36964 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Proposed Rules 

through the advanced search feature at 

this site, you can limit your search to 

documents published by these 

Departments. 

Dated: June 14, 2012. 

Arne Duncan, 

Secretary of Education. 

Kathleen Sebelius, 

Secretary of Health and Human Services. 

[FR Doc. 2012–14954 Filed 6–19–12; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2011–0332; FRL–9687–6] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Antibacksliding of Major NSR SIP 

Requirements for the One-Hour Ozone 

National Ambient Air Quality 

Standards (NAAQS); Major 

Nonattainment NSR (NNSR) SIP 

Requirements for the 1997 Eight-Hour 

Ozone NAAQS; and Major NSR Reform 

Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the SIP for the State of 

Texas that relate to antibacksliding of 

Major NSR SIP Requirements for the 

one-hour ozone NAAQS; Major NNSR 

SIP requirements for the 1997 eighthour ozone NAAQS; Major NSR Reform 

Program with Plantwide Applicability 

Limit (PAL) provisions; and non-PAL 

aspects of the Major NSR SIP 

requirements. EPA proposes to find that 

these changes to the Texas SIP comply 

with the Federal Clean Air Act (the Act 

or CAA) and EPA regulations and are 

consistent with EPA policies. Texas 

submitted revisions to these programs 

on June 10, 2005, and February 1, 2006. 

EPA disapproved these SIP revisions on 

September 15, 2010 (75 FR 56424). In 

response to the 2010 disapproval, Texas 

submitted revisions to these programs in 

two separate SIP submittals on March 

11, 2011. These SIP submittals include 

resubmittal of the rules that were 

previously submitted June 10, 2005, and 

February 1, 2006, and subsequently 

disapproved by EPA on September 15, 

2010. On February 22, 2012, Texas 

proposed further revisions to the NSR 

Reform Program to further clarify and 

ensure compliance with Federal 

requirements relating to NSR Reform. 

On May 3, 2012, Texas provided a letter 

to EPA which requested that EPA 

parallel process the revisions proposed 

February 22, 2012, and included a 

demonstration showing how its 

submitted rules are at least as stringent 

as the Federal NSR Reform Program. 

Texas has requested that EPA parallel 

process the revisions proposed February 

22, 2012, and consider the May 3, 2012, 

letter in the review of the March 11, 

2011, SIP submittals. Today, EPA is 

proposing to find that the March 11, 

2011, SIP submittals; the February 22, 

2012, proposed revisions; and the May 

3, 2012, letter, address each of the 

grounds for EPA’s September 15, 2010, 

disapproval and other issues related to 

the Texas NSR Reform revisions as 

identified later. Accordingly, EPA 

proposes to approve these two March 

11, 2011, revisions; the February 22, 

2012, proposed revisions for which 

Texas has requested parallel processing; 

and the May 3, 2012, letter as part of the 

Texas NSR SIP. EPA is proposing this 

action under section 110 and parts C 

and D of the Act. 

DATES: Comments must be received on 

or before July 20, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2011–0332 by one of the following 

methods: 

(1) Federal eRulemaking Portal: http: 

//www.regulations.gov. Follow the online instructions for submitting 

comments. 

(2) Email: Mr. Stanley M. Spruiell at 

spruiell.stanley@epa.gov. 

(3) 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. 

(4) Fax: Mr. Stanley M. Spruiell, Air 

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

214–665–6762. 

(5) Mail: Mr. Stanley M. Spruiell, Air 

Permits Section (6PD–R), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

(6) Hand or Courier Delivery: Mr. 

Stanley M. Spruiell, 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–2011– 

0332. 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 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or email. 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 and with any disk or CD–ROM 

you submit. 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, any form 

of encryption, and be free of any defects 

or viruses. 

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 whose disclosure 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 Freedom of 

Information Act 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 or Mr. Bill Deese at 

(214) 665–7253 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 


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1 In the remainder of this document, we will refer 

to the Eight-Hour Ozone NSR SIP submittal as 

submitted March 11, 2011–1, which includes the 

resubmittal of the NSR Reform revisions adopted 

May 25, 2005, and additional revisions adopted 

February 9, 2011. 

2 In the remainder of this document, we will refer 

to the NSR Reform submittal as submitted March 

11, 2011–2, which includes the resubmittal of the 

NSR Reform revisions adopted January 11, 2006, 

and additional revisions adopted February 9, 2011. 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittals, which are part 

of the EPA docket, are also available for 

public inspection at the State Air 

Agency during official business hours 

by appointment: Texas Commission on 

Environmental Quality (TCEQ), Office 

of Air Quality, 12124 Park 35 Circle, 

Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Stanley M. Spruiell, Air Permits Section 

(6PD–R), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733; 

telephone (214) 665–7212; fax number 

(214) 665–6762; email address 

spruiell.stanley@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

used, we mean EPA. 

Table of Contents 

I. The State’s Submittals 

A. What is the background of the Texas 

Programs for Major NSR for the eighthour National Ambient Air Quality 

Standard for ozone and for NSR reform? 

1. Major NSR for the Eight-Hour NAAQS 

for ozone 

2. NSR Reform 

B. What changes did Texas submit? 

C. Why are we ‘‘parallel processing’’ and 

how does it work? 

II. What action is EPA proposing to take on 

the antibacksliding Major NSR SIP 

requirements for the one-hour ozone 

NAAQS? 

A. Background 

B. What were the grounds for the 

September 15, 2010, disapproval? 

C. What did Texas submit to address the 

grounds for disapproval? 

D. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

III. What action is EPA proposing to take on 

the Major Nonattainment NSR SIP 

requirements for the 1997 eight-hour 

ozone NAAQS? 

A. Background 

B. What were the grounds for the 

September 15, 2010, disapproval? 

C. What did Texas submit to address the 

grounds for disapproval? 

D. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

IV. What Action is EPA proposing to take on 

the Major NSR Reform Program with 

Plantwide Applicability (PAL) 

provisions? 

A. Background 

B. EPA’s Evaluation of the Grounds for 

Disapproval and Texas’ Revisions to 

Address These Grounds 

1. The February 1, 2006, SIP Submittal 

Lacked a Provision That Limits 

Applicability of a PAL to an Existing 

Major Stationary Source 

2. The February 1, 2006, SIP Submittal Had 

No Provisions That Relate to PAL ReOpenings 

3. There Was No Mandate That Failure To 

Use a Monitoring System That Meets the 

Requirements in the PAL Renders the 

PAL Invalid 

4. The February 1, 2006, Submittal of 30 

TAC 116.182 and 116.186 Provided for 

an Emission Cap That May Not Account 

for all of the Emissions of a Pollutant at 

a Major Stationary Source 

5. The February 1, 2006, Submittal of 

Baseline Actual Emissions Did Not 

Provide That Emissions Be Calculated in 

Terms of the Average Rate, in Tons per 

Year 

6. The State Failed To Include Specific 

Definitions of Continuous Emissions 

Monitoring System (CEMS), Continuous 

Emissions Rate Monitoring System 

(CERMS), Continuous Parameter 

Monitoring System (CPMS), and 

Predictive Emissions Monitoring System 

(PEMS) 

C. Other Concerns With the Major NSR 

Reform Program With Plantwide 

Applicability Limit (PAL) Provisions 

1. Submittal of 30 TAC 116.12(23)— 

Definition of ‘‘Plant-Wide Applicability 

Limit Effective Date’’ 

2. Submittal of 30 TAC 116.12(22)— 

Definition of ‘‘Plant-Wide Applicability 

Limit’’—and 30 TAC 116.186(a) 

3. Submittal of 30 TAC 116.186(c)(2) Does 

Not Specifically Provide That 

Monitoring Data Must Meet Minimum 

Legal Requirements for Admissibility in 

a Judicial Proceeding to Enforce the PAL 

4. Submittal of 30 TAC 116.186(a) 

V. What action is EPA proposing to take on 

the non-PAL aspects of the Major NSR 

SIP requirements? 

A. Background 

B. EPA Evaluation of the Grounds for 

Disapproval and Texas’ Revisions to 

Address These Grounds 

1. The March 11, 2011–1 Submitted Rule 

Did Not Explicitly Limit the Definition of 

‘‘Facility’’ to an Emissions Unit 

2. The Definition of ‘‘Baseline Actual 

Emissions’’ Submitted March 11, 2011– 

2 to 30 TAC 116.12(3)(E) Does Not 

Require the Inclusion of Emissions 

Resulting From Startups, Shutdowns, 

and Malfunctions, as Required Under 

Federal Regulations 

3. The February 1, 2006, Submitted 

Definition ‘‘Baseline Actual Emissions’’ 

Does Not Provide That the Emissions 

Must Be Calculated in Terms of the 

Average Rate, in Tons per Year 

VI. Does approval of Texas’ rule revisions 

interfere with attainment, reasonable 

further progress, or any other applicable 

requirement of the Act? 

VII. Proposed Action 

VIII. Statutory and Executive Order Reviews 

I. The State’s Submittals 

A. What is the background of the Texas 

programs for Major NSR for the eighthour National Ambient Air Quality 

Standard for ozone and for NSR 

Reform? 

1. Major NSR for the Eight-Hour 

NAAQS for Ozone 

On April 30, 2004 (69 FR 23858), EPA 

promulgated regulations that included 

requirements for implementing Major 

NSR for the 1997 eight-hour ozone 

NAAQS. On May 25, 2005, the TCEQ 

adopted SIP revisions to implement 

these requirements and submitted them 

to EPA on June 10, 2005. The EPA 

disapproved these regulations 

September 15, 2010 (75 FR 56424). On 

March 11, 2011, the TCEQ resubmitted 

the revisions adopted May 25, 2005, and 

submitted further revisions, adopted 

February 9, 2011, to address EPA’s 

September 15, 2010, disapproval.1

Section I.B of this preamble includes 

further details of what TCEQ submitted. 

2. NSR Reform 

On December 31, 2002 (67 FR 80186), 

EPA promulgated its NSR Reform 

Program. On November 7, 2003 (68 FR 

63021), EPA promulgated a final action 

on its reconsideration of the December 

31, 2002, NSR Reform. On January 11, 

2006, TCEQ adopted its regulations for 

NSR Reform and on February 1, 2006, 

submitted these regulations to EPA for 

SIP approval. The EPA disapproved 

these regulations September 15, 2010 

(75 FR 56424). On March 11, 2011, the 

TCEQ resubmitted the revisions adopted 

January 11, 2006, and submitted further 

revisions, adopted February 9, 2011, to 

address the grounds for EPA’s 

September 15, 2010, disapproval.2 On 

February 22, 2012, TCEQ proposed 

additional revisions to these regulations 

and requested that EPA parallel process 

these revisions with the revisions 

submitted March 11, 2011–2, based 

upon the revisions that TCEQ proposed 

February 22, 2012, and subsequent 

submittal of those revisions following 

final adoption. TCEQ further submitted 

a letter dated May 3, 2012, to EPA to 

meet its Federal NSR Reform Program 

demonstration requirements that 

provides its interpretation of certain 


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NSR Reform rules to further clarify and 

ensure implementation consistent with 

the Federal NSR Reform Program. 

Section I.B of this preamble includes 

further details of what TCEQ submitted. 

B. What changes did Texas submit? 

On March 11, 2011, the TCEQ 

submitted the following revisions to the 

Texas SIP: 

• New Source Review for Eight-Hour 

Ozone Standard; Rule Project Number 

2005–009–116–AI, adopted May 25, 

2005. These revisions were originally 

submitted on June 10, 2005. EPA 

disapproved these SIP revisions on 

September 15, 2010, 75 FR 56424. The 

revisions submitted March 11, 2011–1, 

included the resubmittal of the 2005 

revisions in order to reinstate before us 

for a new action, the rules that we 

disapproved in 2010. 

• Federal New Source Review Permit 

Rules Reform; Rule Project Number 

2006–010–116–PR, adopted January 11, 

2006. These revisions were originally 

submitted on February 1, 2006. EPA 

disapproved these SIP revisions on 

September 15, 2010, 75 FR 56424. The 

revisions submitted March 11, 2011–2, 

included the resubmittal of the 2006 

revisions in order to reinstate before us 

for a new action, the rules that we 

disapproved in 2010. 

• New Source One-Hour Ozone Major 

Source Thresholds and Emission 

Offsets; Rule Project Number 2008–030– 

116–PR, submitted March 11, 2011–1. 

• New Source Review (NSR) Reform; 

Rule Project Number 2010–008–116–PR, 

submitted March 11, 2011–2. 

On February 22, 2012, the TCEQ 

proposed revisions to its NSR Reform 

Program and requested that the EPA 

parallel process these revisions. On May 

3, 2012, Texas provided a letter to EPA 

which requested that EPA parallel 

process the revisions proposed February 

22, 2012, and included a demonstration 

showing that certain of its submitted 

rules are at least as stringent as the 

Federal NSR Reform Program. The 

following tables summarize the rules 

and provide additional information 

relating to the submitted regulations and 

the revisions proposed February 22, 

2012, for parallel processing and the 

May 3, 2012, letter. Additional 

information is also provided in a 

Technical Support Document (TSD) for 

this proposed action and which is in the 

docket. 

TABLE 1—RULES SUBMITTED IN EACH SIP SUBMITTAL THAT IS AFFECTED BY THIS ACTION

Description of SIP submittal Texas rule project 

No. 

Date 

submitted to 

EPA 

Adopted by 

State 

Effective as 

State rule Rules addressed in this action 

New Source Review for Eight-Hour 

Ozone Standard.

2005–009–116–AI, 

2008–030–116– 

PR.

a 3/11/2011–1 5/25/2005 6/15/2005 Amended 30 TAC 116.12c, and 

116.150. 

Federal New Source Review (NSR) 

Permit Rules Reform.

2005–010–116–PR, 

2010–008–116– 

PR.

b 3/11/2011–2 1/11/2006 2/1/2006 • Amended 30 TAC 116.12c, 

116.150, 116.151, 116.160, and 

116.610; 

• Repeal of 30 TAC 116.617; and 

• New 30 TAC 116.121, 116.180, 

116.182, 116.184, 116.186, 

116.188, 116.190, 116.192, 

116.194, 116.196, and 116.198. 

One Hour Ozone Major Source 

Thresholds and Emission Offsets.

2008–030–116–PR .. 3/11/2011–1 2/9/2011 3/3/2011 Amended 30 TAC 101.1d, 116.12c, 

and 116.150 

New Source Review (NSR) Reform 2010–008–116–PR .. 3/11/2011–2 2/9/2011 3/3/2011 • Amended 30 TAC 116.12c, 

116.115, 116.180, 116.182, 

116.186, 116.188, 116.190, 

116.192, and 116.601; 

• Repealed 30 TAC 116.121; and 

• New 30 TAC 116.127. 

NSR Reform Revisions .................. 2012–015–116–AI ... (e) (e) (e) • Amended 30 TAC 116.12(23); 

116.150(a), (d)(1), and (d)(3); 

116.151(a), (c)(1), and (c)(3); 

116.180(a)(5); 116.186(b)(9). 

• Proposed revision submitted for 

parallel processing. 

Letter of explanation and interpretation of the Texas SIP for NSR 

Reform.

N/A ........................... (f) (f) (f) Letter dated May 3, 2012, from 

TCEQ to EPA which explains 

and clarifies TCEQ’s interpretation of sections 116.12(22) and 

116.186(a), (b)(9), and (c)(2). 

aOriginally submitted June 10, 2005. Following disapproval on September 15, 2010, TCEQ on March 11, 2011–1, resubmitted the provisions 

that were previously disapproved to ensure that EPA considers the prior submittals in its action on the revisions submitted on March 11, 2011–1. bOriginally submitted February 1, 2006. Following disapproval on September 15, 2010, TCEQ on March 11, 2011–2, resubmitted the provisions that were previously disapproved to ensure that EPA considers the prior submittals in its action on the revisions submitted on March 11, 

2011–2. cThe following provisions of 30 TAC 116.12 were addressed separately in the Texas Infrastructure SIP: The revised title, the introductory paragraph, and paragraphs (14), (17), and (18). These revisions were adopted in the two revisions under Texas Rule Project Nos. 2008–030–116– 

PR and 2010–008–116–PR, each adopted February 9, 2011, submitted March 11, 2011–1 and March 11, 2011–2. d 30 TAC 101.1 was addressed separately in the Texas Infrastructure SIP. 

eProposed by TCEQ on February 22, 2012, for parallel SIP processing. 

f Letter dated May 3, 2012, with explanation and interpretation of the Texas SIP for NSR Reform. 


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TABLE 2—SUMMARY OF INDIVIDUAL REVISIONS TO EACH SECTION EVALUATED

Section—Title Texas rule project No. 

Date 

submitted to 

EPA 

Adopted by 

State Comments 

30 TAC 116.12—Nonattainment and Prevention of Significant Deterioration Review Definitions.2005–009–116–AI, 

2008–030–116–PR.

2005–010–116–PR, 

2010–008–116–PR.

2010–008–116–PR ........

a 3/11/2011–1 

b 3/11/2011–2 

3/11/2011–2 

5/25/2005 

1/11/2006 

2/9/2011 

Amended paragraphs (7), (11), and 

(13).d

(c d) 

Amended paragraphs (3), (20) and (29).d

2012–015–116–AI ......... (e) (e) Amended paragraph (23). 

N/A ................................. (f) (f) TCEQ’s letter dated May 3, 2012, explains and clarifies TCEQ’s interpretation of the definition of ‘‘plant-wide applicability limit’’ in paragraph (22). 

30 TAC 116.115—General and Special 

Conditions.

2010–008–116–PR ........ 3/11/2011–2 2/9/2011 Amended subparagraph (b)(2)(F). 

30 TAC 116.127—Actual to Projected Actual and Emission Exclusion Test for 

Emissions.

2005–010–116–PR, 

2010–008–116–PR.

2010–008–116–PR ........

b 3/11/2011–2 

3/11/2011–2 

1/11/2006 

2/9/2011 

Submitted as 30 TAC 116.127. 

Repealed; Replaced w/new 30 TAC 

116.127. 

30 TAC 116.150—New Major Source or 

Major Modification in Ozone Nonattainment Area.

2005–009–116–AI, 

2008–030–116–PR.

a 3/11/2011–1 5/25/2005 Amended subsections (a); 

New subsections (b), (c), (d), and (e); 

Renamed subsection (b) to subsection 

(f). 

2005–010–116–PR, 

2012–015–116–AI.

b 3/11/2011–1 1/11/2006 Amended subsections (a), (b), (c), (d), 

and (e). 

2008–030–116–PR ........ 3/11/2011–1 2/9/2011 Amended subsections (a) and (b); 

Removed subsection (d); 

Renamed subsection (e) to subsection 

(d); 

Amended subsection (d) as renamed. 

2012–015–116–AI ......... (e) (e) Amended paragraphs (a), (d)(1), and 

(d)(3).e

30 TAC 116.151—New Major Source or 

Major Modification in Nonattainment 

Areas Other Than Ozone.

2005–010–116–PR, 

2010–008–116–PR.

2008–030–116–PR ........

2012–015–116–AI .........

b 3/11/2011–2 

3/11/2011–1 

(e) 

1/11/2006 

2/9/2011 

(e) 

Amended subsections (a), (b), and (c). 

Resubmitted with no additional changes. 

Amended paragraphs (a), (c)(1), and 

(c)(3).e

30 TAC 116.180—Applicability ................. 2005–010–116–PR, 

2010–008–116–PR.

b 3/11/2011–2 1/11/2006 Initial submittal. 

2010–008–116–PR ........ 3/11/2011–2 2/9/2011 Amended subsection (a). 

2012–015–116–AI ......... (e) (e) Amended paragraph (a)(5).e

30 TAC 116.182—Plant-Wide Applicability Limit Permit.2005–010–116–PR, 

2010–008–116–PR.

2010–008–116–PR ........

b 3/11/2011–2 

3/11/2011–2 

1/11/2006 

2/9/2011 

Initial submittal. 

Amended paragraph (1). 

30 TAC 116.184—Application Review 

Schedule.

2005–010–116–PR, 

2010–008–116–PR.

b 3/11/2011–2 1/11/2006 Initial submittal resubmitted with no additional changes. 

30 TAC 116.186—General and Specific 

Conditions.

2005–010–116–PR, 

2010–008–116–PR.

2010–008–116–PR ........

b 3/11/2011–2 

3/11/2011–2 

1/11/2006 

2/9/2011 

Initial submittal. 

Amended subsections (a) and (b). 

2012–015–116–AI ......... (e) (e) Amended paragraph (b)(9).e

N/A ................................. (f) (f) TCEQ’s letter dated May 3, 2012, explains and clarifies TCEQ’s interpretation of paragraphs (a), (b)(9) and 

(c)(2). 

30 TAC 116.188—Plant-Wide Applicability Limit.2005–010–116–PR, 

2010–008–116–PR.

2010–008–116–PR ........

b 3/11/2011–2 

3/11/2011–2 

1/11/2006 

2/9/2011 

Initial submittal. 

Amended main paragraph. 

30 TAC 116.190—Federal Nonattainment 

and Prevention of Significant Deterioration Review.

2005–010–116–PR, 

2010–008–116–PR.

2010–008–116–PR ........

b 3/11/2011–2 

3/11/2011–2 

1/11/2006 

2/9/2011 

Initial submittal. 

Amended subsection (a). 

30 TAC 116.192—Amendments and Alterations.2005–010–116–PR, 

2010–008–116–PR.

2010–008–116–PR ........

b 3/11/2011–2 

3/11/2011–2 

1/11/2006 

2/9/2011 

Initial submittal. 

Amended subsection (c). 

30 TAC 116.196—Renewal of a PlantWide Applicability Limit Permit.2005–010–116–PR, 

2010–008–116–PR.

b 3/11/2011–2 1/11/2006 Initial submittal resubmitted with no additional changes. 

30 TAC 116.198—Expiration and Voidance.2005–010–116–PR, 

2010–008–116–PR.

b 3/11/2011–2 1/11/2006 Initial submittal resubmitted with no additional changes. 

aOriginally submitted June 10, 2005. Following disapproval on September 15, 2010, TCEQ on March 11, 2011–1, resubmitted the provisions 

that were previously disapproved to ensure that EPA considers the prior submittals in its action on the revisions submitted on March 11, 2011– 

1). bOriginally submitted February 1, 2006. Following disapproval on September 15, 2010, TCEQ on March 11, 2011–2, resubmitted the provisions that were previously disapproved to ensure that EPA considers the prior submittals in its action on the revisions submitted on March 11, 

2011–2. 


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3 In a separate action, EPA approved the 

submitted revisions to 30 TAC 116.12(18)— 

definition of major modification—in the Texas 

Infrastructure SIP. We approved the Texas 

Infrastructure SIP on December 28, 2011 (76 FR 

81371). Accordingly, this evaluation only addresses 

the submitted revisions to 30 TAC 116.150(d). All 

references, herein, to the portions of 30 TAC 116.12 

that were approved in the Texas Infrastructure SIP 

are for informational purposes only. 

c In the February 1, 2006, SIP submittal (resubmitted March 11, 2011), 30 TAC 116.12 included the following revisions: 

• The addition of new paragraphs (3)–(4), (7)–(8), (13)–(14), (16), (22)–(26), (29)–(31), (33)–(34), and (36). 

• The following paragraphs were renumbered, consistent with the new paragraphs identified above, as follows: 

—Existing paragraphs (3)–(4) to paragraphs (5)–(6), respectively; 

—Existing paragraphs (5)–(8) to paragraphs (9)–(12), respectively; 

—Existing paragraph (9) to paragraph (15); 

—Existing paragraphs (10)–(14) to paragraphs (17)–(21), respectively; 

—Existing paragraphs (15)–(16) to paragraphs (27)–(28), respectively; 

—Existing paragraph (17) to paragraph (32); and 

—Existing paragraph (18) to paragraph (35). 

• The following existing paragraphs, as renumbered, were further revised: (1), (11), (12), (17), (18), and (20). dThis includes portions of 30 TAC 116.12 that were separately approved in the Texas Infrastructure SIP in which EPA approved. See 76 FR 

81371, December 28, 2011. In this action, EPA approved the following: The revised title of 30 TAC 116.12; the introductory paragraph to 30 TAC 

116.12; the definition of ‘‘federally regulated NSR pollutant’’ in 30 TAC 116.12(14), the definition of ‘‘major stationary source’’ in 30 TAC 

116.12(17), and the definition of ‘‘major modification’’ in 30 TAC 116.12(18).’’ eProposed by TCEQ on February 22, 2012, for parallel SIP processing. 

f Letter dated May 3, 2012, with explanation and interpretation of the Texas SIP for NSR Reform. 

C. Why are we ‘‘parallel processing’’ 

and how does it work? 

On February 22, 2012, Texas 

proposed revisions to 30 TAC 

116.12(23); 116.150(a), (d)(1), and (d)(3); 

116.151(a), (c)(1), and (c)(3); 

116.180(a)(5); and 116.186(b)(9). In its 

letter dated May 3, 2012, TCEQ 

requested parallel processing of these 

proposed revisions with our processing 

of the two SIP revisions submitted 

March 11, 2011. Texas requested 

parallel processing to expedite the 

processing of its submitted and 

proposed revisions. 

Parallel processing means that EPA 

proposes action on a state rule before it 

becomes final under state rule. See 40 

CFR part 51, Appendix V, section 2.3. 

Under parallel processing, EPA takes 

final action on the State’s proposal if the 

State’s final submission is adopted 

substantially unchanged from the 

submission on which this proposed 

rulemaking is based, or if significant 

changes in the final state submission are 

anticipated and adequately described in 

EPA’s proposed rulemaking, or result 

from needed corrections determined by 

the State to be necessary through review 

of issues described in EPA’s proposed 

rulemaking. Final rulemaking action by 

EPA will occur only after the SIP 

revision has been fully adopted by 

Texas and submitted formally to EPA 

for incorporation into the SIP. A further 

discussion of these rules that we are 

parallel processing can be found in later 

sections. 

II. What Action is EPA proposing to 

take on the antibacksliding Major NSR 

SIP requirements for the one-hour 

ozone NAAQS? 

A. Background 

On September 15, 2010, EPA 

disapproved provisions submitted June 

10, 2005, and February 1, 2006, that 

relate to the antibacksliding Major NSR 

SIP requirements for the one-hour ozone 

NAAQS. Specifically, EPA disapproved 

30 TAC 116.12(18) 3 and 116.150(d), 

because these submitted rules do not 

comply with the CAA as interpreted by 

the Court in South Coast Air Quality 

Management District, et al. v. EPA, 472 

F.3d 882 (DC Cir. 2006), reh’g denied 

489 F.3d 1245 (2007) (clarifying that the 

vacatur was limited to the issues on 

which the court granted the petitions for 

review). As explained below, this 

opinion does not require further action 

by EPA with respect to NSR. See 75 FR 

56424, at 56429–56431. 

B. What were the grounds for the 

September 15, 2010, disapproval? 

On July 18, 1997, EPA promulgated a 

new NAAQS for ozone based upon 

eight-hour average concentrations. The 

eight-hour averaging period replaced the 

previous one-hour averaging period, and 

the level of NAAQS was changed from 

0.12 parts per million (ppm) to 0.08 

ppm (62 FR 38865). On April 30, 2004 

(69 FR 23951), EPA published a final 

Phase 1 Implementation Rule that 

addressed key elements related to 

implementation of the 1997 eight-hour 

ozone NAAQS, including, but not 

limited to: (1) Revocation of the onehour NAAQS; and (2) How antibacksliding principles will ensure 

continued progress toward attainment of 

the 1997 eight-hour ozone NAAQS. We 

codified the anti-backsliding provisions 

governing the transition from the 

revoked one-hour ozone NAAQS to the 

1997 eight-hour ozone NAAQS in 40 

CFR 51.905(a). The one-hour ozone 

major nonattainment NSR SIP 

requirements indicated that certain onehour ozone standard requirements were 

not part of the list of anti-backsliding 

requirements provided in 40 CFR 

51.905(f). 

On December 22, 2006, the DC Circuit 

vacated the Phase 1 Implementation 

Rule in its entirety in the South Coast 

decision. EPA requested rehearing and 

clarification of the ruling; and on June 

8, 2007, the Court clarified that it was 

vacating the rule only to the extent that 

it had upheld petitioners’ challenges. 

Thus, the Court vacated the provisions 

in 40 CFR 51.905(e) that waived 

obligations under the revoked one-hour 

standard for NSR. The court’s ruling, 

therefore, maintains major 

nonattainment NSR applicability 

thresholds and emission offset ratios 

pursuant to classifications previously in 

effect for areas designated 

nonattainment for the one-hour ozone 

NAAQS. 

On June 10, 2005, and February 1, 

2006, Texas submitted SIP revisions to 

30 TAC 116.150 which relate to the 

transition from the major nonattainment 

NSR requirements applicable for the 

one-hour ozone NAAQS to 

implementation of the major 

nonattainment NSR requirements 

applicable to the 1997 eight-hour ozone 

NAAQS. Texas’ revisions to the 

introductory paragraph to subsection (d) 

of 30 TAC 116.150, effective as state law 

on June 15, 2005, provided that for ‘‘the 

Houston-Galveston-Brazoria, Dallas-Fort 

Worth, and Beaumont-Port Arthur eighthour ozone nonattainment areas, if the 

United States Environmental Protection 

Agency promulgates rules requiring new 

source review permit applications in 

these areas to be evaluated for 

nonattainment new source review 

according to the area’s one-hour 

standard classification,’’ then ‘‘each 

application will be evaluated according 

to that area’s one-hour standard 

classification’’ and ‘‘* * * the de 

minimis threshold test (netting) is 

required for all modifications to existing 

major sources of VOC or NOX in that 

area * * *’’ The introductory paragraph 

of 30 TAC 116.150(d) adds a new 

requirement for an affirmative 


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4The currently approved 30 TAC 116.12(11) was 

renumbered to 30 TAC 112.12(18) in the February 

1, 2006, submittal. This renumbering of, and 

revisions to, the definition, as resubmitted March 

11, 2011–1, was approved December 28, 2011, in 

our action on the Texas Infrastructure SIP. 

5TCEQ also submitted revisions to 30 TAC 

116.12(18)(A)(1) concerning major modification and 

30 TAC 101.1 to address this ground for SIP 

disapproval. EPA addressed these rules separately 

in the Texas Infrastructure SIP which contains the 

evaluation of the revisions to these sections. This 

action only addresses the revisions to 30 TAC 

116.150 that were submitted to address this ground 

for disapproval. 

6The SIP revision submitted on March 11, 2011– 

1, includes a nonsubstantive revision to 30 TAC 

116.150(e) which provides that the requirements for 

nitrogen oxides (NOX) do not apply in the El Paso 

nonattainment area. The revision removes the 

reference to areas as defined in 30 TAC 101.1 and 

replaced it with the area as defined in 40 CFR part 

81. In this SIP submittal, Texas also made similar 

changes to 30 TAC 101.1 to refer to the areas as 

defined in 40 CFR part 81. EPA approved these 

revisions to 30 TAC 101.1 in its action on the Texas 

Infrastructure SIP on December 28, 2011. 

regulatory action by EPA on the 

reinstatement of the one-hour ozone 

NAAQS major NNSR requirements 

before the legally applicable major 

NNSR requirements under the one-hour 

ozone standard will be implemented in 

the Texas one-hour ozone 

nonattainment areas. 

The approved Texas major NNSR SIP 

did not require such an affirmative 

regulatory action by EPA before the onehour ozone major NNSR requirements 

come into effect in the Texas one-hour 

ozone nonattainment areas. The SIP had 

stated at 30 TAC 116.12(11) 4 (Footnote 

1 under Table I) that ‘‘Texas 

nonattainment area designations are 

specified in 40 Code of Federal 

Regulations § 81.344.’’ That section 

included designations for the one-hour 

standard as well as the eight-hour 

standard. Moreover, the submitted 

revisions to 30 TAC 116.150(d) did not 

comport with the South Coast decision 

as discussed above. 

The court opinion maintains the 

lower applicability thresholds and more 

stringent offset ratios for a one-hour 

ozone nonattainment area whose 

classification under that standard was 

higher than its nonattainment 

classification under the eight-hour 

standard. In the June 10, 2005, and 

February 1, 2006, submitted rule 

revisions, the lower applicability 

thresholds and more stringent offset 

ratios for a classified one-hour ozone 

nonattainment area were not required in 

a Texas one-hour ozone nonattainment 

area unless and until EPA promulgated 

a rulemaking implementing the South 

Coast decision. See 75 FR 56424, at 

56429 and 56431. 

C. What did Texas submit to address the 

grounds for disapproval? 

On March 11, 2011–1, the TCEQ 

submitted the following amendments to 

30 TAC 116.150: 5

• The removal of paragraphs (a)(1) 

through (a)(2) and subsection (d); and 

• Revised the introductory paragraph 

to subsection (a) and added new 

paragraphs (a)(1) through (a)(4) which 

clarify that permitted facilities in areas 

that were designated nonattainment for 

the one-hour ozone standard are subject 

to the major source thresholds and 

emission offset requirements of the onehour ozone standard unless one of the 

four exceptions identified in 30 TAC 

116.150(a) apply. TCEQ amended 30 

TAC 116.150(a) to add a requirement for 

continued applicability of NNSR until: 

(1) EPA has made a finding of 

attainment; (2) EPA has approved the 

removal of NNSR requirements from the 

area; (3) EPA has determined that the 

Prevention of Significant Deterioration 

(PSD) requirements apply in the area; or 

(4) NNSR is no longer required for 

purposes of antibacksliding. 

As the result of EPA’s comments 

received on the proposal of these 

amendments the TCEQ changed 30 TAC 

116.150(a)(1) through (a)(4) to make 

clear that the conditions on which these 

exceptions are based must exist on the 

date of issuance of the permit. 

The TCEQ also removed 30 TAC 

116.150(d) from the rule. Subsection (d) 

contained language that indicated that 

the EPA must complete rulemaking 

before NSR applications are evaluated 

according to their one-hour 

classification. As stated above, the 

South Coast decision is selfimplementing, did not require 

rulemaking by the EPA to be effective, 

and NSR applications should be 

evaluated based upon one-hour 

classifications if they are more stringent 

than an area’s eight-hour classification. 

TCEQ also renumbered the remainder of 

30 TAC 116.150 to reflect the removal 

of 30 TAC 116.150(d) and minor 

changes to references in 30 TAC 

116.150(b) to reflect the renumbering. 

TCEQ also changed 30 TAC 116.150(e) 

to reflect changes in a concurrent 

rulemaking in Chapter 101.6

TCEQ states that these changes ensure 

that when changes are made to 

maintenance areas and nonattainment 

areas as a result of Federal action, these 

rules will not be rendered incorrect. 

Also, for the one-hour ozone NAAQS, 

the designations and classifications in 

40 CFR Part 81 were retained by EPA for 

purposes of anti-backsliding (See 70 FR 

44470, August 3, 2005). The TCEQ also 

removed the language ‘‘to prevent antibacksliding’’ and replaced it with ‘‘for 

the purposes of anti-backsliding’’ since 

the intent of the rule is to prevent 

backsliding and promote antibacksliding. 

D. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

The submitted revisions to 30 TAC 

116.150 now meet the Federal 

requirements regarding antibacksliding 

under South Coast. The submitted 

revision to 30 TAC 116.150(a), as 

discussed above, ensures that TCEQ will 

continue to require compliance with the 

NNSR requirements of the one-hour 

ozone standard until: (1) EPA has made 

a finding of attainment; (2) EPA has 

approved the removal of NNSR 

requirements from the area; (3) EPA has 

determined that PSD requirements 

apply in the area; or (4) NNSR is no 

longer required for purposes of 

antibacksliding. 

The TCEQ also removed 30 TAC 

116.150(d) from the rule. Subsection (d) 

had provided that the permitting 

requirements for the one-hour ozone 

nonattainment areas would not apply 

unless EPA later promulgates rules that 

reinstate the permitting requirements for 

the one-hour ozone standard. The 

removal of subsection (d) reinstates the 

requirement to follow the NNSR 

requirements of the one-hour ozone 

standard unless the EPA makes any of 

the findings described in subsection 

(a)(1) through (a)(4), as described above. 

These revisions satisfy the 

requirements of South Coast as 

discussed above and address EPA 

concerns related to Anti-Backsliding 

Major NSR SIP Requirements for the 

one-hour Ozone NAAQS. Accordingly, 

these revisions satisfy the requirements 

for SIP approval. EPA proposes to 

approve the submitted revisions to 30 

TAC 116.150 as described herein. 

III. What action is EPA proposing to 

take on the Major Nonattainment NSR 

SIP requirements for the 1997 eighthour ozone NAAQS? 

A. Background 

On September 15, 2010, EPA 

disapproved revisions to 30 TAC 

116.150(a) submitted June 10, 2005, and 

February 1, 2006. EPA disapproved this 

rule because it provided that an 

applicability determination for a Major 

NNSR permit is to be based upon the 

date of administrative completeness, 

rather than the date of permit issuance. 

This would allow more sources to avoid 

the Major NSR requirements where 

there is a nonattainment designation 

between the date of administrative 

completeness and the date of issuance. 


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7 You can access the 1991 Transitional Guidance 

at: http://www.epa.gov/ttn/nsr/gen/nstrans.pdf. 

8The Technical Support Document for the 2002 

NSR rule making is available at: http://www.epa.

gov/air/nsr/documents/nsr-tsd_11-22-02.pdf. 

9A PAL Permit at an existing major stationary 

source may include individual emissions units that 

have operated for less than two years (i.e., new 

emissions units). For new emissions units on which 

actual construction began after the 24-month 

baseline period, the PAL would include the 

potential to emit of new emissions units. See 40 

CFR 51.165(f)(6)(ii) and 51.166(w)(2)(ii). 

10Moreover, the development of an alternative 

method to provide new major stationary sources 

with the option of obtaining a PAL based on 

allowable emissions was foreclosed by the Court in 

New York v. EPA, 413 F.3d 3 at 38–40 (DC Cir. 

2005) (‘‘New York I’’) (holding that the Act since 

1977 requires a comparison of existing actual 

emissions before the change and projected actual 

(or potential emissions) after the change in question 

is required). 

B. What were the grounds for the 

September 15, 2010, disapproval? 

EPA interprets its Major NSR SIP 

rules to require that an applicability 

determination regarding whether Major 

NSR applies for a pollutant should be 

based upon the designation of the area 

in which the source is located on the 

date of issuance of the Major NSR 

permit. EPA also interprets the Act and 

its rules to require that if an area is 

designated nonattainment on the date of 

issuance of a Major NSR permit, then 

the Major NSR permit must be an NNSR 

permit, not a PSD permit. If the area is 

designated attainment/unclassifiable on 

the date of issuance of a Major NSR 

permit, then under EPA’s interpretation 

of the Act and its rules, the Major NSR 

permit must be a PSD permit. See 

sections 160, 165, 172(c)(5) and 173 of 

the Act; and 40 CFR 51.165(a)(2)(i) and 

51.166(a)(7)(i). EPA’s interpretation of 

these statutory and regulatory 

requirements is guided by the 

memorandum issued March 11, 1991, 

and titled ‘‘New Source Review (NSR) 

Program Transitional Guidance,’’ by 

John S. Seitz, Director, Office of Air 

Quality Planning and Standard (1991 

Transitional Guidance).7

The revisions to 30 TAC 116.150(a), 

submitted June 10, 2005, and February 

1, 2006, were not clear as to when and 

where the applicability date will be set 

by the date the application is 

administratively complete and when 

and where the applicability date will be 

set by the issuance date of the 

authorization. The rule, adopted and 

submitted in 2005, relied on the date of 

administrative completeness of a permit 

application, not the date of permit 

issuance and applied to NSR 

authorizations that are administratively 

complete after June 15, 2004 (the 

effective date of eight-hour ozone 

nonattainment designations). The 

submitted 2006 rule added the date of 

permit issuance. Unfortunately, the 

2006 rule introduced a bifurcated 

structure which created vagueness 

rather than clarity. The effective date of 

that new bifurcated structure was 

February 1, 2006. It was unclear 

whether this revision meant that the 

permit issuance date was to be used in 

existing nonattainment areas designated 

nonattainment for ozone before and up 

through February 1, 2006. Thus, the 

proposed revision lacked clarity on its 

face and was therefore not enforceable. 

Furthermore, to the extent that the 

date of application completeness was 

used in certain instances to establish the 

applicability date for NNSR 

requirements, such use is contrary to 

EPA’s interpretation of the Act and the 

governing EPA regulations, as discussed 

above. 

Thus, based upon the above and in 

the absence of any explanation by the 

State, EPA disapproved the SIP revision 

submittals for not meeting the Major 

NNSR SIP requirements for the 1997 

eight-hour ozone standard. See 75 FR 

56424, at 56431–56432 and 56433. 

C. What did Texas submit to address the 

grounds for disapproval? 

On March 11, 2011–1, the TCEQ 

amended 30 TAC 116.150(a) to apply its 

requirements as of the date of issuance 

of the permit. 

D. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

The submitted revision to 30 TAC 

116.150 now applies its requirements as 

of the date of issuance of the permit. 

This amendment satisfies the 

requirements of sections 160, 165, 

172(c)(5), and 173 of the Act; and 40 

CFR 51.165(a)(2)(i) and 51.166(a)(7)(i). It 

also meets EPA’s interpretation of these 

statutory and regulatory requirements as 

guided by the 1991 Transitional 

Guidance. These revisions satisfy the 

requirements for SIP approval. 

Accordingly, EPA proposes to approve 

the submitted revisions to 30 TAC 

116.150 as described above. 

IV. What action is EPA proposing to 

take on the Major NSR Reform Program 

with Plantwide Applicability Limit 

(PAL) provisions? 

A. Background 

On September 15, 2010, EPA 

disapproved provisions of the SIP 

revisions submitted February 1, 2006, 

which relate to the Major NSR Reform 

Program with Plantwide Applicability 

Limit (PAL) provisions. The reasons for 

this disapproval are described below. 

B. EPA’s Evaluation of the Grounds for 

Disapproval and Texas’ Revisions To 

Address These Grounds 

1. The February 1, 2006, SIP Submittal 

Lacked a Provision That Limits 

Applicability of a PAL to an Existing 

Major Stationary Source 

a. What were the grounds for the 

September 15, 2010, disapproval? 

The February 1, 2006, submittal failed 

to limit the applicability of PALs to 

existing major stationary sources, as 

required under 40 CFR 51.165(f)(1)(i) 

and 40 CFR 51.166(w)(1)(i). In EPA’s 

November 2002 Technical Support 

Document for the revised Major NSR 

Regulations,8 we state on pages I–7–27 

and 28 that actuals PALs are available 

only for existing major stationary 

sources, because actuals PALs are based 

on a source’s actual emissions. Without 

at least 2 years of operating history, a 

stationary source has not established 

actual emissions upon which to base an 

actuals PAL. This is consistent with 

EPA’s longstanding interpretation of the 

Act. Therefore, an actuals PAL can be 

obtained only for an existing major 

stationary source.9 10 See 75 FR 56424, 

at 56433, 56435, and 56438. 

b. What did Texas submit to address the 

grounds for disapproval? 

On March 11, 2011–2, TCEQ 

submitted a revision to 30 TAC 116.180 

that added a new paragraph (a)(5) which 

restricted the issuance of PAL permits to 

existing major stationary sources. This 

revision only addressed the ground for 

disapproval for nonattainment 

pollutants but failed to provide a 

corresponding requirement for 

addressing this ground in the case of 

PSD pollutants. 

In the State’s February 22, 2012, 

proposed rulemaking parallel reviewed 

by EPA for this proposal action, the 

TCEQ proposed two revisions to 

paragraph (a)(5) as follows: (1), TCEQ 

proposed to correct the citation to the 

Federal definition of ‘‘major stationary 

source’’ in 40 CFR 51.165 (applicable to 

nonattainment pollutants); and (2) 

TCEQ proposed to add a citation of the 

definition of ‘‘major stationary source’’ 

in 40 CFR 51.166 (applicable to PSD 

pollutants). 

c. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

As described above, the revisions to 

30 TAC 116.180(a)(5) submitted March 

11, 2011–2, and the revisions proposed 

February 22, 2012, and reviewed by 

EPA for this proposal action revise this 

section to provide that a PAL can only 


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be issued for an existing major 

stationary source as defined in 40 CFR 

51.165(a)(1)(iv)(A) and 40 CFR 

51.166(b)(1). These revisions fully 

address this ground for disapproval of 

the submitted PAL Program. 

Accordingly, EPA proposes to approve 

these amendments to 30 TAC 

116.180(a)(5) as submitted March 11, 

2011–2, and the proposed amendments 

to this rule proposed February 22, 2012. 

2. The February 1, 2006, SIP Submittal 

Had No Provisions That Relate to PAL 

Re-Openings 

a. What were the grounds for the 

September 15, 2010, disapproval? 

The February 1, 2006, SIP submittal 

had no provisions that relate to PAL reopenings, as required by 40 CFR 

51.165(f)(8)(ii) and 51.166(w)(8)(ii). The 

Federal rules provide for PAL reopenings for the following: correction of 

typographical/calculation errors in 

setting the PAL; reduction of the PAL to 

create creditable emission reductions for 

use as offsets; reductions to reflect 

newly applicable Federal requirements 

(for example, New Source Performance 

Standards (NSPS)) with compliance 

dates after the PAL; PAL reduction 

consistent with any other requirement, 

that is enforceable as a practical matter, 

and that the State may impose on the 

major stationary source under the SIP; 

and PAL reduction if the reviewing 

authority determines that a reduction is 

necessary to avoid causing or 

contributing to a NAAQS or PSD 

increment violation, or an adverse 

impact on an air quality related value 

that has been identified for a Federal 

Class I area by a Federal Land Manager 

for which information is available to the 

general public. Texas had submitted no 

demonstration, as required for a 

customized Major NSR SIP revision 

submittal, that the lack of provisions for 

PAL re-openings is at least as stringent 

as the Federal PAL Program SIP 

requirements. See 75 FR 56424, at 

56433, 56435–56436, and 56438. 

b. What did Texas submit to address the 

grounds for disapproval? 

In revisions submitted March 11, 

2011–2, TCEQ addressed this issue by 

the addition of 30 TAC 116.192(c) 

which provides that during the PAL 

effective period the Executive Director 

shall reopen a PAL: to correct 

typographical calculation errors made in 

setting the PAL or to reflect a more 

accurate determination of emissions 

used to establish a PAL; to decrease the 

PAL limit that the owner or operator of 

a major stationary source creates to 

establish creditable emissions 

reductions that meet the requirements of 

40 CFR 51.165(a)(3)(ii) for use as offsets; 

and to revise the PAL to reflect an 

increase in the PAL provided the owner 

or operator complies with the 

requirements of 40 CFR 52.21(aa)(11) 

and 51.165(f)(11). 

This revision also provides that the 

Executive Director may reopen a PAL: to 

revise the PAL to reflect newly 

applicable Federal requirements (for 

example, NSPS) with compliance dates 

after the PAL effective date; to revise the 

PAL to be consistent with any other 

requirement that is enforceable as a 

practical matter and that the State may 

impose on the major stationary source 

under the SIP; or to reduce the PAL if 

the reviewing authority determines that 

a reduction is necessary to avoid 

causing or contributing to a NAAQS or 

PSD increment violation, or to an 

adverse impact on an air quality related 

value that has been identified for a 

Federal Class I area by a Federal Land 

Manager for which information is 

available to the general public. 

c. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

As discussed above, the revisions 

submitted March 11, 2011–2 to 30 TAC 

116.192(c) and TCEQ’s evaluation of 

these revisions meet the requirements of 

40 CFR 51.165(f)(8)(ii) and 

51.166(w)(8)(ii). Accordingly, EPA 

proposes to approve the revisions to 30 

TAC 116.192(c) submitted March 11, 

2011–2. 

3. There Was No Mandate That Failure 

To Use a Monitoring System That Meets 

the Requirements in the PAL Renders 

the PAL Invalid 

a. What were the grounds for the 

September 15, 2010, disapproval? 

The rules submitted February 1, 2006, 

had no provision requiring that the 

failure to use a monitoring system that 

meets the requirements for a PAL 

renders the PAL invalid, as required by 

40 CFR 51.165(f)(12)(i)(D) and 

51.166(w)(12)(i)(d). See 75 FR 56424, at 

56433 and 56438. 

b. What did Texas submit to address the 

grounds for disapproval? 

On March 11, 2011–2, TCEQ 

submitted revisions to 30 TAC 116.186 

that added a new paragraph (b)(9) to 

provide that ‘‘[f]ailure to use a 

monitoring system that meets the 

minimum requirements of this section is 

a violation of the PAL permit.’’ 

In the State’s February 22, 2012, 

proposed parallel rulemaking parallel 

reviewed by EPA for this proposal 

action, TCEQ proposed revisions to 

paragraph (b)(9) to remove the text ‘‘is 

a violation of the PAL permit’’ and 

replaced that text with ‘‘renders the PAL 

invalid.’’. 

c. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

The revision submitted March 11, 

2011–2, to add 30 TAC 116.186(b)(9), 

differed from the Federal requirements 

at 40 CFR 51.165(f)(12)(i)(D) and 

51.166(w)(12)(i)(d). The submitted rule 

provided that failure to use a monitoring 

system that meets the minimum 

requirements of this section is a 

violation of the PAL permit, whereas the 

Federal requirements provide that such 

failure renders the PAL permit invalid. 

By providing that such failure to use a 

required monitoring system is simply a 

violation of the PAL permit, the source 

retained its PAL notwithstanding the 

enforcement liability that could result 

from such failure to use the required 

monitoring and did not comport with 

the Federal requirement that provides 

that failure to use the required 

monitoring renders the PAL invalid. As 

submitted March 11, 2011–2, paragraph 

(b)(9) does not meet the requirements 

for SIP approval. However, the revision 

proposed February 22, 2012, would 

amend paragraph (b)(9) to state that 

failure to use the required monitoring 

would render the PAL permit invalid. 

In the State’s February 22, 2012, 

proposed rulemaking parallel reviewed 

by EPA for this proposal action, TCEQ 

proposes to amend 30 TAC 

116.186(b)(9) to remove the language 

that failure to use the required 

monitoring is a violation of PAL permit 

and to replace it with language that 

provides that such failure renders the 

PAL Permit invalid. The State’s 

proposed February 22, 2012, rulemaking 

would meet the Federal requirements at 

40 CFR 51.165(f)(12)(i)(D) and 

51.166(w)(12)(i)(d). Accordingly, EPA 

proposes to approve 30 TAC 

116.186(b)(9) as submitted March 11, 

2011–2, and the revision proposed to 

this rule on February 22, 2012. 

4. The February 1, 2006, Submittal of 30 

TAC 116.182 and 116.186 Provided for 

an Emission Cap That May Not Account 

for All of the Emissions of a Pollutant 

at a Major Stationary Source 

a. What were the grounds for the 

September 15, 2010, disapproval? 

The February 1, 2006, submittal at 30 

TAC 116.182 and 116.186 provided for 

an emissions cap that may not account 

for all of the emissions of a pollutant at 

the major stationary source. Texas 

required the owner or operator to 


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11See section V.B.1 of this preamble for further 

discussion on how TCEQ addresses the use of 

‘‘facility’’ for ‘‘emissions unit’’ in its Non-PAL 

NNSR Program. 

12A similar issue in the Non-PAL Program is 

addressed in section V.B.3 of this preamble. 

submit a list of all facilities to be 

included in the PAL, such that not all 

of the facilities at the entire major 

stationary source may be specifically 

required to be included in the PAL. See 

30 TAC 116.182(1) and 116.186(a). 

However, the Federal rules require the 

owner or operator to submit a list of all 

emissions units at the source. See 40 

CFR 51.165(f)(3)(i) and 40 CFR 

51.166(w)(3)(i). The Texas submittal 

was unclear as to whether the PAL 

would apply to all of the emission units 

at the entire major stationary source and 

therefore appeared to be less stringent 

than the Federal rules. In the absence of 

any demonstration from the State, EPA 

disapproved 30 TAC 116.186 and 30 

TAC 116.182(1) as not meeting the 

revised Major NSR SIP requirements. 

See 75 FR 56424, at 56433–56434 and 

56438. 

b. What did Texas submit to address the 

grounds for disapproval? 

On March 11, 2011–2, Texas 

submitted the following revisions to 

address these grounds for disapproval: 

30 TAC 116.180, Applicability. The 

following revisions were submitted: 

• Removal of the term ‘‘account site’’ 

from 30 TAC 116.180(a)(1) and 

replacement with the term ‘‘existing 

major stationary source’’ to make this 

requirement more consistent with 

Federal requirements. Similar changes 

were made to 30 TAC 116.180(a)(3) and 

(4). 

• The term ‘‘facility’’ as defined in 

the Texas Clean Air Act (TCAA) was 

defined to correspond Federal term 

‘‘emissions unit,’’ by adding the 

language ‘‘or emissions unit’’ whenever 

the term facility is used (i.e., 30 TAC 

116.180(a)(3), (b) and (c)).11

• Additionally, the proposed 

revision’s use of the phrase ‘‘at a major 

stationary source’’ and the term 

‘‘emissions unit’’ in a corresponding 

fashion in this section and elsewhere in 

the Commission’s PAL rules was 

clarified, by adding the phrase ‘‘at a 

major stationary source’’ to each 

instance of the term ‘‘emissions unit.’’ 

This removed any ambiguity by 

clarifying that both terms are being used 

interchangeably and in a manner that is 

consistent with EPA’s use of the term in 

NSR permitting. 

30 TAC 116.182 Plant-Wide 

Applicability Limit Permit Application. 

To address EPA’s concern that 30 TAC 

116.182(1) might not require all 

facilities to be included in the PAL, the 

TCEQ amended 30 TAC 116.182(1) by 

adding the phrase ‘‘at a major stationary 

source’’ where appropriate to make clear 

that PALs are applicable to major 

sources only. Additionally, as the result 

of comments in the EPA’s final 

disapproval (75 FR 56424, September 

15, 2010), the TCEQ added language to 

require that all emission units at the 

major stationary source that emit the 

PAL pollutant be included in the PAL 

permit application. 

30 TAC 116.186 General and 

Special Conditions. To address EPA’s 

concern that 30 TAC 116.186 might not 

require all facilities to be included in 

the PAL, the TCEQ amended 30 TAC 

116.186 by adding the language ‘‘or 

emissions unit’’ where the term facility 

is used in subsection (a) and paragraph 

(b)(1) and changing the word ‘‘Federal’’ 

to ‘‘major’’ in paragraph (b)(1) to clarify 

the type of NSR referenced in this 

paragraph. Also, the TCEQ added the 

phrase ‘‘at a major stationary source’’ 

where appropriate to make clear that 

PALs are applicable to major stationary 

sources only. Also, as the result of 

comments in the EPA’s final 

disapproval, the TCEQ added language 

to require that all emission units at the 

major stationary source that emit the 

PAL pollutant be included in the PAL 

permit. 

c. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

As discussed above, the revisions 

submitted March 11, 2011–2, meet the 

requirements of 40 CFR 51.165(f)(3)(i) 

and 51.166(w)(3)(i). Accordingly, EPA is 

proposing to approve these revisions to 

30 TAC 116.180, 116.182, and 116.186. 

5. The February 1, 2006, Submittal of 

Baseline Actual Emissions Did Not 

Provide That Emissions Be Calculated 

in Terms of the Average Rate, in Tons 

per Year 

a. What were the grounds for the 

September 15, 2010, disapproval? 

The Federal definition of the 

‘‘baseline actual emissions’’ provides 

that these emissions must be calculated 

in terms of ‘‘the average rate, in tons per 

year, at which the unit actually emitted 

the pollutant during any consecutive 24- 

month period.’’ See 40 CFR 

51.165(a)(1)(xxxv)(A), (B), (D), and (E) 

and 51.166(b)(47)(i), (ii), (iv), and (v). 

Emphasis added. Texas’ February 1, 

2006, submittal of the definition of 

‘‘baseline actual emissions’’ at 30 TAC 

116.12(3)(A), (B), (D), and (E), differed 

from the Federal definition by providing 

that the baseline shall be calculated as 

‘‘the rate, in tons per year at which the 

unit actually emitted the pollutant 

during any consecutive 24-month 

period.’’ The definition omits reference 

to the ‘‘average rate.’’ The definition 

differed from the Federal definition but 

the State failed to provide a 

demonstration showing how the 

different definition is at least as 

stringent as the Federal definition. 

Therefore, EPA disapproved the 

different definition of ‘‘baseline actual 

emissions’’ found at 30 TAC 116.12(3) 

as not meeting the revised Major NSR 

SIP requirements. On the same grounds 

for lacking a demonstration, EPA 

disapproved 30 TAC 116.182(2) that 

refers to calculations of the baseline 

actual emissions for a PAL, as not 

meeting the revised Major NSR SIP 

requirements. See 75 FR 56424, at 

56434–56435, and 56438. 

b. What did Texas submit to address the 

grounds for disapproval? 

On March 11, 2011–2, the TCEQ 

submitted revisions to the definition of 

‘‘baseline actual emissions’’ at 30 TAC 

116.12(3)(A), (B), (D), and (E), that 

specify that the rate is an average rate. 

c. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

As described above, the submitted 

change to the definition of ‘‘baseline 

actual emissions’’ in 30 TAC 

116.12(3)(A), (B), (D), and (E), to specify 

that the rate is an average rate, now 

meets the Federal requirements under 

40 CFR 51.165(a)(1)(xxxv)(A), (B), (D), 

and (E) and 51.166(b)(47)(i), (ii), (iv), 

and (v). Accordingly, EPA is proposing 

to approve the revisions to 30 TAC 

116.12(3)(A), (B), (D), and (E). For 

further information see the TSD for this 

proposal.12

6. The State Failed To Include Specific 

Definitions of Continuous Emissions 

Monitoring System (CEMS), Continuous 

Emissions Rate Monitoring System 

(CERMS), Continuous Parameter 

Monitoring System (CPMS), and 

Predictive Emissions Monitoring System 

(PEMS) 

a. What were the grounds for the 

September 15, 2010, disapproval? 

The TCEQ failed to include the 

following specific monitoring 

definitions in the March 11, 2011–2, 

submittal: ‘‘continuous emissions 

monitoring system (CEMS)’’ as defined 

in 40 CFR 51.165(a)(1)(xxxi) and 

51.166(b)(43); ‘‘continuous emissions 

rate monitoring system (CERMS)’’ as 

defined in 40 CFR 51.165(a)(1)(xxxiv) 


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13This guidance is available on-line at http:// 

www.epa.gov/region07/air/title5/t5memos/ 

ptememo.pdf. 

14Section 110(l) of the Act provides that a SIP 

revision must not ‘‘interfere with any applicable 

requirement concerning attainment or reasonable 

further progress * * *, or any other applicable 

requirement of this Act.’’ 

15Here we state ‘‘[e]ver since our current NSR 

Regulations were adopted in 1980, we have taken 

the position that States may meet the requirements 

of part 51 ‘with different but equivalent 

regulations,’ 45 FR 52676.’’ 

and 51.166(b)(46); ‘‘continuous 

parameter monitoring system (CPMS)’’ 

as defined in 40 CFR 51.165(a)(1)(xxxiii) 

and 51.166(b)(45); and ‘‘predictive 

emissions monitoring system (PEMS)’’ 

as defined in 40 CFR 51.165(a)(1)(xxxii) 

and 51.166(b)(44). All of these 

definitions concerning the monitoring 

systems in the revised Major NSR SIP 

requirements are essential for the 

enforceability of and providing the 

means for determining compliance with 

a PALs program. Additionally, whereas 

here, a State has made a SIP revision 

that does not contain definitions that are 

required in the revised Major NSR SIP 

program, EPA may approve such a 

revision only if the State specifically 

demonstrates that, despite the absence 

of the required definitions, the 

submitted revision is more stringent, or 

at least as stringent, in all respects, as 

the Federal program. See 40 CFR 

51.165(a)(1) (non-attainment SIP 

approval criteria); 40 CFR 51.166(b) 

(PSD SIP definition approval criteria). 

Texas did not provide such a 

demonstration. Therefore, EPA 

disapproved the submitted rule based 

on the lack of these definitions as not 

meeting the revised Major NSR SIP 

requirements. See 75 FR 56424, at 56434 

and 56438. 

b. What did Texas submit to address the 

grounds for disapproval? 

On March 11, 2011–2, TCEQ 

submitted revisions to 30 TAC 

116.186(c)(1) which provided that the 

definitions of CEMS, CERMS, CPMS, 

and PEMS are the same as provided in 

40 CFR 51.165. 

c. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

The revisions described above 

incorporate the Federal definitions of 

CEMS, CERMS, CPMS, and PEMS into 

the State’s PAL Program and therefore 

meet the applicable Federal 

requirements. Accordingly, EPA 

proposes to approve the revisions to 30 

TAC 116.186(c)(1) which incorporates 

these definitions. 

C. Other Concerns With the Major NSR 

Reform Program With Plantwide 

Applicability Limit (PAL) Provisions 

1. Submittal of 30 TAC 116.12(23)— 

Definition of ‘‘Plant-Wide Applicability 

Limit Effective Date’’ 

a. Background 

On February 1, 2006, Texas submitted 

the definition of ‘‘plant-wide 

applicability limit effective date’’ at 30 

TAC 116.12(23). On September 15, 2010 

(75 FR 56424) EPA disapproved the 

Texas NSR Reform SIP revisions 

submitted February 1, 2006, including 

30 TAC 116.12(23). On March 11, 2011– 

2, Texas resubmitted 30 TAC 116.12(23) 

without additional changes. 

In the State’s February 22, 2012, 

proposed rulemaking parallel reviewed 

by EPA for this proposal action, TCEQ 

proposed to revise the definition to 

remove language that references the date 

that a Flexible Permit was issued. Since 

PAL Permits and Flexible Permits are 

addressed by two different sets of rules 

in Chapter 116, it is inappropriate to 

reference Flexible Permits in the 

definition of ‘‘plant-wide applicability 

limit effective date.’’ 

b. What is EPA’s evaluation of the 

submitted SIP revision of 30 TAC 

116.12(23)? 

The definition of ‘‘plant-wide 

applicability limit effective date’’ at 30 

TAC 116.12(23), submitted February 1, 

2006, and resubmitted March 11, 2011– 

2, includes a provision that such 

effective date for a PAL established in 

an existing Flexible Permit is the date 

that the Flexible Permit was issued. 

Because EPA disapproved Texas’ 

Flexible Permit Program on July 15, 

2010 (75 FR 41312), this provision 

appears to say that a source with a 

Flexible Permit could get a SIPapproved PAL that could retroactively 

recognize a prior Flexible Permit that 

should not have been issued. 

The State’s proposed February 22, 

2012, rulemaking reviewed by EPA for 

this proposal action would remove the 

reference to Flexible Permits from the 

definition of ‘‘plant-wide applicability 

limit effective date’’ at 30 TAC 

116.12(23). This will address these 

concerns. Accordingly, EPA proposes to 

approve the definition of ‘‘plant-wide 

applicability limit effective date’’ in 30 

TAC 116.12(23) as submitted March 11, 

2011–2, and the amendments proposed 

February 22, 2012, to remove the 

language that refers to Flexible Permits. 

2. Submittal of 30 TAC 116.12(22)— 

Definition of ‘‘Plant-Wide Applicability 

Limit’’—and 30 TAC 116.186(a) 

a. Background 

The TCEQ submitted this definition 

on March 11, 2011–2. This definition 

does not specifically provide that the 

emission limitation in a PAL must be 

‘‘enforceable as a practical matter’’ or 

‘‘practical enforceability’’ as required by 

40 CFR 51.165(f)(2)(v) and 

51.166(w)(2)(v). Similarly, the 

provisions of 30 TAC 116.186(a), 

submitted on March 11, 2011–2, 

likewise do not specifically provide that 

the emission limitation in a PAL must 

be ‘‘enforceable as a practical matter’’ as 

required by 40 CFR 51.165(f)(4)(i)(A) 

and 51.166(w)(4)(i)(a). The omission of 

the requirement that the PAL be 

enforceable as a practical matter raises 

the question of how the rules meet 

Federal enforceability requirements. 

b. What is EPA’s evaluation of the 

submitted revisions to 30 TAC 

116.12(22) and 116.186(a)? 

The 2002 NSR Reform rule discusses 

practical enforceability in the preamble 

of its NSR Reform rule. Here we say that 

‘‘[p]ractical enforceability for a sourcespecific permit will be achieved if the 

permit’s provisions specify: (1) A 

technically accurate limitation and the 

portions of the source subject to the 

limitation; (2) the time period for the 

limitation (hourly, monthly, and annual 

limits such as rolling annual limits); and 

(3) the method to determine 

compliance, including appropriate 

monitoring, recordkeeping, and 

reporting.’’ See 67 FR 80186, at 80190– 

80191, December 31, 2002. For PALs, 

EPA discussed the monitoring, 

recordkeeping, and reporting 

requirements for a PAL and 

characterized these requirements as 

addressing a number of issues 

associated with practical enforceability 

of PALs. See 67 FR 80186, at 80211– 

80214. 

EPA’s interpretation of the term 

‘‘practical enforceability’’ in the context 

of the CAA is discussed in the guidance 

memorandum Options for Limiting the 

Potential to Emit (PTE) of a Stationary 

Source Under Section 112 and Title V 

of the Clean Air Act (Act), by John S. 

Seitz, Director, Office of Air Quality 

Planning and Standards, and Robert I. 

Heuvelen, Director, Office of Regulatory 

Enforcement, dated January 25,1995.13

See pages 46 and 47 of the guidance. 

On May 3, 2012, the TCEQ forwarded 

a letter to EPA which includes a written 

demonstration as required by 40 CFR 

51.165(a)(1) and 51.166(b); section 

110(l) of the CAA 14; and the discussion 

at 67 FR 80186, at 80341 (December 31, 

2002) 15 for how the definition of 

‘‘plantwide applicability limit’’ provides 

that emission limits in its PAL Permits 

meets the Federal requirements for 


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16The federal rules at 40 CFR 51.165(f)(2)(v), 

51.165(f)(4)(i)(A), 51.166(w)(2)(v), and 

51.166(w)(4)(i)(a) rules provide that the PAL must 

be enforceable as a practical matter. The omission 

of this requirement raises the question of how the 

rules meet federal enforceability requirements and 

is critical to the enforceability of a PAL. 

Accordingly, if the plan lacks such requirement, 

there must be a demonstration how the State has 

ensured that the PAL is enforceable as a practical 

matter or that the State otherwise has the ability to 

enforce the PAL in the absence of practical 

enforceability. 

17The federal rules at 40 CFR 51.165(f)(12)(i) and 

51.166(w)(12)(i) include requirements relating to 

the information generated by a PAL monitoring 

system. Among the requirements is that the 

information generated by such monitoring system 

must meet minimum legal requirements for 

admissibility in a judicial proceeding to enforce the 

PAL Permit. EPA considers the admissibility of 

monitoring data critical to a State’s ability to 

enforce a regulatory requirement, including a PAL 

Permit requirement. Accordingly, if the plan lacks 

such requirement, there must be a demonstration 

that the State has the ability to enforce the PAL 

based upon the information generated by the 

monitoring system. 

being enforceable as a practical 

matter.16 In its letter TCEQ 

acknowledges that a practically 

enforceable permit includes conditions 

which establish clear legal obligations 

and allow compliance with these 

obligations to be verified. TCEQ further 

acknowledges that EPA’s final PAL 

rules discuss the PAL monitoring, 

recordkeeping, and reporting 

requirements and characterizes these 

requirements as addressing a number of 

issues associated with the practical 

enforceability of PALs. TCEQ discussed 

how its PAL program meets the 

requirements for practical enforceability 

in each of the three elements identified 

in the 2002 NSR Reform Rule at 67 FR 

80186, at 80190–80191 as follows: 

• A technically accurate limitation 

and the portions of the source subject to 

the limitation. Texas established its PAL 

Program based on 30 TAC 116.180, 

116.182, and 116.186(a). These rules 

satisfy the requirements of 40 CFR 

51.165(f)(3)(i), (f)(4)(i)(A) and (E), and 

(f)(6)(1) and 40 CFR 51.166(w)(3)(i), 

(w)(4)(i)(a) and (e), and (w)(6)(1). These 

rules meet the Federal requirements for 

establishing a technically accurate 

limitation for a PAL and identifies that 

all emissions units at the major 

stationary source that will be subject to 

the PAL. This ensures that the TCEQ’s 

PAL meets this requirement for practical 

enforceability. 

• The time period for the limitation 

(hourly, monthly, and annual limits 

such as rolling annual limits). Texas’ 

rules state that the PAL limit must be 

met on a 12-month rolling average (30 

TAC 116.182(3) and 116.186(a)). These 

rules meet the Federal requirements at 

40 CFR 51.165(f)(4)(i)(A) & (E) and 

51.166(w)(4)(i)(a) and (e) and therefore 

ensure that the PAL Program and PAL 

permits issued under the program meet 

this requirement for practically 

enforceable. 

• The method to determine 

compliance, including appropriate 

monitoring, recordkeeping, and 

reporting. Texas’ rules at 30 TAC 

116.186 include detailed monitoring, 

recordkeeping, and reporting that is 

consistent with the Federal PAL 

requirements. These monitoring, 

recordkeeping, and reporting provisions 

also meet this requirement for practical 

enforceability. Specific requirements are 

at 30 TAC 116.186(b)(4) and (8), and (c) 

which meet the Federal requirements at 

40 CFR 51.165(f)(13)–(14) and 

51.166(w)(13) (14). These monitoring, 

recordkeeping, and reporting provisions 

meet Federal PAL requirements and 

ensure that the program and PAL 

permits meets this requirement for 

practically enforceable. 

The May 3, 2012, letter is included in 

the docket for this proposed rule. 

Accordingly, EPA is proposing to 

approve 30 TAC 116.12(22) submitted 

March 11, 2011–2, and 30 TAC 

116.186(a) as submitted March 11, 

2011–2, consistent with the 

demonstration included in the May 3, 

2012, letter. 

3. Submittal of 30 TAC 116.186(c)(2) 

Does Not Specifically Provide That 

Monitoring Data Must Meet Minimum 

Legal Requirements for Admissibility in 

a Judicial Proceeding To Enforce the 

PAL 

a. Background 

On February 1, 2006, TCEQ submitted 

30 TAC 116.186(c)(1) which provided 

that the PAL monitoring system must 

accurately determine all emissions of 

the PAL pollutant in terms of mass per 

unit of time. It further provided that any 

such monitoring system must be based 

upon sound science and it must meet 

generally accepted scientific procedures 

for data quality and manipulation. 

Finally, this rule provided that the 

information generated by such 

monitoring system must meet minimum 

legal requirements for admissibility in a 

judicial proceeding to enforce the PAL 

Permit. As submitted, this provision met 

the Federal requirements of 40 CFR 

51.165(f)(12)(i) and 51.166(w)(12)(i). 

On March 11, 2011–2, the TCEQ 

resubmitted this rule, now designated as 

30 TAC 116.186(c)(2), and which 

included a revision which removed the 

requirement that the information 

generated by such monitoring system 

must meet minimum legal requirements 

for admissibility in a judicial 

proceeding to enforce the PAL Permit. 

EPA considers the admissibility of 

monitoring data critical to a State’s 

ability to enforce a regulatory 

requirement, including a PAL Permit 

requirement. 

b. What is EPA’s evaluation of the 

submitted SIP revision of 30 TAC 

116.186(c)(2)? 

On May 3, 2012, the TCEQ forwarded 

a letter to EPA which includes a written 

demonstration consistent with EPA’s 

implementation of section 110(l) of the 

CAA; and the discussion at 67 FR 

80186, at 80341 (December 31, 2002); on 

how the data from a monitoring system 

meets the minimum legal requirements 

for admissibility in a judicial 

proceeding to enforce the PAL Permit.17

In its letter TCEQ referred to its statutes 

and rules which establish the 

jurisdiction of the TCEQ, as well as 

permit conditions, which require 

owners and operators of facilities that 

may emit air contaminants which are 

authorized for construction and 

operation to maintain data necessary to 

demonstrate compliance with the terms 

and conditions of their authorizations. 

That authority is found in Tex. Health 

& Safety Code Sections 382.011, 

382.012, 382.014, 382.016, 382.051, 

382.0513, 382.0514, and 382.0515; Tex. 

Water Code sections 5.013(a)(11), 7.179, 

7.180, and 7.181; and TCEQ rules 30 

TAC 116.111, 116.115 (which are, for 

the most part, SIP approved). 

Additionally, the Texas Legislature has 

provided the TCEQ with the 

enforcement authority in Tex. Water 

Code Chapter 7 to initiate an action to 

enforce the statutes within the 

jurisdiction of the TCEQ, such as 30 

TAC 7.179, 7.180, and 7.181. 

The TCEQ adopted the requirement 

that the Texas Rules of Evidence, as 

applied in nonjury civil cases in the 

district courts of the State, be followed 

in all hearings. See 30 TAC 80.127. The 

initial factor affecting admissibility is 

relevance, and the relevance of offered 

evidence—evidence of non-compliance 

in an enforcement hearing—will 

support admissibility. However, if the 

data is not sufficient to support 

admissibility, or is non-existent, then 

the Executive Director of TCEQ may 

pursue an enforcement action for failing 

to maintain the data necessary to 

demonstrate compliance. 

The May 3, 2012, letter is included in 

the docket for this proposed rule. 

Accordingly, EPA is proposing to 

approve 30 TAC 116.186(c)(2) submitted 

March 11, 2011–2, consistent with the 

demonstration included in the May 3, 

2012, letter. 


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18The federal rules at 40 CFR 51.165(f)(7)(iv) and 

51.166(w)(7)(iv) require that for purposes of 

enforcement of a PAL, the emission calculations 

must include emissions from startups, shutdowns, 

and malfunctions. The inclusion of these emissions 

is critical to the enforcement of the PAL. 

Accordingly, if the plan lacks such requirement, 

there must be a demonstration that the State has the 

ability to enforce the PAL. 

19Letter from John Steib, Deputy Director, TCEQ 

Office of Compliance & Enforcement to John 

Blevins, Director, Compliance Assurance and 

Enforcement Division, USEPA, Region-6 Dallas, 

April 17, 2007. 

20The February 1, 2006, submittal was 

resubmitted March 11, 2011–1. 

21 ‘‘Facility’’ is defined in the SIP approved 30 

TAC 116.10(6) as ‘‘a discrete or identifiable 

structure, device, item, equipment, or enclosure 

that constitutes or contains a stationary source, 

including appurtenances other than emission 

control equipment.’’ 

22These requirements are addressed in sections 

III and IV of this preamble. 

23See section IV.B.4 of this preamble for further 

discussion on how TCEQ addressed the use of 

‘‘facility’’ for ‘‘emissions unit’’ in its PAL Program. 

4. Submittal of 30 TAC 116.186(a) 

a. Background 

On March 11, 2011–2, TCEQ 

submitted 30 TAC 116.186(a). This rule 

provides that the PAL limit will be 

enforced on a 12-month rolling average. 

However, this rule does not clearly 

specify that for compliance purposes, 

the emission calculations must include 

emissions from startups, shutdowns, 

and malfunctions, as required by 40 

CFR 51.165(f)(7)(iv) and 

51.166(w)(7)(iv). 

b. What is EPA’s evaluation of the 

submitted SIP revision of 30 TAC 

116.186(a)? 

On May 3, 2012, the TCEQ forwarded 

a letter to EPA which included a written 

demonstration consistent with EPA’s 

implementation of 40 CFR 51.165(a)(1) 

and 51.166(b); section 110(l) of the 

CAA; and the discussion at 67 FR 

80186, at 80341 (December 31, 2002); on 

how TCEQ addresses emissions from 

startups, shutdowns, and malfunctions, 

in the enforcement of its PAL Permits.18

In this letter, the TCEQ states that a PAL 

permit limit can be generally enforced 

like any other permit limit, and the 

TCEQ has authority to enforce all permit 

requirements. This authority is found in 

Tex. Water Code, Chapter 7, and Tex. 

Health & Safety Code sections 382.011, 

382.015, 382.016, 382.0515, 382.0516, 

382.022, 382.023, and 382.085, as well 

as in certain rules found in 30 TAC 

Chapter 101, Subchapters A and F. In 

addition, TCEQ rule 30 TAC 101.201 

requires regulated entities, regardless of 

whether they have a PAL permit, to 

record (and in some cases report) 

emissions events, which includes 

unscheduled maintenance, startup, and 

shutdown (MSS) activity emissions. 

Emissions from malfunctions are 

unauthorized emissions as defined in 30 

TAC 101.1(107); therefore, they are 

unauthorized (non-compliant) 

emissions. Exceedances of a PAL limit, 

such as emissions from malfunctions, 

are unauthorized emissions and are 

subject to enforcement. TCEQ 

represented to EPA Region 6 that 

unscheduled MSS activity emissions are 

functionally equivalent to EPA’s 

definition of malfunction.19

Furthermore, Texas’ PAL also requires 

semiannual reports which include ‘‘the 

total annual emissions (in tons per year) 

based upon a 12-month rolling total for 

each month in the reporting period.’’ 

See 30 TAC 116.186(b)(4)(C)(ii). 

Emphasis added. This requires reporting 

of all emissions from the PAL, including 

authorized and unauthorized emissions. 

The May 3, 2012, letter is included in 

the docket for this proposed rule. 

Accordingly, EPA is proposing to 

approve 30 TAC 116.186(a) as submitted 

March 11, 2011–2 consistent with the 

demonstration included in the May 3, 

2012, letter. 

V. What action is EPA proposing to take 

on the non-PAL aspects of the major 

NSR SIP requirements? 

A. Background 

On September 15, 2010, EPA 

disapproved these provisions for the 

reasons described below. 

B. EPA Evaluation of the Grounds for 

Disapproval and Texas’ Revisions To 

Address These Grounds 

1. The March 11, 2011–1 Submitted 

Rule Did Not Explicitly Limit the 

Definition of ‘‘Facility’’ to an Emissions 

Unit 

a. What were the grounds for the 

September 15, 2010, disapproval? 

The NNSR non-PAL rules at 30 TAC 

116.150 and 116.151, submitted 

February 1, 2006,20 did not explicitly 

limit the definition of ‘‘facility’’ 21 to an 

‘‘emissions unit’’ as do the submitted 

PAL rules and approved PSD non-PAL 

rules. It is our understanding of State 

law that a ‘‘facility’’ can be an 

‘‘emissions unit,’’ i.e., any part of a 

stationary source that emits or may have 

the potential to emit any air 

contaminant, as the State explicitly 

provides in the revised PSD rule at 30 

TAC 116.160(c)(3). A ‘‘facility’’ also can 

be a piece of equipment, which is 

smaller than an ‘‘emissions unit.’’ A 

‘‘facility’’ can include more than one 

‘‘major stationary source.’’ It can 

include every emissions point on a 

company site, without limiting these 

emissions points to only those 

belonging to the same industrial 

grouping (SIC code). Regardless, the 

State clearly thought the prudent legal 

course was to limit ‘‘facility’’ explicitly 

to ‘‘emissions unit’’ in its PSD SIP nonPALs rules. TCEQ did not submit a 

demonstration showing how the lack of 

this explicit limitation in the non-PALs 

NNSR SIP revision is at least as 

stringent as the revised Major NSR SIP 

requirements. Therefore, EPA 

disapproved the submitted non-PAL 

NNSR rules and its use as not meeting 

the revised Major NNSR non-PALs SIP 

requirements. See 75 FR 56424, at 

56438, 56439–56440, and 56443. 

b. What did Texas submit to address the 

grounds for disapproval? 

In its SIP revisions submitted March 

11, 2011–1 and March 11, 2011–2, 

Texas did not address these grounds 

relating to the use of the term ‘‘facility’’ 

for ‘‘emissions unit’’ in its non-PAL 

aspects of the Major Source SIP 

requirements for NNSR. In the March 

11, 2011–1, submittal, the revisions to 

30 TAC 116.150 only relate to the 

antibacksliding Major NSR SIP 

requirements for the one-hour ozone 

NAAQS, and the Major Nonattainment 

NSR SIP requirements for the 1997 

eight-hour ozone NAAQS.22 In the 

March 11, 2011–2 submittal, Texas only 

discussed the use of ‘‘facility’’ for the 

term ‘‘emissions unit’’ in relation to its 

changes to its PAL rules at 30 TAC 

116.180, 116.182, 116.186, and 116.190. 

In each of these PAL rules, TCEQ states 

that the Federal term ‘‘emissions unit’’ 

is defined very similarly to the term 

‘‘facility’’ as defined in the TCCA. In 

these PAL rules, the TCEQ added the 

language ‘‘or emissions unit’’ whenever 

the term ‘‘facility’’ is used.23

In the State’s February 22, 2012, 

proposed rulemaking parallel reviewed 

by EPA for this proposal action, TCEQ 

proposed revisions to 30 TAC 116.150 

and 116.151. To ensure clarity, TCEQ 

proposed to add the language ‘‘or 

emissions unit’’ where the terms 

‘‘facility’’ or ‘‘facilities’’ are used. The 

TCEQ proposed this change in 30 TAC 

116.150(a), (d)(1), and (d)(3) and in 30 

TAC 116.151(a), (c)(1), and (c)(3), and 

requested parallel processing of these 

proposed revisions. 

c. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

As discussed above, the submittals 

dated March 11, 2011–1 and March 11, 

2011–2, did not address how TCEQ 

limits the definition of ‘‘facility’’ to an 

‘‘emission unit’’ in the Non-PAL 


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24The definition of ‘‘baseline actual emissions,’’ 

in 30 TAC 116.12(3)(E) submitted February 1, 2006, 

provided: ‘‘* * * Until March 1, 2016, emissions 

previously demonstrated as emissions events or 

historically exempted under Chapter 101 of this 

title * * * may be included to the extent they have 

been authorized, or are being authorized, in a 

permit action under Chapter 116. 30 TAC 

116.12(3)(E).’’ (Emphasis added.) 

Aspects of the Major NSR SIP 

Requirements in 30 TAC 116.150 and 

116.151. The TCEQ did not submit a 

demonstration in these submittals 

showing how the lack of this explicit 

limitation in the NNSR SIP non-PALs 

revision is at least as stringent as the 

revised Major NSR SIP requirements. 

However, the State’s proposed 

February 22, 2012, rulemaking parallel 

reviewed by EPA for this proposal 

action, addresses the use of the term 

‘‘facility’’ for ‘‘emissions unit’’ as used 

in 30 TAC 116.150 and 116.151. 

The revisions submitted March 11, 

2011–1 for non-PAL NNSR include 30 

TAC 116.150, New Major Source or 

Major Modification in Ozone 

Nonattainment Area, and 30 TAC 

116.151, New Major Source or Major 

Modification in Ozone Nonattainment 

Area. In these sections, TCEQ uses the 

term ‘‘facility’’ in 30 TAC 116.150(a), 

(d)(1) and (d)(3) and in 30 TAC 

116.151(a), (c)(1), and (c)(3). In the 

State’s February 22, 2012, proposed 

rulemaking, TCEQ proposed to revise 

these paragraphs to add the language 

‘‘or emissions unit’’ following each use 

of ‘‘facility’’ to ensure clarity and 

consistency with Federal requirements. 

The TCEQ stated that the Federal term 

‘‘emissions unit’’ as defined in Federal 

rules is similar to the term ‘‘facility’’ as 

defined in the Texas Clean Air Act. The 

TCEQ addressed this matter in the 

following statements: 

A facility may constitute or contain a 

stationary source—a point of origin of a 

contaminant, as defined in THSC, 

§ 382.003(12) and in § 116.10(15), a 

definition that is approved into the Texas 

SIP. As a discrete point, a facility can 

constitute but cannot contain a ‘‘major 

stationary source’’ as defined by federal law 

and in the TCEQ’s SIP approved rule 

§ 116.12(17). A facility is subject to major and 

minor NSR requirements, depending on the 

facts of the specific application. 

See the TCEQ February 22, 2012, 

proposal, page 3. TCEQ further stated: 

The TCEQ and its predecessor agencies 

have consistently interpreted facility to 

preclude inclusion of more than one 

stationary source, in contrast to EPA’s stated 

understanding. Likewise, TCEQ does not 

interpret facility to include ‘‘every emissions 

point on a company site, even if limiting 

these emission points to only those belonging 

to the same industrial grouping (SIC code).’’ 

The federal definition of ‘‘major stationary 

source’’ in 40 Code of Federal Regulations 

(CFR) 51.166(b)(1)(i)(a) is not equivalent to 

the state definition of ‘‘source.’’ A ‘‘major 

stationary source’’ can include more than one 

‘‘facility’’ as defined under Texas law, which 

is consistent with EPA’s interpretation of a 

‘‘major stationary source’’ including more 

than one emissions unit. 

Under major NSR, EPA uses the term 

‘‘emissions unit’’ (generally) when referring 

to part of a ‘‘stationary source;’’ TCEQ 

translates ‘‘emissions unit’’ to mean 

‘‘facility.’’ The commission’s SIP-approved 

Prevention of Significant Deterioration (PSD) 

permitting rule in § 116.160(c)(3) states, 

‘‘{t}he term ‘facility’ shall replace the words 

‘emissions unit’ in the referenced sections of 

the CFR.’’ 

The above interpretation of the term 

‘‘facility’’ has been consistently applied by 

the TCEQ and its predecessor agencies for 

more than 30 years. The TCEQ’s 

interpretation of Texas statutes enacted by 

the Texas Legislature is addressed by the 

Texas Code Construction Act. More 

specifically, words and phrases that have 

acquired a technical or particular meaning, 

whether by legislative definition or 

otherwise, shall be construed accordingly, as 

per Texas Government Code, § 311.011(b). 

In response to the proposed disapproval, 

the commission proposed adding the phrase 

‘‘or emissions unit’’ in its PAL rules, but did 

not do so in the nonattainment permitting 

rules because of the long term use of the term 

in the Texas permitting rules and the 

approved Texas SIP, which included earlier 

versions of these rules, and because in the 

intervening time EPA had approved the 

definition of ‘‘facility’’ into the SIP. 

The proposed changes to § 116.150 and 

§ 116.151 would allow EPA to approve the 

updated rules that implement the federal 

nonattainment permitting program. 

See the TCEQ February 22, 2012, 

proposal, pages 4 through 7. 

As discussed above, the TCEQ in its 

February 22, 2012, proposed rulemaking 

parallel reviewed by EPA for this 

proposal action, provides a 

demonstration that for the purposes of 

30 TAC 116.150 and 116.151, the use of 

the term ‘‘facility’’ is the same as the use 

of the term ‘‘emissions unit.’’ The 

changes proposed for 30 TAC 116.150 

and 116.151 are the same changes 

adopted in the TCEQ’s PAL Program, 

submitted March 11, 2011–2, to address 

that ‘‘emissions unit’’ means ‘‘facility.’’ 

The proposed changes are also 

consistent with the approved Texas PSD 

Program at 30 TAC 116.160(c)(3) which 

states ‘‘{t}he term ‘facility’ shall replace 

the words ‘emissions unit’ ’’ in the 

referenced sections of the CFR. 

Accordingly, EPA is proposing to 

approve the revisions to 30 TAC 

116.150 and 116.151 submitted March 

11, 2011–1 and the revisions proposed 

on February 22, 2012. 

2. The Definition of ‘‘Baseline Actual 

Emissions’’ Submitted March 11, 2011– 

2, to 30 TAC 116.12(3)(E) Did Not 

Require the Inclusion of Emissions 

Resulting From Startups, Shutdowns, 

and Malfunctions, as Required Under 

Federal Regulations 

EPA disapproved the definition of 

‘‘baseline emissions’’ as submitted 

February 1, 2006, in 30 TAC 

116.12(3)(E) because it does not require 

the inclusion of emissions resulting 

from startups, shutdowns, and 

malfunctions, as required under Federal 

regulations. 

a. What were the grounds for the 

September 15, 2010, disapproval? 

Under the Major NSR SIP 

requirements, for any physical or 

operational change at a major stationary 

source, a source must include emissions 

resulting from startups, shutdowns, and 

malfunctions, in its determination of 

baseline actual emissions (40 CFR 

51.165(a)(1)(xxxv)(A)(1) and (B)(1) and 

51.166(b)(47)(i)(a) and (ii)(a)) and 

projected actual emissions (40 CFR 

51.165(a)(1)(xxviii)(B) and 

51.166(b)(40)(ii)(b)). The definition of 

the term ‘‘baseline actual emissions,’’ as 

submitted February 1, 2006, in 30 TAC 

116.12(3)(E), did not require the 

inclusion of emissions resulting from 

startups, shutdowns, and 

malfunctions.24 Our understanding of 

State law is that the use of the term 

‘‘may’’ creates discretionary authority or 

grants permission or a power. See 

Section 311.016 of the Texas Code 

Construction Act. Similarly, the 

submitted definition of ‘‘projected 

actual emissions’’ at 30 TAC 116.12(29) 

does not require that emissions resulting 

from startups, shutdowns, and 

malfunctions be included. These 

submitted definitions differed from the 

Federal SIP definitions and the State 

had not provided information 

demonstrating that these definitions are 

at least as stringent as the Federal SIP 

definitions. Therefore, based upon the 

lack of a demonstration from the State, 

EPA disapproved the definitions of 

‘‘baseline actual emissions’’ at 30 TAC 

116.12(3) and ‘‘projected actual 

emissions’’ at 30 TAC 116.12(29) as not 

meeting the revised Major NSR SIP 

requirements. Specifically, the State had 

not provided: 

• A replicable procedure for 

determining the basis for which 

emissions associated with maintenance, 

startup, and shutdown (MSS) will and 

will not be included in the baseline 

actual emissions; 

• The basis for including emissions 

associated with maintenance in baseline 

actual emissions; 

• The basis for not including MSS 

emissions, in the projected actual 

emissions; and 


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25These requirements are in the SIP at 30 TAC 

Chapter 101, Subchapter F, and approved 

November 10, 2010 (75 FR 68989). 

26The current SIP-approved definition of 

‘‘emission event’’ approved November 10, 2010 (75 

FR 68989), at 30 TAC 101.1(28) states: ‘‘Emissions 

event—Any upset event or unscheduled 

maintenance, startup, or shutdown activity, from a 

common cause that results in unauthorized 

emissions of air contaminants from one or more 

emissions points at a regulated entity.’’ 

• Provisions for how it will handle 

MSS emissions after March 1, 2016. 

Therefore, based upon the lack of a 

demonstration from the State, as is 

required for a customized Major NSR 

SIP revision submittal, EPA 

disapproved the definitions of ‘‘baseline 

actual emissions’’ at 30 TAC 116.12(3) 

and ‘‘projected actual emissions’’ at 30 

TAC 116.12(29) as not meeting the 

revised Major NSR SIP requirements. 

Texas stated that it had excluded 

emissions associated with malfunctions 

from the calculation of baseline actual 

emissions and projected actual 

emissions because including such 

emissions would inflate the baseline 

and would narrow the gap between 

baseline actual emissions and projected 

actual emissions. EPA agrees with the 

reasons Texas uses to exclude 

malfunction emissions from baseline 

actual emissions and projected actual 

emissions and which are comparable to 

the reasons EPA used for excluding 

malfunction emissions from other States 

in which EPA approved such exclusion. 

Notwithstanding Texas’ exclusion of 

malfunctions from these definitions, 

Texas must address the other grounds 

for disapproval as discussed above. This 

includes mandating the exclusion of 

malfunction emissions in both 

definitions. See 75 FR 56424, at 56438– 

56439 and 56443. 

b. What did Texas submit to address the 

grounds for disapproval? 

On March 11, 2011–2, TCEQ 

submitted revisions to address this 

concern. TCEQ removed the term 

‘‘exempted’’ from 30 TAC 116.12(3)(E) 

and replaced it with ‘‘unauthorized’’ 

since emissions events were not exempt 

under 30 TAC Chapter 101, General Air 

Quality Rules, and must be reported.25

TCEQ noted that in EPA’s final 

disapproval of the definition of baseline 

actual emissions, EPA agreed that the 

inclusion of emission events 26 in the 

definition of baseline actual emissions 

would have the effect of inflating the 

baseline and narrowing that gap 

between the baseline actual emissions 

and the planned emission rate. See 75 

FR 56424, at 56443. EPA noted that the 

definition of baseline actual emissions 

included emission events and stated 

that to be approvable the definition 

must exclude emission events. This is 

because EPA noted that the definitions 

of ‘‘baseline actual emissions’’ and 

‘‘projected actual emissions’’ must both 

exclude or include malfunction 

emissions. The TCEQ stated that its 

long-standing policy is not to reward 

emissions from events which are upset 

events and unplanned MSS activities. 

TCEQ stated that the term ‘‘unplanned 

MSS activities’’ substitutes for EPA’s 

term ‘‘unscheduled MSS.’’ TCEQ further 

stated that unplanned MSS activities are 

the functional equivalent of 

malfunctions, as are all upset emissions. 

TCEQ also noted that EPA objects to the 

use of the word ‘‘may,’’ because it 

indicates discretion without replicable 

procedures for such determinations. 

Accordingly, TCEQ reworded 30 TAC 

116.12(3)(E) to clarify that MSS 

emissions reported under Chapter 101 

shall be included in the calculation of 

baseline actual emissions but only to the 

extent that they have been authorized or 

are being authorized. Because 

unauthorized emissions are not 

included, they are therefore excluded in 

the calculation of baseline actual 

emissions. The TCEQ does not 

authorize emission events, which are 

emissions from upsets and unscheduled 

MSS activities. While the text, as 

adopted in 2006, implemented that long 

standing policy, it was not written to 

clearly limit the inclusion of only 

planned MSS emissions that have been 

authorized or in the process of being 

authorized during a defined time 

period. These changes ensure: 

• That there is no discretion as to 

inclusion of only certain planned MSS 

emissions (and consequently the 

exclusion of emission events) in the 

baseline actual emissions calculation, 

and 

• That the definitions of ‘‘baseline 

actual emissions’’ and ‘‘projected actual 

emissions’’ are comparable and are 

therefore approvable. 

Additionally, the TCEQ made changes 

from its proposal by retaining in 30 TAC 

116.12(3)(E) the phrase ‘‘or are being 

authorized,’’ relating to planned MSS 

emissions. Further, 30 TAC 116.12(3)(D) 

provides that non-compliant emissions 

are excluded from baseline actual 

emissions. To the extent that there are 

planned MSS emissions that remain 

unauthorized on or after March 1, 2016, 

those will necessarily be ‘‘noncompliant’’ and therefore, no longer 

included in the determination of 

baseline actual emissions under the 

requirements of subparagraph (D). This 

is consistent with the Commission’s 

policy regarding authorization of 

planned MSS emissions. 

Additionally, the TCEQ amended the 

definition of ‘‘projected actual 

emissions’’ in 30 TAC 116.12(29). The 

Commission is replacing the phrase 

‘‘unauthorized emissions from startup 

and shutdown activities’’ with 

‘‘emissions from planned maintenance, 

startup, or shutdown activities, which 

were historically unauthorized and 

subject to reporting under Chapter 101 

to the extent that they have been 

authorized or are being authorized.’’ 

Emphasis added. This change is 

necessary to ensure that this definition 

is compatible with the definition of 

‘‘baseline actual emissions.’’ As 

discussed earlier, the definition of 

‘‘baseline actual emissions’’ is being 

amended to ensure TCEQ’s intent of the 

types of emissions that can be included 

in the calculation is clear. While the 

TCEQ intended that these two 

definitions be compatible when adopted 

in 2006, the EPA’s comments indicated 

that this may not be the case. The EPA 

commented that the term ‘‘projected 

actual emissions’’ does not include 

emissions from startups, shutdowns, 

and malfunctions. However, as stated in 

the original adoption preamble for this 

rule in 2006, the TCEQ excluded 

malfunction emissions in compliance 

with long-standing Commission policy 

to exclude noncompliant emissions. The 

EPA in its final disapproval (see 

September 15, 2010 (75 FR 56424)) 

agreed that the inclusion of emissions 

events, which are similar to the Federal 

term ‘‘malfunctions’’ in the definition of 

‘‘baseline actual emissions’’ would be 

inappropriate. Further, EPA has 

approved definitions in other states that 

also exclude malfunctions. (See 

September 15, 2010 (75 FR 56441)). 

These amendments are necessary to 

ensure that both definitions are 

approvable as revisions to the SIP. 

c. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

Texas submitted revisions on March 

11, 2011–2, that address each of the 

items that EPA identified as needing to 

be addressed. Texas addressed these 

items as follows: 

• A replicable procedure for 

determining the basis for which 

emissions associated with MSS will, and 

will not, be included in the baseline 

actual emissions. 

TCEQ stated that its long-standing 

policy is not to reward emissions from 

emission events, which are upset events 

and unplanned MSS activities. TCEQ’s 

term ‘‘unplanned MSS activities’’ 

substitutes for EPA’s term ‘‘unscheduled 

MSS.’’ Unplanned MSS activities are 


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27A similar issue in the PAL Program is 

addressed in section IV.B.5 of this preamble. 

the functional equivalent of 

malfunctions, as are all upset emissions. 

EPA also objected to the use of the 

word ‘‘may’’ stating that it indicates 

discretion without replicable 

procedures for such determinations. The 

submitted revision no longer uses the 

word ‘‘may.’’ 

TCEQ addressed through its revisions 

to 30 TAC 116.12(3)(E) to clarify that 

MSS emissions reported under Chapter 

101 shall be included in the calculation 

of baseline actual emissions but only to 

the extent that they have been 

authorized, or are being authorized. 

Unauthorized emissions are not 

included and are therefore excluded in 

the calculation of baseline actual 

emissions. TCEQ stated that it does not 

authorize emission events, which are 

emissions from upsets and unscheduled 

MSS activities. 

Consequently, TCEQ reworded 30 

TAC 116.12(3)(E) to clarify that MSS 

emission reported under Chapter 101 

shall be included in the calculation of 

baseline actual emissions but only to the 

extent that they have been authorized or 

are being authorized. Because 

unauthorized emissions are not 

included, they are therefore excluded in 

the calculation of baseline actual 

emissions. The TCEQ does not authorize 

emission events, which are emissions 

from upsets and unscheduled MSS 

activities. These changes ensure: 

—That there is no discretion as to 

inclusion of only certain planned 

MSS emission (and consequently the 

exclusion of emission events) in the 

baseline actual emissions calculation, 

and 

—That the definitions of ‘‘baseline 

actual emissions’’ and ‘‘projected 

actual emissions’’ are comparable and 

are therefore approvable. 

• The basis for including emissions 

associated with maintenance in baseline 

actual emissions. 

The TCEQ includes MSS emissions to 

the extent that they have been 

authorized or are being authorized. The 

MSS includes authorized emission from 

maintenance. The bases for including 

authorized MSS emissions (which 

include authorized emissions from 

maintenance) are discussed above in 

section V.B.2.b. As discussed above, 

unauthorized emissions, including 

unauthorized emissions from 

maintenance activities, are not included 

in the calculation of the baseline actual 

emissions. TCEQ does not authorize 

emission events which are emissions 

from upsets and unscheduled MSS 

activities (including maintenance). 

• The basis for not including 

unauthorized MSS emissions in the 

projected actual emissions. 

TCEQ described its adopted changes 

to the definition of ‘‘projected actual 

emissions’’ in 30 TAC 116.12(29) as a 

replacement of the phrase 

‘‘unauthorized emissions from startup 

and shutdown activities’’ with 

‘‘unauthorized emissions from startup 

and shutdown activities which were 

historically unauthorized and subject to 

reporting under Chapter 101 to the 

extent that they have been authorized or 

are being authorized.’’ This change 

ensures that this definition is 

compatible with the definition of 

‘‘baseline actual emissions.’’ The TCEQ 

excluded malfunction emissions 

consistent with its long-standing policy 

to exclude non-compliant emissions, as 

discussed above in section V.B.2.b of 

this preamble. 

• Provisions for how it will handle 

maintenance, startup, and shutdown 

emissions after March 1, 2016. 

Under 30 TAC 116.12(3)(D), TCEQ 

excludes non-compliant emissions from 

the baseline actual emissions. To the 

extent that these emissions are planned 

MSS emissions that remain after March 

1, 2016, those emissions are necessarily 

‘‘non-compliant’’ and will be excluded 

from the calculation of the baseline 

actual emissions under subparagraph 

(D). 

In summary, the TCEQ has addressed 

the grounds for disapproval, as 

discussed above, and demonstrated that 

the submitted revisions meet the 

following Federal requirements: 

• Inclusion of planned MSS activities 

to the extent they have been authorized, 

or are being authorized, in the 

calculation of baseline actual emissions. 

These revisions meet the requirements 

of 40 CFR 51.165(a)(1)(xxxv)(A)(1) and 

(B)(1) and 40 CFR 51.166(b)(40)(ii)(a) 

and (b)(47)(i)(a) and (ii)(a); and 

• Inclusion of planned MSS activities 

to the extent they have been authorized, 

or are being authorized, in the 

calculation of projected actual 

emissions. These revisions meet the 

requirements of 40 CFR 

51.165(a)(1)(xxviii)(B)(2); and 40 CFR 

51.166(b)(40)(ii)(b). 

These revisions therefore satisfy the 

requirements for SIP approval. 

Accordingly, EPA is proposing to 

approve the revisions to the definitions 

of ‘‘baseline actual emissions’’ and 

‘‘projected actual emissions’’ in 30 TAC 

116.12(3) and (29) submitted March 11, 

2011–2. 

3. The Submitted Definition ‘‘Baseline 

Actual Emissions’’ Does Not Provide 

That the Emissions Must Be Calculated 

in Terms of the Average Rate, in Tons 

per Year 

a. What were the grounds for the 

September 15, 2010, disapproval? 

The Federal definition of the 

‘‘baseline actual emissions’’ provides 

that these emissions must be calculated 

in terms of ‘‘the average rate, in tons per 

year at which the unit actually emitted 

the pollutant during any consecutive 

24-month period.’’ The submitted 

definition of the term ‘‘baseline actual 

emissions’’ found at 30 TAC 

116.12(3)(A), (B), (D), and (E) differed 

from the Federal definition by leaving 

out the word ‘‘average’’ and instead 

providing that the baseline shall be 

calculated as ‘‘the rate, in tons per year 

at which the unit actually emitted the 

pollutant during any consecutive 24- 

month period.’’ Texas did not provide 

any demonstration, as required for a 

customized major NSR SIP revision 

submittal, showing how this different 

definition is at least as stringent as the 

Federal definition. See 75 FR 56424, at 

56439, and 56443. 

b. What did Texas submit to address the 

grounds for disapproval? 

On March 11, 2011–2 the TCEQ 

submitted revisions to the definition of 

‘‘baseline actual emissions’’ in 30 TAC 

116.12(3)(A), (B), (D), and (E), that 

specify that the rate is an average rate. 

c. What is EPA’s evaluation of the 

submitted SIP revision to address the 

grounds for disapproval? 

A submitted change to the definition 

of ‘‘baseline actual emissions’’ in 30 

TAC 116.12(3)(A), (B), (D), and (E), is to 

specify that the rate is an average rate. 

The revised definition meets the Federal 

requirements under 40 CFR 

51.165(a)(1)(xxxv)(A), (B), (D) and (E) 

and 51.166(b)(47)(i), (ii), (iv), and (v). 

These revisions satisfy the requirements 

for SIP approval. Accordingly, EPA is 

proposing to approve the revisions to 

the definition of ‘‘baseline actual 

emissions’’ in 30 TAC 116.12 submitted 

March 11, 2011–2.27

VI. Does approval of Texas’ rule 

revisions interfere with attainment, 

reasonable further progress, or any 

other applicable requirement of the act? 

The Act provides in section 110(l) 

that: 

Each revision to an implementation plan 

submitted by a State under this Act shall be 


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28This document is available at http:// 

www.epa.gov/air/nsr/documents/nsr-analysis.pdf. 

adopted by such State after reasonable notice 

and public hearing. The Administrator shall 

not approve a revision of a plan if the 

revisions would interfere with any applicable 

requirement concerning attainment and 

reasonable further progress * * *, or any 

other applicable requirement of the Act. 

EPA’s November 2002 rulemaking for 

NSR Reform Rules included the 

‘‘Supplemental Analysis of the 

Environmental Impact of the 2002 Final 

NSR Improvement Rules’’ which 

demonstrated the 2002 NSR Reform 

Rules were compliant with this 

requirement.28

In EPA’s Notice of Reconsideration of 

the final December 31, 2002, NSR 

Reform rule we stated: 

During the rulemaking process, we strived 

to take into consideration relevant and 

reliable information on environmental 

effects. We did in fact take account of 

environmental considerations in formulating 

the final rules, and believe the final rules are 

properly supported and justified in this 

regard. 

See 68 FR 44620, at 44624 (July 30, 

2003). We further stated: 

In the supplemental environmental 

analysis, we found that the overall effect of 

the final rule would be a net benefit to the 

environment compared to the former NSR 

rules because the final rule would result in 

reductions in emissions of air pollution. We 

found that four of the five provisions in the 

final rule would result in environmental 

benefits, and the other provision would have 

no significant effect. Specifically, for each of 

the rule’s five provisions, the analysis 

concludes the following: 

(1) The PAL provisions will result in tens 

of thousands of tons per year (tpy) of volatile 

organic compounds (VOC) reductions from 

just three industrial categories where PALs 

are likely to be used most often. Overall 

reductions will be greater because it is likely 

that PALs also will be adopted in other 

source categories. 

* * * * * 

(4) The portion of the rule addressing 

baseline actual emissions will not have a 

significant environmental impact. The former 

program already allowed sources to use a 

more representative baseline period, with the 

approval of the reviewing authority, instead 

of the two-year period before the change 

specifically delineated in the former rules. 

The final rules provide an expanded time 

frame from which you may select a 

representative baseline but eliminate the 

option of going beyond this period of time. 

While the new rules may allow a small 

number of existing emissions units to use 

higher baselines, other units will be required 

to use lower baselines due to the requirement 

to adjust the baseline downward to account 

for any new emission limitations at that 

emissions unit. The changes’ overall impact 

will be small because the portion of the rule 

addressing baseline actual emissions does 

not affect new sources, new units built at 

existing sources, electric utilities, and many 

modified sources. 

(5) The change to the actual-to-projectedactual test will have a net environmental 

benefit, but a relatively small one. The 

benefit stems from removing: (1) Incentives 

to keep actual emissions high before making 

a change, and (2) barriers to projects that will 

reduce emissions. The size of this benefit 

nationally is uncertain. Its impact would be 

small because the change in emissions 

calculation methodology does not affect 

either of the following: (1) New sources, new 

units built at existing industrial facilities, 

and electric utilities, or (2) any modifications 

at existing facilities that actually result in 

significant increases in emissions. 

Historically, under the previous major NSR 

rule, virtually all other sources making a 

physical or operational change have accepted 

‘‘permit limits’’ so as to be confident that 

they will not trigger major NSR. Our analysis 

concludes that the benefits from this aspect 

of the program are likewise largely unaffected 

because such sources must still assure that 

actual emissions do not significantly increase 

as a result of a change. 

The supplemental environmental analysis 

uses quantitative information where possible 

but also notes limitations on our ability to 

quantify impacts of the rule. We used 

qualitative information to supplement the 

analysis when such limitations are present. 

We also noted that the final rules will result 

in economic benefits that stem from 

improved flexibility, increased certainty, and 

reduced administrative burden. These 

benefits are important, but were not 

quantified as part of this environmental 

analysis. 

See 68 FR 44624–44625 (July 30, 2003). 

In the final reconsideration action, we 

stated: 

After carefully considering the information 

that was submitted, we have determined that 

none of the new information presented leads 

us to conclude that the analysis was incorrect 

or substantially flawed. Therefore, we are reaffirming the validity of the original 

conclusions. A summary of the comments 

received and our responses to these 

comments can be found in our Technical 

Support Document. 

See 68 FR 63021, at 63023 (November 

7, 2003). The Technical Support 

Document for the reconsideration is 

available at http://www.epa.gov/air/nsr/ 

documents/petitionresponses10-30- 

03.pdf. 

In this instance Texas has adopted 

new rules that are at least as stringent 

as the applicable Federal rules and 

correspond with the 2002 Final NSR 

Improvement Rules. There are no data 

currently available that would show that 

implementation of Texas’ NSR Reform 

Program would result in interference 

with any applicable requirement 

concerning attainment or reasonable 

further progress or any other applicable 

requirement of the Act. We anticipate 

that Texas’ NSR Reform Program will be 

have the same impact as the Federal 

PAL rules as described in the 2002 

Supplemental Analysis and the 2003 

reconsideration. 

The Texas PAL will result in lower 

emissions than the allowable emissions 

on the face of the permit in effect before 

issuance to the PAL Permit. This is 

because the PAL Permit is based upon 

actual emissions which will generally 

be less than the emissions allowed in 

the permit in effect prior to issuance of 

the PAL permit. The PAL is established 

as the sum of the baseline actual 

emissions from all emissions units at 

the major stationary source plus the 

significant level for the PAL pollutant, 

See 30 TAC 116.188. Furthermore, the 

average emissions for each emissions 

unit must be adjusted downward to 

exclude any non-compliant emissions 

during the consecutive 24-month 

baseline period that is used to establish 

the baseline actual emissions for the 

PAL. See 30 TAC 116.12(3)(D) under the 

definition of ‘‘baseline actual 

emissions.’’ As discussed in section 

IV.B.1 in this preamble, a PAL can only 

be established at an existing major 

stationary source which has had at least 

two years of operating history to 

establish an actuals PAL. Consequently, 

the PAL will generally be established at 

a level that is lower than the allowable 

emissions established in the pre-existing 

permit. Finally, in the 2002 NSR Reform 

rulemaking, we note that a PAL 

provides operational flexibility for an 

owner or operator to manage sourcewide emissions without triggering major 

NSR when the changes do not result in 

emissions above the PAL. This creates 

incentive for an owner or operator to 

create room for growth by employing 

innovative control technologies and 

pollution control measures to create 

emissions reductions to facilitate 

economic expansion. See 67 FR 80186, 

at 80206–80207 (December 31, 2002). 

For the reasons stated above, we are 

proposing to find that the submitted SIP 

revisions will not interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement of the Act. 

VII. Proposed Action 

Under section 110(k)(3) and parts C 

and D of the Act and for the reasons 

stated above, EPA proposes to approve 

the following revisions to the Texas SIP: 

• Revisions to 30 TAC 116.12— 

Nonattainment and Prevention of 

Significant Deterioration Review 

Definitions—submitted June 10, 2005, 

and resubmitted March 11, 2011–1; 

February 1, 2006, and resubmitted 


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36980 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Proposed Rules 

March 11, 2011–1; revisions submitted 

March 11, 2011–2; the revisions 

proposed February 22, 2012, for parallel 

processing; and the letter from TCEQ to 

EPA dated May 3, 2012, which clarifies 

TCEQ’s interpretation of 30 TAC 116. 

12. 

• Revisions to 30 TAC 116.115— 

General and Special Conditions— 

submitted March 11, 2011–2. 

• New 30 TAC 116.127—Actual to 

Projected Actual and Emission 

Exclusion Test for Emissions— 

submitted February 1, 2006 (as 30 TAC 

116.121) and resubmitted March 11, 

2011–2 (as redesignated to 30 TAC 

116.127). 

• Revisions to 30 TAC 116.150—New 

Major Source or Major Modification in 

Ozone Nonattainment Area—submitted 

June 10, 2005, and resubmitted March 

11, 2011–1; February 1, 2006, and 

resubmitted March 11, 2011–1; 

revisions submitted March 11, 2011–1; 

and the revisions proposed February 22, 

2012, for parallel processing. 

• Revisions to 30 TAC 116.151—New 

Major Source or Major Modification in 

Nonattainment Areas Other Than 

Ozone—submitted February 1, 2006, 

and resubmitted March 11, 2011–2 

(without further revision); and the 

revisions proposed February 22, 2012, 

for parallel processing. 

• New 30 TAC 116.180— 

Applicability—submitted February 1, 

2006, and resubmitted March 11, 2011– 

2; revisions submitted March 11, 2011– 

2; and the revisions proposed February 

22, 2012, for parallel processing. 

• New 30 TAC 116.182—Plant-Wide 

Applicability Permit—Submitted 

February 1, 2006, and resubmitted 

March 11, 2011–2; and revisions 

submitted March 11, 2011–2. 

• New 30 TAC 116.184—Application 

Review Schedule—Submitted February 

1, 2006, and resubmitted March 11, 

2011–2 (without further revision). 

• New 30 TAC 116.186—General and 

Specific Conditions—Submitted 

February 1, 2006, and resubmitted 

March 11, 2011–2; revisions submitted 

March 11, 2011–2; the revisions 

proposed February 22, 2012, for parallel 

processing; and the letter from TCEQ to 

EPA dated May 3, 2012, which clarifies 

TCEQ’s interpretation of 30 TAC 116.12. 

• New 30 TAC 116.188—Plant-Wide 

Applicability Limit—Submitted 

February 1, 2006, and resubmitted 

March 11, 2011–2; and revisions 

submitted March 11, 2011–2. 

• New 30 TAC 116.190—Federal 

Nonattainment and Prevention of 

Significant Deterioration Review— 

Submitted February 1, 2006, and 

resubmitted March 11, 2011–2; and 

revisions submitted March 11, 2011–2. 

• New 30 TAC 116.192— 

Amendments and Alterations— 

Submitted February 1, 2006, and 

resubmitted March 11, 2011–2; and 

revisions submitted March 11, 2011–2. 

• New 30 TAC 116.196—Renewal of 

a Plant-Wide Applicability Limit 

Permit—Submitted February 1, 2006; 

and resubmitted March 11, 2011–2 

(without further revision). 

• New 30 TAC 116.198—Expiration 

or Voidance—Submitted February 1, 

2006, and resubmitted March 11, 2011– 

2 (without further revision). 

VIII. 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. See 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 notice 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 proposed 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Carbon monoxide, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Sulfur oxides, Volatile organic 

compounds. 

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

Dated: June 7, 2012. 

Samuel Coleman, 

Acting Regional Administrator, Region 6. 

[FR Doc. 2012–15049 Filed 6–19–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 20 

[Docket No. FWS–R9–MB–2012–0028; 

FF09M21200–123–FXMB1231099BPP0L2] 

RIN 1018–AY61 

Migratory Bird Hunting; Application for 

Approval of Copper-Clad Iron Shot as 

Nontoxic for Waterfowl Hunting 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of application for 

nontoxic shot approval. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce that 

Environ-Metal, Inc., of Sweet Home, 

Oregon, has applied for our approval of 

shot composed of copper and iron as 

nontoxic for waterfowl hunting in the 

United States. The shot contains a 

maximum of 44.1 percent copper by 

weight, with iron composing the rest of 

the shot. We have initiated review of the 

shot under the criteria we have set out 

in our nontoxic shot approval 

procedures in our regulations. 

DATES: This notice announces the 

initiation of our review of a Tier 1 

application submitted in accordance 

with 50 CFR 20.134. We will complete 


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