2010-28013. Approval and Promulgation of State Implementation Plans; Texas; Revisions to Chapters 39, 55, and 116 Which Relate to Public Participation on Permits for New and Modified Sources; Withdrawal of Proposed Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Withdrawal of proposed rule.

SUMMARY:

EPA is withdrawing our proposed limited approval and limited disapproval of revisions to the Texas state implementation plan (SIP), which relate to public participation for air permits for new and modified sources, because the subject SIP revisions are no longer before us for review. On November 26, 2008 (73 FR 72003) EPA proposed limited approval and limited disapproval. In response to our proposed limited approval and limited disapproval, the Texas Commission on Environmental Quality (TCEQ or the Commission) adopted new regulations governing public participation for air permits and submitted these regulations to EPA as revisions to the SIP in a letter dated July 2, 2010. Also at this time, TCEQ withdrew from consideration the previously submitted revisions to the Texas SIP concerning public participation for air permits that were the subject of our November 26, 2008, proposed limited approval and limited disapproval. Consequently, the State's July 2, 2010 action also withdraws from EPA's review the public participation component of the May 21, 2009, Settlement Agreement (as modified on February 12, 2010) between EPA and the BCCA Appeal Group, Texas Association of Business, and Texas Oil and Gas Association (Settlement Agreement).

DATES:

The proposed rule published November 26, 2008 (73 FR 72003) is withdrawn as of November 5, 2010.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2007-TX-0209. All documents in the docket are listed on the http://www.regulations.gov web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air Permitting Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15-cent per page fee for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT:

Adina Wiley, Air Permitting Section (6PD-R), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

EPA is withdrawing our November 26, 2008 proposed limited approval and limited disapproval of revisions to the Texas SIP regarding public participation for air permits of new and modified sources. Texas withdrew the component titled “Public Participation Chapter 39, 55 (Rule Project No. 88030-039-AD and 99030-039-AD) (submittal of 12/15/95, as modified 7/22/98, and 10/25/99)” in the Settlement Agreement. As a result of the State's withdrawal, these pending submissions are no longer before EPA for review. As discussed further below, Texas' withdrawal of the component on July 2, 2010 left before EPA three minor subsections: 30 Texas Administrative Code (TAC) sections 39.411(a); 55.152(b); and 39.418(b)(3). Texas also submitted newly revised versions of the public participation provisions in Chapters 39 and 55 to EPA. The State's intent was to include the three minor subsections noted above that were not withdrawn as part of the July 2010 submission. Accordingly, consistent with that intent, EPA will evaluate those three subsections as a part of the newly adopted public participation regulations submitted by Texas on July 2, 2010, pursuant to section 110(k) of the Clean Air Act (CAA).

Our proposed action on November 26, 2008 (73 FR 72003) encompassed revisions submitted by the TCEQ on December 15, 1995; July 22, 1998; and on October 25, 1999. These SIP packages included the following rules:

• The December 15, 1995, submittal includes Texas' submittal of TAC, Title 30, Chapter 116, Subchapter D, section 116.312—Public Notification and Comment Procedures.
• The July 22, 1998, submittal includes Texas' submittal of repeal and readoption (with nonsubstantive revisions) of 30 TAC section 116.312—Public Notification and Comment Procedures.
• The October 25, 1999, submittal includes the following revisions related to this action.

○ New rules affecting 30 TAC Chapter 39—Public Notice—are as follows: Section 39.201—Application for a Preconstruction Permit; section 39.401—Purpose; section 39.403—Applicability; section 39.405—General Notice provisions; section 39.409—Deadline for Public Comment, Requests for Reconsideration, Contested Case Hearing, or Notice and Comment hearing; section 39.411—Text of Public Notice; section 39.413—Mailed Notice; section 39.418—Notice of Receipt of Application and Intent to Obtain Permit; section 39.419—Notice of Application and Preliminary Determination; section 39.420—Transmittal of the Executive Director's Response to Comments and Decision; section 39.423—Notice of Contested Case Hearing; section 39.601—Applicability; section 39.602—Mailed Notice; section 39.603—Newspaper Notice; section 39.604—Sign-Posting; section 39.605—Notice to Affected Agencies.

○ New rules affecting 30 TAC Chapter 55—Requests for Reconsideration and Contested Case Hearing—are as follows: Section 55.1—Applicability; section 55.21 Requests for Contested Case Hearing, Public Comment; section 55.101—Applicability; section 55.103—Definitions; section 55.150—Applicability; section 55.152—Public Comment Period; section 55.154—Public Meetings; section 55.156—Public Comment Processing; section 55.200—Applicability; section 55.201—Requests for Reconsideration and Contested Case Hearing; section 55.203—Determination of Affected Person; section 55.205—Request by Group or Association; section 55.209—Processing Requests for Reconsideration or Contested Case Hearing; and section 55.211—Commission Action or Requests for Reconsideration and Contested Case Hearing.

○ Rule revisions affecting 30 TAC Chapter 116—Control of Air Pollution by Permits for New Construction and Modification are as follows: Section 116.111—General Application; section 116.114—Application Review Schedule; section 116.116—Changes to Facilities; section 116.183—Public Notice Requirements; section 116.312—Public Notification and Comment Procedures; and section 116.740—Public Notice.

○ Repeal of 30 TAC section 116.124—Public Notice of Compliance History.

On June 2, 2010, the TCEQ adopted amendments to 30 TAC Chapter 39, Public Notice; Chapter 55, Requests for Reconsideration and Contested Case Hearings; Public Comment; Chapter 60, Compliance History; and Chapter 116, Control of Air Pollution by Permits for New Construction or Modification; and corresponding revisions to the Texas SIP. On July 2, 2010, the TCEQ submitted these new and amended sections regarding public participation to EPA as SIP revisions. At that time, TCEQ also adopted the withdrawal from consideration by EPA for revisions to the Texas SIP that were previously submitted to EPA as revisions to the SIP on October 25, 1999; July 31, 2002; and March 9, 2006. The sections submitted to EPA in 1999 were 30 TAC sections 39.201; 39.401; 39.403(a) and (b)(8)-(10); 39.405(f)(1) and (g); 39.409; 39.411(a), (b)(1)-(6) and (8)-(10) and (c)(1)-(6) and (d); 39.413(9), (11), (12) and (14); 39.418(a) and (b)(3) and (4); 39.419(a), (b), (d), and (e); 39.420(a), (b), and (c)(3) and (4); 39.423(a) and (b); 39.601; 39.602; 39.603; 39.604; and 39.605. The sections submitted to EPA in 2002 were new 30 TAC section 39.404, and amended sections 39.411, 39.419, 39.420, 39.603, 39.604 and 39.606. The sections submitted to EPA in 2005 were amended 30 TAC sections 39.403(b)(8)-(10) and new (f); 39.411(a), (b)(1)-(6), (8)-(10), (c)(1)-(6) and (d); 39.419(a), (b), (d) and (e); and 39.420(a), (b) and (c)(3) and (4). In 2005, the TCEQ also submitted the repeal of 30 TAC section 39.404 and the adoption of new section 39.404, and the withdrawal of sections 39.411, 39.419, and 39.420 as submitted to EPA in 2002. At that time the TCEQ also adopted the withdrawal of the following rules which were submitted as SIP revisions on October 25, 1999: 30 TAC sections 55.1; 55.21(a)-(d), (e)(2), (3) and (12), (f) and (g); 55.101(a), (b), (c)(6)-(8); 55.103; 55.150; 55.152(a)(1), (2) and (5); 55.154; 55.156; 55.200; 55.201(a)-(h); 55.203; 55.205; 55.209; and 55.211. Therefore, on July 2, 2010, the TCEQ withdrew from EPA's consideration as revisions to the SIP all of the rules specified previously in this paragraph, except for three subsections: 30 TAC sections 39.411(a) and 55.152(b) as adopted in 1999, and currently amended 30 TAC section 39.418(b)(3), submitted to EPA in 1999 as section 39.418(b)(4). As explained below, EPA concludes that it is TCEQ's intent for EPA to consider the three subsections as part of the new package that TCEQ submitted to EPA on July 2, 2010.

Withdrawal of EPA's Proposed Action on Chapter 39 and Chapter 55

In this notice, EPA is withdrawing our proposed limited approval and limited disapproval of 30 TAC sections 39.201, 39.401, 39.403, 39.405, 39.409, 39.411, 39.413, 39.418, 39.419, 39.420, 39.423, 39.601-39.605, 55.1, 55.21, 55.101, 55.103, 55.150, 55.152, 55.154, 55.156, 55.200, 55.201, 55.203, 55.205, 55.209, and 55.211. While we are withdrawing our proposed limited approval and limited disapproval of subsections 30 TAC sections 39.411(a), 39.418(b)(4), and 55.152(b) as well, we are not taking any further action at this time on these three subsections that the State did not withdraw for the reasons discussed below.

First, TCEQ originally intended to withdraw these three subsections when it withdrew the rest of the 30 TAC Chapter 39 and 55 subsections pertaining to public participation for new and modified sources and resubmit them as part of the new July 2010 submission. Their intent is demonstrated by the fact that TCEQ proposed to withdraw these three subsections from EPA consideration along with all the other withdrawn rules. At the time of the Commission's adoption, however, TCEQ did not withdraw these three subsections because it discovered that these three subsections were inadvertently not included in the notice proposing the new public participation rules for the SIP. As such, a final withdrawal of these three subsections would have left unintended gaps in the July 2010 submission. This administrative error can be tracked through the State proposal and adoption notices, and is noted in the Commission's adoption order and transmittal letter to EPA. See, e.g., discussion in the “Prior SIP Submissions” section of the rule adoption preamble, at page 5198 in the June 18, 2010 edition of the Texas Register.^[1] Thus, although TCEQ intended to fully withdraw these three subsections with the other pre-2010 submissions and resubmit them as part of the July 2010 submissions, TCEQ's failure to include these subsections with the proposed rule revisions precluded them from reaching that goal. TCEQ achieved the intended result by not withdrawing these three subsections, and thereby preserving them for EPA's review with the July 2010 submissions. The end result of this is to present EPA with a complete set of integrated provisions upon which to act.

Second, the three unwithdrawn subsections, in the absence of the withdrawn provisions, lack the substance that they had in the context of the full submission.

• Section 30 TAC 39.411 contains the requirements for the “Text of Public Notice.” The unwithdrawn subsection from this section, in 30 TAC 39.411(a), states that “Applicants shall use notice text provided and approved by the agency. The executive director may approve changes to notice text before notice being given.” But, the applicable requirements for notice text (contained in subsections 30 TAC 39.411(b)(1)-(6) ^[2] and (8)-(10) and (c)(1)-(6) and (d)) were all withdrawn from EPA's consideration on July 2, 2010. As a result, 30 TAC 39.411(a) lacks the substance that it had in the context of the provisions stating the applicable requirements for the notice text.

• Subsection 30 TAC 39.418(b)(4) provides a 30-day deadline for providing notice of certain “applicable information,” stating: “Not later than 30 days after the executive director declares an application administratively complete: The notice must include the applicable information required by section 39.411(b) of this title (relating to Text of Public Notice).” But, TCEQ withdrew the rest of 30 TAC 39.418 and the cross-referenced 30 TAC 39.411(b) from EPA's consideration on July 2, 2010. Thus, 30 TAC 39.418(b) lacks the substance that it had in the context of the provisions identifying the “applicable information” and the other parts of 30 TAC 39.418.
• Subsection 30 TAC 55.152(b) states that: “The public comment period shall automatically be extended to the close of any public meeting.” But, in July 2010, TCEQ withdrew the provisions for “Public Meetings” when it withdrew 30 TAC 55.154 and the provisions for “Public Comment Period” when it withdrew 30 TAC 55.152. Thus, 30 TAC 55.152(b) lacks the substance that it had in the context of these withdrawn provisions.

Third, these three subsections are integral parts of the newly submitted public participation rules. (see the Texas SIP submittal dated July 2, 2010). The July 2010 submissions contain the provisions that give substance and context to these three subsections. Further, these three subsections fit numerically into the July 2010 submissions to form an integrated set of provisions.

• Section 30 TAC 39.411 contains the requirements for the “Text of Public Notice.” The unwithdrawn subsection from this section, in 30 TAC 39.411(a), states that “Applicants shall use notice text provided and approved by the agency. The executive director may approve changes to notice text before notice being given.” The applicable requirements for notice text (contained in subsections 30 TAC 39.411(b)(1)-(6) and (8)-(10) and (c)(1)-(6) and (d)) is included in the July 2010 submission. As a result, newly submitted 39.411(b) provides the context and meaning for unwithdrawn 30 TAC 39.411(a).
• Currently amended subsection 39.418(b)(3), submitted to EPA in 1999 as subsection 39.418(b)(4) ^[3] provides a 30-day deadline for providing notice of certain “applicable information,” stating: “Not later than 30 days after the executive director declares an application administratively complete: The notice must include the applicable information required by section 39.411(b) of this title (relating to Text of Public Notice).” The remainder of 30 TAC 39.418 and the cross-referenced 30 TAC 39.411(b) are also contained in the July 2010 submission. Thus, the provisions identifying the “applicable information” and the other parts of 30 TAC 39.418 give meaning to the language in the unwithdrawn subsection.

• Subsection 30 TAC 55.152(b) states that: “The public comment period shall automatically be extended to the close of any public meeting.” TCEQ included the provisions for “Public Comment Period” and “Public Meetings” in the July 2010 submission at 30 TAC 55.152 and 30 TAC 55.154, respectively. Subsection 30 TAC 55.152(b) must be read in conjunction with these provisions to be meaningful.

For all of the reasons discussed above, the submission relating to public participation on which EPA had an obligation, under the Settlement Agreement, to take action is no longer before us. Instead, the effect of the July 2010 submissions and withdrawals is to create a new submission, as of July 2, 2010, which combines the three unwithdrawn provisions with the July 2010 submissions and creates a single integrated submission that must subsequently be reviewed as provided under section 110(k) of the CAA. Thus, EPA will evaluate these three subsections, 30 TAC sections 39.411(a), 55.152(b) and 39.418(b)(3), when we evaluate, pursuant to section 110(k) of the CAA, the newly adopted public participation regulations submitted by Texas on July 2, 2010.

Withdrawal of EPA's Proposed Action on Chapter 116

EPA is also withdrawing our proposed limited approval and limited disapproval of the revisions to 30 TAC Chapter 116 submitted on December 15, 1995; July 22, 1998; and October 25, 1999. The 30 TAC Chapter 116 submissions are not a component of the Settlement Agreement, and while TCEQ withdrew the previously-noted sections of Chapters 39 and 55, TCEQ has not withdrawn these Chapter 116 submissions. Specifically, EPA is withdrawing our proposed limited approval and limited disapproval of 30 TAC section 116.312 as submitted by TCEQ on December 15, 1995. The TCEQ repealed and replaced this section with new section 116.312 on July 22, 1998. Therefore, EPA finds that the December 15, 1995 submittal of 30 TAC 116.312 is moot. The TCEQ submitted new section 116.312 on July 22, 1998 and amendments to this section on October 25, 1999. The TCEQ also submitted amendments to 30 TAC sections 116.111, 116.114, and 116.116 on October 25, 1999. Because these sections all cross-reference and rely on the Chapter 39 public participation provisions that have been withdrawn and replaced with the July 2, 2010, SIP submittal, EPA will also consider these revisions in the context of the July 2, 2010, Chapter 39 public participation SIP submittal. Therefore, we are withdrawing our proposed limited approval and limited disapproval and will evaluate the July 22, 1998 and October 25, 1999, revisions to 30 TAC section 116.312 and the October 25, 1999, revisions to 30 TAC sections 116.111, 116.114, and 116.116 when we evaluate, pursuant to section 110(k) of the CAA, the newly adopted public participation regulations submitted by Texas on July 2, 2010. EPA is also withdrawing our proposed limited approval and limited approval of the October 25, 1999, revisions to 30 TAC section 116.183. However, because this section provides public notice requirements for hazardous air pollutants subject to section 112(g) of the CAA, we find that no further action is necessary on the revisions to this section because 112(g) requirements are not part of the SIP. EPA is also withdrawing our proposed limited approval and limited disapproval of the October 25, 1999, revisions to 30 TAC section 116.740 because EPA fully disapproved this revision in our July 15, 2010, disapproval of the Texas Flexible Permits Program (see 75 FR 41312). Note that even though EPA proposed limited approval and limited disapproval of 30 TAC sections 116.111, 116.114, 116.116, and 116.312 at the same that we proposed limited approval and limited disapproval of the remainder of the Texas Public Participation provisions, the timing of action on these Chapter 116 provisions is not governed by the Settlement Agreement. Therefore, our withdrawal today of the proposed limited approval and limited disapproval of 30 TAC sections 116.111, 116.114, 116.116, and 116.312 does not impact in any way EPA's obligations or actions under the Settlement Agreement.

List of Subjects in 40 CFR Part 52

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

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

Dated: October 29, 2010.

Al Armendariz,

Regional Administrator, Region 6.

Footnotes

1.  See also the e-mail from Janis Hudson of TCEQ to Lucinda Watson of Region 6 EPA dated September 28, 2010, explaining this situation, available in the e-docket for this rulemaking.

2.  Note that TCEQ never submitted subsection 30 TAC 39.411(b)(7) as SIP revisions because it contains a State-only requirement under Texas' Coastal Management Program.

3.  Note that the July 2010 submission deletes the previous 30 TAC 39.418(b)(3) and simply re-numbers 30 TAC 39.418(b)(4) as 30 TAC 39.418(b)(3).