69884 Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations 

attaining the 1997 PM2.5 National 

Ambient Air Quality Standard (62 FR 

38652, July 18, 1997). New York State’s 

submittal included motor vehicle 

emissions budgets (‘‘budgets’’) for 2009 

for use by the State’s metropolitan 

planning organizations in making 

transportation conformity 

determinations. On January 19, 2010, 

EPA posted the availability of the 

budgets on our Web site for the purpose 

of soliciting public comments. The 

comment period closed on February 18, 

2010, and we received no comments. 

Today’s notice is simply an 

announcement of a finding that we have 

already made. EPA Region 2 sent a letter 

to New York State on October 15, 2010, 

stating that the 2009 motor vehicle 

emissions budgets in New York’s SIP for 

the New York portion of the New YorkNorthern New Jersey-Long Island, NY– 

NJ–CT PM2.5 nonattainment area are 

adequate because they are consistent 

with the required attainment 

demonstration. 

Transportation conformity is required 

by section 176(c) of the Clean Air Act. 

EPA’s conformity rule requires that 

transportation plans, programs, and 

projects conform to SIPs and establishes 

the criteria and procedures for 

determining whether or not they 

conform. Conformity to a SIP means that 

transportation activities will not 

produce new air quality violations, 

worsen existing violations, or delay 

timely attainment of the National 

Ambient Air Quality Standards. 

The criteria by which we determine 

whether a SIP’s motor vehicle emission 

budgets are adequate for conformity 

purposes are outlined in 40 CFR 

93.118(e)(4). Please note that an 

adequacy review is separate from EPA’s 

completeness review, and it also should 

not be used to prejudge EPA’s ultimate 

approval of the SIP. Even if we find a 

budget adequate, the SIP could later be 

disapproved. 

We have described our process for 

determining the adequacy of submitted 

SIP budgets in 40 CFR 93.118(f). We 

have followed this rule in making our 

adequacy determination. The motor 

vehicle emissions budgets being found 

adequate today are listed in Table 1. 

EPA’s finding will also be announced 

on EPA’s conformity Web site: http://

www.epa.gov/otaq/stateresources/

transconf/adequacy.htm. 

TABLE 1—2009 ATTAINMENT PM2.5

MOTOR VEHICLE EMISSIONS BUDGETS FOR NEW YORK

[Tons per year] 

Metropolitan Planning 

Organization PM2.5 NOX

NYMTC (excluding Putnam County) and OCTC 1,750 77,571 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and record keeping 

requirements. 

Authority: 42 U.S.C. 7401–7671q. 

Dated: October 29, 2010. 

Judith A. Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2010–28658 Filed 11–15–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0012; FRL–9226– 

2] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Emissions Banking and Trading of 

Allowances Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking a direct final 

action to approve portions of four 

revisions to the Texas State 

Implementation Plan (SIP) that create 

and amend the Emissions Banking and 

Trading of Allowances (EBTA) Program. 

The EBTA Program establishes a cap 

and trade program to reduce emissions 

of oxides of nitrogen (NOX) and sulfur 

dioxide (SO2) from participating electric 

generating facilities. The Texas 

Commission on Environmental Quality 

(TCEQ) originally submitted the EBTA 

program to EPA as a SIP revision on 

January 3, 2000. Since that time, the 

TCEQ has submitted SIP revisions for 

the EBTA Program on September 11, 

2000; July 15, 2002; and October 24, 

2006. EPA has determined that these 

changes to the Texas SIP comply with 

the Federal Clean Air Act (the Act or 

CAA) and EPA regulations, are 

consistent with EPA policies, and will 

improve air quality. 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 18, 2011 without further 

notice, unless EPA receives relevant 

adverse comment by December 16, 

2010. If EPA receives such comment, 

EPA will publish a timely withdrawal in 

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–2005–TX–0012, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• E-mail: Mr. Jeff Robinson at 

robinson.jeffrey@epa.gov. Please also cc 

the person listed in the FOR FURTHER

INFORMATION CONTACT paragraph below. 

• U.S. EPA Region 6 ‘‘Contact Us’’ 

Web site: http://epa.gov/region6/

r6coment.htm. Please click on ‘‘6PD’’ 

(Multimedia) and select ‘‘Air’’ before 

submitting comments. 

• Fax: Mr. Jeff Robinson, Chief, Air 

Permits Section (6PD–R), at fax number 

214–665–6762. 

• Mail: Mr. Jeff Robinson, Chief, Air 

Permits Section (6PD–R), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

• Hand or Courier Delivery: Mr. Jeff 

Robinson, Chief, Air Permits Section 

(6PD–R), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. Such 

deliveries are accepted only between the 

hours of 8:30 a.m. and 4:30 p.m. 

weekdays except for legal holidays. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2005– 

TX–0012. 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 e-mail, if you believe 

that it is CBI or otherwise protected 

from disclosure. The http://www.

regulations.gov website 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 e-mail 

comment directly to EPA without going 

through http://www.regulations.gov, 

your e-mail address will be 

automatically captured and included as 


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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: All documents in the docket 

are listed in the http://www.regulations.

gov index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

the disclosure of which is restricted by 

statute. Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http://www.

regulations.gov or in hard copy at the 

Air Permits 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. A 15 cent 

per page fee will be charged for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area on the seventh 

floor at 1445 Ross Avenue, Suite 700, 

Dallas, Texas. 

The State submittal related to this SIP 

revision, and which is part of the EPA 

docket, is also available for public 

inspection at the State Air Agency listed 

below during official business hours by 

appointment: 

Texas Commission on Environmental 

Quality, Office of Air Quality, 12124 

Park 35 Circle, Austin, Texas 78753. 

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, TX 75202– 

2733. The telephone number is (214) 

665–2115. Ms. Wiley can also be 

reached via electronic mail at 

wiley.adina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, wherever 

any reference to ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is 

used, we mean EPA. 

Table of Contents 

I. What action is EPA taking? 

II. What did Texas submit? 

III. What is the Emissions Banking and 

Trading of Allowances Program? 

IV. What is EPA’s evaluation of the 

Emissions Banking and Trading of 

Allowances Program? 

V. Final Action 

VI. Statutory and Executive Order Reviews 

I. What Action is EPA Taking? 

We are taking direct final action to 

approve portions of four revisions to the 

Texas SIP submitted by the Texas 

Commission on Environmental Quality 

(TCEQ) on January 3, 2000; September 

11, 2000; July 15, 2002; and October 24, 

2006. These four revisions create and 

amend the Emissions Banking and 

Trading of Allowances Program at 30 

Texas Administrative Code (TAC) 

Chapter 101, Subchapter H, Division 2. 

Specifically, we are approving through 

direct final action the adoption of 30 

TAC sections 101.330–101.336, 

submitted on January 3, 2000; the 

revisions to 30 TAC section 101.333 

submitted on September 11, 2000; the 

adoption of new 30 TAC section 

101.338 submitted on July 15, 2002; and 

the revisions to 30 TAC section 101.338 

and the adoption of new 30 TAC section 

101.339 submitted on October 24, 2006. 

Our analysis as presented in this 

rulemaking action and the 

accompanying Technical Support 

Document finds these revisions to the 

Texas SIP to be consistent with the 

CAA, 40 CFR Part 51, and EPA’s 

Economic Incentive Program Guidance, 

‘‘Improving Air Quality with Economic 

Incentive Programs’’ (EPA–452/R–01– 

001, January 2001). 

EPA’s direct final approval of the 

EBTA program does not extend to the 

portions of the 4 SIP revisions that are 

not related to the EBTA program. 

Section II of this rulemaking action, 

titled ‘‘What Did Texas Submit?’’ further 

explains the state’s SIP submittals and 

EPA’s actions on the non-EBTA program 

provisions. 

We are publishing this rule without 

prior proposal because we view this as 

a noncontroversial amendment and 

anticipate no relevant adverse 

comments. 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 direct final rule will be effective on 

January 18, 2011 without further notice 

unless we receive relevant adverse 

comment by December 16, 2010. 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? 

The TCEQ has submitted four SIP 

revisions concerning the EBTA Program. 

Below is an itemized listing of each of 

these submittals which details all 

sections submitted for EPA review and 

any rulemaking actions taken to date on 

these submissions. 

January 3, 2000 

• On December 16, 1999, the Texas 

Natural Resource Conservation 

Commission (TNRCC) (the predecessor 

agency to the TCEQ) adopted new 

provisions establishing the EBTA 

program, pursuant to Senate Bill 7, 76th 

Legislature, 1999 (SB 7). These new 

provisions created 30 TAC Chapter 101, 

Subchapter H, Division 2, Sections 

101.330–101.337. Governor George W. 

Bush submitted these provisions as a 

SIP revision in a letter dated January 3, 

2000, for rule log number 99033–116– 

AI. 

• On December 16, 1999, TNRCC also 

adopted new provisions at 30 TAC 

Chapter 116, Sections 116.18, 116.910– 

116.914, 116.916, 116.920–116.922, 

116.930, and 116.931 concerning the 

permitting of grandfathered electric 

generating facilities, also pursuant to 

Senate Bill 7. These provisions were 

also submitted to EPA on January 3, 

2000, as part of rule project number 

99033–116–AI. 

• EPA is taking separate action on the 

provisions for the permitting of 

grandfathered electric generating 

facilities at 30 TAC Chapter 116, 

Sections 116.18, 116.910–116.914, 

116.916, 116.920–116.922, 116.930, and 


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1A grandfathered facility is defined as a facility 

that is not a new facility, was constructed prior to 

August 30, 1971 (or no construction contract was 

executed on or before August 30, 1971 that 

specified a beginning construction date on or before 

February 29, 1972) and has not been modified since 

August 30, 1971. EPA SIP-approved this definition 

on April 14, 2010, see 75 FR 19468. 

116.931.1 See 75 FR 64235, October 19, 

2010 at docket EPA–R06–OAR–2005– 

TX–0031. 

September 11, 2000 

• On August 9, 2000, the TNRCC 

adopted amendments to the EBTA 

program at 30 TAC Chapter 101, 

Subchapter H, Division 2, Section 

101.333. Governor George W. Bush 

submitted these amendments as a SIP 

revision in a letter dated September 11, 

2000, for rule log number 1999–029B– 

116–AI. 

• On August 9, 2000, TNRCC also 

adopted amendments to 30 TAC 

Chapter 101, Subchapter A, Section 

101.27 for revised emission fees 

calculations. The TNRCC also adopted 

amendments to 30 TAC Chapter 116, 

Sections 116.10, 116.110, 116.116, 

116.603, 116.620, 116.621, 116.710, 

116.715, 116.721, 116.722 and 116.750 

pursuant to Senate Bill 766, 76th 

Legislature, 1999. All of these 

provisions were submitted to EPA on 

September 11, 2000, as part of rule log 

number 1999–029B–116–AI. 

• On December 28, 2009, EPA 

returned the submittal of 30 TAC 101.27 

to the Texas Commission on 

Environmental Quality (TCEQ) as part 

of the Title V Operating Permit Program 

rather than a Title I program that is 

implemented through the SIP. TCEQ 

submitted a letter on January 14, 2010, 

concurring with our assessment and 

withdrawing 30 TAC 101.27 from 

consideration as a SIP submittal. 

• On November 14, 2003, EPA 

approved the amendments to 30 TAC 

Sections 116.110, 116.116, and 116.603. 

See 68 FR 64548. 

• On April 14, 2010, EPA approved 

the amendments to 30 TAC Section 

116.10(6) submitted on September 11, 

2000. Also in this action EPA 

disapproved the amendments to 30 TAC 

Section 116.10(2) and took no action on 

30 TAC Section 116.10(5)(F). See 75 FR 

19468. 

• On June 30, 2010, EPA issued a 

final disapproval of the Texas Flexible 

Permits Program, including disapproval 

of 30 TAC Sections 116.710, 116.715, 

116.721, 116.722, and 116.750 

submitted on September 11, 2000. See 

(75 FR 41312, July 15, 2010). 

• The amendments to 30 TAC Section 

116.620 remain open for review and 

action by EPA at a later date. EPA is 

under a consent decree deadline to take 

final action no later than October 31, 

2011. 

• The amendments to 30 TAC Section 

116.621 were repealed by the TCEQ on 

March 1, 2006, as part of Rule Project 

Number 2003–066–116–PR. No further 

action is needed by EPA on this section. 

July 15, 2002 

• On March 13, 2002, the TNRCC 

adopted new provisions in the EBTA 

Program for emission reductions 

achieved outside the United States at 30 

TAC Chapter 101, Subchapter H, 

Division 2, Section 101.338. The 

Chairman of the TNRCC, Mr. Robert J. 

Huston, submitted this section as a SIP 

revision in a letter dated July 15, 2002, 

for rule project number 2001–063–101– 

AI. 

• On March 13, 2002, the TNRCC also 

adopted revisions to the Emission Credit 

Banking and Trading Program (referred 

to elsewhere in this document as the 

Emission Reduction Credit (ERC) 

Program) at 30 TAC Chapter 101, 

Subchapter H, Division 1, Section 

101.302; the Mass Emissions Cap and 

Trade (MECT) Program at 30 TAC 

Chapter 101, Subchapter H, Division 3, 

Section 101.357, and the Discrete 

Emission Credit Banking and Trading 

Program (referred to elsewhere in this 

document as the Discrete Emission 

Reduction Credit (DERC) Program) at 30 

TAC Chapter 101, Subchapter H, 

Division 4, Section 101.372. The TNRCC 

also adopted new 30 TAC 117.571. All 

of these provisions were also submitted 

to EPA on July 15, 2002, as part of rule 

project number 2001–063–101–AI. 

• EPA fully approved the 

amendments to section 101.302 on 

September 6, 2006. See 71 FR 52698. 

• EPA conditionally approved the 

amendments to section 101.372 on 

September 6, 2006. See 71 FR 52703. 

The conditional approval of the DERC 

Program was converted to a full 

approval on May 18, 2010. See 75 FR 

27644. 

• EPA has taken no action to date on 

new section 101.357. This section is 

severable from our analysis and action 

on the EBTA program because the 

MECT Program is a separate, standalone cap and trade program specific to 

the Houston-Galveston-Brazoria (HGB) 

ozone nonattainment area. This action 

remains open for review and action at 

a later date by EPA. 

• EPA has taken no action to date on 

new section 117.571. This section is 

severable from our analysis and action 

on the EBTA program because section 

117.571 establishes provisions to allow 

the substitution of emissions reductions 

achieved under the Texas Emission 

Reduction Program (TERP) for NOX

emission reductions required in the 

HGB and Dallas/Fort Worth ozone 

nonattainment areas. This section 

remains open for review and action at 

a later date by EPA. 

October 24, 2006 

• On October 4, 2006, the Texas 

Commission on Environmental Quality 

(TCEQ) adopted the repeal of 30 TAC 

Section 101.338 and new 30 TAC 

Sections 101.338 and 101.339. The 

Chairman of the TCEQ, Ms. Kathleen 

Hartnett White, submitted these 

provisions as a SIP revision in a letter 

dated October 24, 2006, for rule project 

number 2005–054–101–PR. In this SIP 

submittal cover letter, Chairman White 

requested that EPA take no federal 

action on 30 TAC Section 101.337 

submitted on January 3, 2000; section 

101.337 establishes requirements 

unique to the El Paso Region which will 

be state only requirements. 

• On October 4, 2006, TCEQ also 

adopted revisions to the ERC program at 

30 TAC Chapter 101, Sections 101.302, 

101.305 and 101.306 to address the 

mandates of Texas Senate Bill 784 and 

the conditions of EPA’s final 

conditional approval of the DERC 

Program, September 6, 2006. See 71 FR 

52703. Also at this time, the TCEQ 

adopted revisions to the DERC Program 

at 30 TAC Chapter 101, Sections 

101.372, 101.373, 101.375, 101.376, and 

101.378 to address the mandates of 

Texas SB 784 and the conditions of 

EPA’s final conditional approval of the 

DERC Program, September 6, 2006. All 

of these revisions were submitted to 

EPA on October 24, 2006, as part of rule 

project number 2005–054–101–PR. 

• On April 30, 2010, EPA fully 

approved the amendments to the ERC 

and DERC Programs at 30 TAC Chapter 

101, Sections 101.302, 101.305, 101.306, 

101.372, 101.373, 101.375, 101.376, and 

101.378. See 75 FR 27644 and 75 FR 

27647, May 18, 2010. 

III. What is the Emissions Banking and 

Trading of Allowances Program? 

Why did Texas develop the EBTA 

Program? 

The TCEQ created the EBTA Program 

to implement the requirements of Texas 

SB 7, from the 76th Legislature, 1999, 

which deregulated the electric utility 

industry. Under SB 7, TCEQ was 

required to develop a permitting system 

and a mass cap and trade system to 

distribute allowances for use by electric 

generating facilities. The EBTA program 

is designed to achieve a 50 percent 

reduction in NOX emissions and a 25 

percent reduction in SO2 emissions, 


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both based on 1997 heat input data, 

from participating sources. The 

permitting system required under SB 7 

and established at 30 TAC Chapter 116, 

Subchapter I, is being evaluated in a 

separate rulemaking action (See 75 FR 

64235, October 19, 2010 at docket EPA– 

R06–OAR–2005–TX–0031). 

How does the EBTA Program work? 

The EBTA Program is similar to the 

source specific emissions cap as 

described in EPA’s Economic Incentive 

Program (EIP) Guidance, ‘‘Improving Air 

Quality with Economic Incentive 

Programs’’ (EPA–452/R–01–001, January 

2001) (EIP Guidance). A source specific 

emissions cap (SSEC) allows a limited 

group of sources that are subject to a 

rate-based emission limit to meet that 

requirement by accepting a mass-based 

emission limit, or cap, rather than 

complying directly with a rate-based 

limit. Some attributes that characterize 

a successful SSEC include a welldefined group of sources, little potential 

for emissions to shift from included 

sources to excluded sources, and a 

relatively low level of uncertainty 

associated with the program. In the 

EBTA Program, the participating 

sources are limited to grandfathered and 

electing electric generating facilities 

(EGFs). An electing EGF is a facility 

permitted under 30 TAC Chapter 116, 

Subchapter B that elects to comply with 

the permitting program established in 

Texas SB 7 at 30 TAC Chapter 116, 

Subchapter I. 

The EBTA divides Texas into three 

regions—East Texas, West Texas, and El 

Paso. The East Texas Region includes all 

counties traversed by or east of 

Interstate Highway 35 north of San 

Antonio or traversed by or east of 

Highway 37 south of San Antonio, also 

including Bexar, Bosque, Coryell, Hood, 

Parker, Somervell, and Wise Counties. 

The West Texas Region includes all 

counties not contained in the East Texas 

or El Paso Regions. The El Paso Region 

is defined at 30 TAC section 101.330(13) 

as all of El Paso County, Ciudad Juarez, 

Mexico, and Sunland Park, New 

Mexico. Note that on October 24, 2006, 

TCEQ requested no Federal action on 

the portions of the EBTA that pertain to 

the El Paso region. 

To achieve the reductions of 50 

percent NOX emissions and 25 percent 

SO2 emissions, the TCEQ established 

emission caps for each region. The caps 

consist of allowances allocated by the 

TCEQ to each facility in the EBTA 

initially by January 1, 2000, for 

grandfathered EGFs and by January 1, 

2001, for electing EGFs. Beginning in 

2004, the TCEQ will allocate the 

allowances to all facilities in the EBTA 

by May 1 of each year. The TCEQ will 

deposit the same amount of allowances 

into each grandfathered or electing 

EGF’s compliance account at the 

beginning of each control period, with 

the exception that the allocation for 

electing EGFs may be adjusted to reflect 

new state or Federal requirements. An 

allowance is the authorization to emit 

one ton of NOX or SO2 during a control 

period and does not constitute a 

security or property right. All 

allowances will be allocated, 

transferred, or used as whole 

allowances. The control period for the 

EBTA is the 12-month period beginning 

May 1 of each year and ending April 30 

of the following year, with the initial 

control period beginning May 1, 2003. 

A facility can choose to operate at, 

above, or below its allowance budget. A 

source operating below its allowance 

budget can bank or trade its allowances 

for use in subsequent control periods. A 

source operating above its allowance 

budget must purchase excess 

allowances from another source to 

demonstrate compliance with the cap. 

Beginning June 1, 2004, and no later 

than June 1 following the end of every 

control period, each facility must hold 

a quantity of allowances in its 

compliance account that is equal to or 

greater than the total emissions of air 

contaminant emitted during the control 

period just ending. If a facility’s actual 

emissions of air contaminant during a 

control period exceed the amount of 

allowances held in the compliance 

account on June 1, allowances for the 

next control period will be reduced by 

an amount equal to the emissions 

exceeding the allowances in the 

compliance account. This deduction 

does not preclude any additional 

enforcement action by the TCEQ. 

Facilities subject to the EBTA must 

submit a report to the TCEQ by June 30 

of each year following the completed 

control period. This report must include 

the amount of emissions of each 

allocated air contaminant and a 

summary of all final trades for the 

preceding control period. Additionally, 

facilities subject to the EBTA will 

quantify and report emissions using the 

monitoring and reporting requirements 

of 30 TAC 116.914 (See 75 FR 64235, 

October 19, 2010 at docket EPA–R06– 

OAR–2005–TX–0031). 

A grandfathered or electing EGF may 

use emission reductions achieved from 

Mexico in lieu of allowances for 

compliance with the EBTA. The 

emission reductions may be criteria 

pollutants or precursors of criteria 

pollutants, with the exception of lead 

emissions. The reductions may be used 

in lieu of the same pollutant 

requirement (i.e., NOX reductions from 

Mexico are substituted for NOX

requirements in Texas). Or, the 

reductions of criteria pollutants or their 

precursors may be substituted for 

emission reduction requirements for 

other criteria pollutants (i.e., reductions 

in CO emissions could be substituted for 

NOX or SO2 emission requirements). In 

the event the Mexican reduction is 

being substituted for a criteria pollutant 

requirement (CO for NOX or SO2), the 

substitution must result in greater 

health benefits and must be of equal or 

greater benefit to the overall air quality 

of the area; or the substitution occurs 

between criteria pollutants for which 

the area has been designated 

nonattainment. Generally, the use of 

reductions from outside the United 

States must be approved by the TCEQ 

executive director and the EPA, and the 

user of the emission reduction must: 

1. Demonstrate to the TCEQ executive 

director and to the EPA that the 

reduction is real, permanent, 

enforceable, quantifiable and surplus to 

any applicable Mexican, federal, state, 

or local law; 

2. Demonstrate that the use of the 

reduction does not cause localized 

health impacts, as determined by the 

TCEQ executive director and EPA; 

3. Submit all supporting information 

for calculations and modeling, and any 

additional information requested by the 

TCEQ executive director and EPA; and 

4. Be located within 100 kilometers of 

the Texas-Mexico border. 

Sources subject to the EBTA submit 

an annual compliance report to the 

TCEQ by June 30 of each year. This 

report details the amount of emissions 

of each allocated air contaminant and a 

summary of all final trades for the 

preceding control period. Through 

review of these reports, the TCEQ is able 

to determine which facilities are in 

compliance with the program. 

The TCEQ executive director will also 

develop a report no later than 

September 30th following each control 

period that includes the number of 

allowances allocated to each 

compliance account; the total number of 

allowances allocated under the EBTA 

program; the number of actual NOX and 

SO2 allowances subtracted from each 

compliance account based on the actual 

NOX and SO2 emissions from the site; 

and a summary of all trades completed 

under the EBTA program. 

Additionally, the TCEQ executive 

director will audit the program no later 

than three years after the effective date 

of the EBTA program, and every three 

years thereafter. The audit will evaluate 

the impact of the program on the state’s 

ozone attainment demonstrations, the 


jlentini on DSKJ8SOYB1PROD with RULES
69888 Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations 

availability and cost of allowances, 

compliance by the participants, and any 

other elements the executive director 

deems necessary. If any problems are 

identified, the executive director will 

recommend remedies, including the 

discontinuation of trading in whole or 

part. This audit will be submitted to the 

EPA and made available for public 

inspection within six months after the 

audit begins. 

IV. What is EPA’s evaluation of the 

Emissions Banking and Trading of 

Allowances Program? 

Generally, SIP rules must be 

enforceable and must not relax existing 

requirements. See Clean Air Act 

sections 110(a), 110(l), and 193. EPA’s 

review of the January 3, 2000; 

September 11, 2000; July 15, 2002; and 

October 24, 2006 SIP revisions finds 

that all 4 SIP submittals are consistent 

with the requirements at 40 CFR part 51 

and are considered complete SIP 

submittals in accordance with 40 CFR 

part 51, Appendix V. This detailed 

analysis is available in the TSD for this 

rulemaking. Additionally, we reviewed 

the EBTA program with respect to EPA’s 

EIP Guidance ‘‘Improving Air Quality 

with Economic Incentive Programs’’ 

(EPA–452/R–01–001, January 2001) (EIP 

Guidance). Our analysis, as detailed in 

the TSD accompanying this rulemaking, 

finds that the EBTA program is 

consistent with the criteria for 

discretionary source specific emissions 

cap programs. The EBTA program will 

provide compliance flexibility to 

participating EGFs and achieve the 

programmatic emission reduction goals 

of Texas SB 7. Further, EPA finds that 

the EBTA program is consistent with 

section 110(l) of the CAA and will not 

interfere with any applicable 

requirements concerning attainment and 

reasonable further progress towards 

attainment of the NAAQS or any other 

applicable requirements of the Act. 

IV. Final Action 

EPA is taking direct final action to 

approve portions of four revisions to the 

Texas SIP submitted on January 3, 2000; 

September 11, 2000; July 15, 2002; and 

October 24, 2006. Specifically, EPA is 

approving 30 TAC Chapter 101, 

Subchapter H, Division 2, Sections 

101.330–101.336, submitted on January 

3, 2000; the revisions to 30 TAC section 

101.333 submitted on September 11, 

2000; the adoption of new 30 TAC 

section 101.338 submitted on July 15, 

2002; and the revisions to 30 TAC 

section 101.338 and the adoption of new 

30 TAC section 101.339 submitted on 

October 24, 2006. 

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. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. 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 18, 2011. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: November 5, 2010. 

Lawrence E. Starfield, 

Acting Regional Administrator, EPA Region 

6. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart SS—Texas 

■ 2. The table in § 52.2270(c) entitled 

‘‘EPA-Approved Regulations in the 

Texas SIP’’ is amended by adding a new 

centered heading titled ‘‘Division 2— 

Emissions Banking and Trading of 

Allowances’’ immediately after the entry 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations 69889 

for Section 101.311 under Chapter 

101—General Air Quality Rules, 

Subchapter H—Emissions Banking and 

Trading, followed by new entries for 

sections 101.330, 101.331, 101.332, 

101.333, 101.334, 101.335, 101.336, 

101.338 and 101.339. 

The additions read as follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

Chapter 101—General Air Quality Rules 

*******

Subchapter H—Emissions Banking and Trading 

*******

Section 101.311 ........................... Program Audits and Reports ....... 11/10/04 9/6/06, 71 FR 52698.

Division 2—Emissions Banking and Trading of Allowances 

Section 101.330 ........................... Definitions .................................... 12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.331 ........................... Applicability .................................. 12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.332 ........................... General Provisions ...................... 12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.333 ........................... Allocation of Allowances .............. 08/09/2000 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.334 ........................... Allowance Deductions ................. 12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.335 ........................... Allowance Banking and Trading .. 12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.336 ........................... Emission Monitoring, Compliance 

Demonstration, and Reporting.

12/16/1999 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.338 ........................... Emission Reductions Achieved 

Outside the United States.

10/04/2006 November 16, 2010 [Insert 

FR page number where 

document begins].

Section 101.339 ........................... Program Audits and Reports ....... 10/04/2006 November 16, 2010 [Insert 

FR page number where 

document begins].

* * * * * * * 

[FR Doc. 2010–28659 Filed 11–15–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0473; FRL–9227–6] 

Extension of Deadline for Action on 

the Second Section 126 Petition From 

New Jersey 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: In this action, EPA is 

determining that 60 days is insufficient 

time to complete the technical and other 

analyses and the public notice and 

comment process required for our 

review of a petition submitted by the 

State of New Jersey Department of 

Environmental Protection (New Jersey) 

pursuant to section 126 of the Clean Air 

Act (CAA). The petition requests that 

EPA make a finding that the coal-fired 

Portland Generating Station in Upper 

Mount Bethel Township, Northampton 

County, Pennsylvania, is emitting air 

pollutants that significantly contribute 

to nonattainment or interfere with 

maintenance of the 1-hour sulfur 

dioxide (SO2) national ambient air 

quality standards (NAAQS). Under the 

CAA, EPA is authorized to grant a time 

extension for responding to the petition 

if EPA determines that the extension is 

necessary, among other things, to meet 

the purposes of the CAA’s rulemaking 

requirements. By this action, EPA is 

making that determination. EPA is 

therefore extending the deadline for 

acting on the petition to no later than 

May 16, 2011. 

DATES: The effective date of this action 

is November 16, 2010. 

ADDRESSES: EPA has established a 

docket for this rulemaking under Docket 

ID number EPA–HQ–OAR–2010–0473. 


jlentini on DSKJ8SOYB1PROD with RULES