014-30717 Filed 12-30-14; 8:45 am]
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