```

[Federal Register: September 15, 2010 (Volume 75, Number 178)]
[Rules and Regulations]               
[Page 55978-55988]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se10-15]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2010-0620; FRL-9199-8]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Revisions to the New Source Review (NSR) State Implementation 
Plan (SIP); Prevention of Significant Deterioration (PSD)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving revisions to the 
Texas PSD State Implementation Plan (SIP). EPA is approving a SIP 
revision submitted February 1, 2006, as amended by a SIP revision 
submitted July 16, 2010. This action makes no substantive changes to 
the Texas PSD SIP; it merely approves reorganization and renumbering of 
the Texas PSD SIP rules. Further, the July 16, 2010 submission corrects 
certain deficiencies identified in EPA's September 23, 2009 proposed 
disapproval. The EPA is approving these revisions pursuant to section 
110 and part C of the Federal Clean Air Act (Act or CAA).

DATES: This direct final rule will be effective on November 15, 2010 
without further notice, unless EPA receives relevant adverse comments 
by October 15, 2010. If EPA receives such comments, EPA will publish a 
timely withdrawal of the direct final rule in the Federal Register 
informing the public that this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2010-0620, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     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.
     E-mail: Mr. Stanley M. Spruiell at 
spruiell.stanley@epa.gov. Please also cc the person listed in the FOR 
FURTHER INFORMATION CONTACT section below.
      Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-
R), at fax number 214-665-7263.
     Mail: Mr. Stanley M. Spruiell, Air Permits Section (6PD-
R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     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 a.m. and 4 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-
2010-0620. 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 e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as 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

[[Page 55979]]

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 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below 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 Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment:
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: 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 214-665-7263; e-mail address spruiell.stanley@epa.gov.

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

Outline

I. What action is EPA taking?
II. What did the State submit?
III. What is the background for this action?
IV. What comments did EPA receive on the proposed disapproval of the 
2006 SIP revision submittal?
V. What are the grounds for approval?
VI. Final Action
VII. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is approving the revisions to the Texas SIP PSD Program 
(Program) that amend Title 30 of the Texas Administrative Code (30 TAC) 
116.160--Prevention of Significant Deterioration Requirements. This 
includes SIP revisions to the Program as follows: The revision which 
relates to the PSD Program that Texas submitted February 1, 2006 (as 
adopted by the Texas Commission on Environmental Quality (TCEQ) on 
January 11, 2006), and a revision submitted July 16, 2010 (as adopted 
by TCEQ on June 2, 2010) that amends the 2006 submittal. We are 
approving these revisions as meeting the Major NSR PSD SIP 
requirements.
    Specifically, we are approving the nonsubstantive reorganizing and 
renumbering of 30 TAC 116.160 as submitted in 2006 and as revised in 
2010. Our final action ensures that the Texas PSD SIP remains the same 
in substance with improvement in clarity.

II. What did the State submit?

    On September 23, 2009, EPA proposed to disapprove the SIP revisions 
submittals relating to Prevention of Significant Deterioration (PSD); 
Nonattainment NSR (NNSR) for the 1-Hour Ozone Standard, NNSR for the 
1997 8-Hour Ozone Standard, NSR Reform, and a Standard Permit (under 
Docket No. EPA-R06-OAR-2006-0133). See the proposal at 74 FR 48467, at 
48472. We proposed to disapprove the submitted PSD revisions in 30 TAC 
116.160 because:
     This 2006 SIP revision submittal removed from the State 
rules the incorporation by reference of the Federal PSD definition of 
``best available control technology (BACT)'' as defined in 40 CFR 
51.166(b)(12). The currently approved PSD SIP includes the Federal 
definition of PSD BACT. See 30 TAC 116.160(a); and
     The 2006 SIP submittal also removed from the State rules, 
the PSD SIP requirement at 40 CFR 52.21(r)(4) that the State previously 
had incorporated by reference. The currently approved PSD SIP mandates 
this requirement. See 30 TAC 116.160(a). This provision specifies that 
if a project becomes a major stationary source or major modification 
solely because of a relaxation of an enforceable limitation on the 
source or modification's capacity to emit a pollutant, then the source 
or modification is subject to PSD as if construction had not yet 
commenced. The State's action in eliminating that requirement means the 
State's rules will not regulate these types of major stationary sources 
or modifications as stringently as the Federal program or the current 
approved Texas PSD SIP.
    The 2006 SIP revision submittal included a nonsubstantive 
reorganizing, and renumbering of the State's PSD rules but for the 
removal of the two requirements described above. The reorganization and 
renumbering of 30 TAC 116.160 (submitted in 2006) includes the 
following:
     A revision to 30 TAC 116.160(a);
     Deletion of the existing 30 TAC 116.160(b);
     Addition of a new 30 TAC 116.160(b);
     Deletion of the existing 30 TAC 116.160(c), including the 
removal of the two definitions of ``building, structure, facility, or 
installation'' and ``secondary emissions'' from 30 TAC 116.160(c), 
which had duplicated the definitions of those terms as currently 
defined in the SIP at 30 TAC 116.12(4) and (17), respectively;
     Portions of the existing 30 TAC 116.160(a) and (b) were 
reorganized into a new and revised 30 TAC 116.160(c)(1), (2), and (3);
     Moving the existing 30 TAC 116.160(d) into a new 30 TAC 
116.160(c)(4); and
     Finally, moving the existing 30 TAC 116.160(e) into new 30 
TAC 116.160(d).
    EPA finds that these submitted changes are nonsubstantive and 
continue to meet the Act and EPA's PSD SIP regulations, with the 
exception of the removal of the incorporation of the PSD BACT 
definition in 40 CFR 52.21(b)(12) and the removal of the incorporation 
of the provisions in 40 CFR 52.21(r)(4) PSD SIP requirement.
    On July 16, 2010, TCEQ submitted revisions to 30 TAC 116.160. These 
revisions revised the State's rules as follows:
     Incorporated by reference the federal PSD BACT definition 
in 40 CFR 52.21(b)(12). See 30 TAC 116.160(c)(1)(A). This corrects a 
deficiency identified in the 2009 proposal.
     Incorporated by reference the requirements of 40 CFR 
52.21(r)(4). See 30 TAC 116.160(c)(2)(A). This corrects a deficiency 
identified in the 2009 proposal.
     Incorporated by reference the requirements of 40 CFR 
52.21(j)--Control technology review. See 30 TAC 116.160(c)(2)(C). This 
provision identifies the circumstances under which PSD BACT must be 
required for

[[Page 55980]]

the construction of a major stationary source and a major modification 
that is subject to PSD.
    TCEQ adopted and submitted for the first time, incorporation by 
reference of the Federal PSD requirement at 40 CFR 52.21(j) for 
approval by EPA into the Texas PSD SIP to ensure that it is clear that 
major stationary sources and major modifications in attainment/
unclassifiable designated areas must meet the PSD requirement by 
performing a PSD BACT analysis. The Texas NSR SIP includes not only the 
federal PSD BACT definition but also a requirement for a source to 
perform a State BACT analysis. See 30 TAC 116.111(a)(2)(C). EPA relied 
upon this SIP provision in its 1992 original approval of the Texas PSD 
SIP as meeting the PSD requirement of 40 CFR 52.21(j). See 54 FR 52823, 
at 52824-52825, and 57 FR 28093, at 28096-28096. Both Texas and EPA 
interpreted this SIP provision to require either a Minor NSR BACT 
determination or a Major PSD BACT determination. Since EPA's approval 
of the Texas PSD SIP in 1992, there has been some confusion about the 
distinction between a State Minor NSR BACT definition and a PSD Major 
NSR BACT definition and the requirement that a source must perform the 
relevant PSD BACT analysis.\1\ TCEQ's July 2010 submittal's inclusion 
of the PSD requirement of 40 CFR 52.21(j) is aimed at clarifying the 
Texas PSD SIP in this respect.
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    \1\ The January 1972 Texas NSR rules, as revised in July 1972, 
require a proposed new facility or modification to utilize ``best 
available control technology, with consideration to the technical 
practicability and economic reasonableness of reducing or 
eliminating the emissions resulting from the facility.'' This 
definition of BACT is from the Texas Clean Air Act. When EPA 
approved the Texas PSD program SIP revision submittals, including 
the State's incorporation by reference of the Federal definition of 
PSD BACT, in 1992, both EPA and Texas interpreted the use of the 
TCAA BACT definition to be for Minor NSR SIP permitting purposes 
only. EPA specifically found that the State's TCAA BACT definition 
did not meet the Federal PSD BACT definition. We required the use of 
the Federal PSD BACT definition for PSD SIP permitting purposes. See 
the proposal and final approval of the Texas PSD SIP at 54 FR 52823 
(December 22, 1989) and 57 FR 28093 (June 24, 1992).
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    Based upon our review, we find that the 2010 SIP revision submittal 
corrects the deficiencies identified in the September 2009 proposed 
disapproval concerning the 2006 SIP revision submittal. Consequently, 
because Texas has corrected the deficiencies, we are now approving the 
PSD Program revisions submitted February 1, 2006 and as amended July 
16, 2010. Our final action ensures that the substance of the Texas PSD 
SIP continues to remain the same and approval of the two SIP revision 
submittals improves the clarity of the Texas PSD SIP. See sections III 
through V of this preamble, the proposal FRN, and the technical support 
document (TSD) for further information on the basis for approving this 
submitted Texas PSD Program. Therefore, EPA is approving the amendments 
to 30 TAC 116.160, as submitted on February 1, 2006 and as amended on 
July 16, 2010.

III. What is the background for this Action?

    Tables 1 and 2 below summarize the changes that are in the two SIP 
revision submittals. A summary of EPA's evaluation of each section and 
the basis for this direct final action is discussed in sections IV and 
V of this preamble. The TSD includes a detailed evaluation of the 
submittals.

                     Table 1--Summary of Each SIP Submittal That Is Affected by This Action
----------------------------------------------------------------------------------------------------------------
                                             Date submitted   Date of state
           Title of SIP submittal                to EPA         adoption             Regulations affected
----------------------------------------------------------------------------------------------------------------
Federal New Source Review Permit Rules             2/1/2006       1/11/2006  30 TAC 116.160--Prevention of
 Reform.                                                                      Significant Deterioration
                                                                              Requirements.
                                                                                 The Rule was changed to
                                                                                 reorganize existing SIP-
                                                                                 approved rule.
                                                                                 This change resulted in
                                                                                 removal of cross-references to
                                                                                 40 CFR 52.21(b)(12) and
                                                                                 52.21(r)(4) which are critical
                                                                                 to administration and
                                                                                 enforcement of PSD
                                                                                 requirements.
                                                                                 The change included the
                                                                                 removal of definitions of
                                                                                 ``building, structure,
                                                                                 facility, on installation'' and
                                                                                 ``secondary emissions'' in 30
                                                                                 TAC 116.160(c)(1)-(2),
                                                                                 respectively. The removal of
                                                                                 these definitions is
                                                                                 nonsubstantive because these
                                                                                 terms are currently defined
                                                                                 with the same definitions in
                                                                                 the Texas SIP at 30 TAC
                                                                                 116.12(4) and (17),
                                                                                 respectively.
Best Available Control Technology (BACT) in       7/16/2010        6/2/2010  30 TAC 116.160--Prevention of
 Prevention of Significant Deterioration                                      Significant Deterioration
 (PSD) Permitting.                                                            Requirements.
                                                                                 Re-instatement of cross-
                                                                                 references to 40 CFR
                                                                                 52.21(b)(12) and 52.21(r)(4).
                                                                                 Added cross-reference
                                                                                 to 40 CFR 52.21(j)--Control
                                                                                 technology review.
----------------------------------------------------------------------------------------------------------------

                       Table 2--Summary of Each Regulation that is Affected by this Action
----------------------------------------------------------------------------------------------------------------
                                                           Date        Date of state
           Section                     Title             submitted       adoption              Comments
----------------------------------------------------------------------------------------------------------------
                Chapter 116--Control of Air Pollution by Permits New Construction or Modification
                                     Subchapter B--New Source Review Permits
                           Division 6--Prevention of Significant Deterioration Review
----------------------------------------------------------------------------------------------------------------
Section 116.160..............  Prevention of                2/1/2006       1/11/2006   Rule changed to
                                Significant                                            reorganize existing SIP-
                                Deterioration                                          approved rule.
                                Requirements.

[[Page 55981]]

                                                                                       This change
                                                                                       resulted in removal of
                                                                                       cross-references to 40
                                                                                       CFR 52.21(b)(12) and
                                                                                       52.21(r)(4) which are
                                                                                       critical to
                                                                                       administration and
                                                                                       enforcement of PSD
                                                                                       requirements.
                                                           7/16/2010        6/2/2010   Re-instatement of
                                                                                       cross-references to 40
                                                                                       CFR 52.21(b)(12) and
                                                                                       52.21(r)(4).
                                                                                       Added cross-
                                                                                       reference to 40 CFR
                                                                                       52.21(j)--Control
                                                                                       technology review.
----------------------------------------------------------------------------------------------------------------

IV. What comments did EPA receive on the proposed disapproval of the 
2006 SIP revisions submittal?

    In response to our September 23, 2009, proposed disapproval of the 
submitted revisions to Texas' PSD Program, we received comments from 
the following: Baker Botts, L.L.P., on behalf of BCCA Appeal Group 
(BCCA); Baker Botts, L.L.P., on behalf of Texas Industrial Project 
(TIP); Bracewell & Guiliani, L.L.P., on behalf of the Electric 
Reliability Coordinating Council (ERCC); Gulf Coast Lignite Coalition 
(GCLC); Texas Chemical Council (TCC); Texas Commission on Environmental 
Quality (TCEQ); Members of the Texas House of Representatives; 
University of Texas at Austin School of Law--Environmental Clinic (the 
Clinic) on behalf of: Environmental Integrity Project, Environmental 
Defense Fund, Galveston-Houston Association for Smog Prevention, Public 
Citizen, Citizens for Environmental Justice, Sierra Club Lone Star 
Chapter, Community-In-Power and Development Association, KIDS for Clean 
Air, Clean Air Institute of Texas, Sustainable Energy and Economic 
Development Coalition, Robertson County: Our Land, Our Lives, Texas 
Protecting Our Land, Water and Environment, Citizens for a Clean 
Environment, Multi-County Coalition, and Citizens Opposing Power Plants 
for Clean Air.
    Below is a summary of the comments and our responses.
    Comment 1: TCEQ commented on the lack of a specific definition of 
PSD BACT and the absence of a requirement contained in 40 CFR 
52.21(r)(4). TCEQ noted that although these references are currently 
missing from 30 TAC 116.160, its permitting actions are implemented in 
a manner that does not circumvent Federal New Source Review (FNSR) 
requirements and does not allow a control technology review to be 
conducted that results in a technology that is less than PSD BACT as 
defined in the federal rule. TCEQ agrees that if a project becomes a 
major source or major modification through the relaxation of an 
enforceable limitation, PSD review is required, and TCEQ complies with 
that requirement in its permitting actions. The missing references are 
oversights, and TCEQ agreed to adopt revisions to 30 TAC 116.160 to 
include these provisions.
    Response: EPA acknowledges TCEQ's description of how it implements 
the submitted Program. However, our evaluation considers whether a 
submitted SIP revision that removes a statutory requirement can still 
meet the requirements of the Act. In the proposal, EPA explained that 
the removal of a statutory requirement from a State's program renders a 
SIP revision unapprovable because the removal does not meet the 
requirements of the Act. PSD BACT is not only a defined statutory and 
regulatory term; it is also a central requirement of the Act. 
Accordingly, a state's submission of a revision that removes the 
requirement that all new major stationary sources or major 
modifications install, at a minimum, PSD BACT as defined by the Act 
creates a situation where the submitted SIP revision violates the Act 
and also would be a relaxation of the requirements of the SIP. In the 
July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to 
incorporate into its PSD Program the federal PSD BACT definition in 40 
CFR 52.21(b)(12) and the requirement contained in 40 CFR 52.21(r)(4). 
Based upon our evaluation of the July 2010, SIP revision, we conclude 
that Texas has corrected the deficiencies identified in the proposal.
    Comment 2: The Clinic supported EPA's proposed positions. The 
Clinic further comments that instead of implementing the top-down 
approach consistent with EPA's PSD guidance, TCEQ uses its ``three-
tier'' guidance, a process that does not always require a detailed 
analysis of the most effective emission control alternatives and is 
less stringent than the top-down procedure. The Clinic maintains that 
Texas's definition and implementation of BACT are insufficient. This 
results in Texas implementing BACT such that it fails to fulfill the 
technology forcing intent of the Act and results in weaker emission 
limitations--and thus more pollution. EPA must take immediate action to 
ensure that Texas is properly implementing the federal SIP-approved 
definition of BACT, including rejection of Texas's use of its current 
BACT guidance.
    Response: In the July 16, 2010, SIP submittal TCEQ revised 30 TAC 
116.160 to incorporate into its PSD Program the federal PSD BACT 
definition in 40 CFR 52.21(b)(12). See 30 TAC 116.160(c)(1)(A), 
submitted July 16, 2010. By re-instating the federal definition of PSD 
BACT into the State's rules, the PSD Program now meets EPA's PSD SIP 
requirements and is consistent with the approved Texas PSD SIP. This 
final rulemaking only addresses the approvability of the Texas PSD SIP 
revision submittals. Therefore, those comments related to other EPA 
actions and the State's implementation of the PSD SIP are outside the 
scope of this rulemaking action.
    Comment 3: Members of the Texas House of Representatives commented 
that Texas is applying a definition of BACT, and using a BACT 
determination process that is significantly less stringent than 
required by federal law. Consequently, Texas industrial facilities emit 
more pollution than similar facilities in other states. They further 
comment that use of federal BACT alone will not be sufficient for the 
State to achieve and maintain attainment of the NAAQS and protect the 
health and welfare of facilities downwind of these new sources. They 
recommend that EPA adopt procedures necessary to ensure that TCEQ has 
explicit authority and direction to analyze individual and cumulative 
effects of emissions from proposed significant point sources on 
regional ozone levels when considering a permit application. Analysis 
of ozone effects should include photochemical modeling of impacts to 
downwind areas under typical high ozone conditions.
    Response: The comments that (1) the use of federal PSD BACT alone 
will not

[[Page 55982]]

be sufficient for the State to achieve and maintain attainment of the 
NAAQS and protect the health and welfare of facilities downwind of 
these new sources, and (2) the suggestion that EPA conduct a 
rulemaking, are outside the scope of this rulemaking action. The issue 
of how TCEQ implements the Texas PSD SIP to make its PSD BACT 
determinations is not the subject of this rulemaking action and 
therefore outside the scope of this action. Based upon TCEQ's July 2010 
SIP revision, which re-instates into the TCEQ rules the federal PSD 
BACT definition, its PSD BACT definition is EPA's PSD BACT definition.
    Comment 4: BCCA, TIP, ERCC, GCLC and TCC commented that Texas 
submitted a revision to 30 TAC 116.160(a) and a new section 
116.160(c)(1) and (2) on February 1, 2006, as a SIP revision to the 
Texas PSD SIP. This SIP revision reorganized the earlier SIP-approved 
rules. These commenters refer to TCEQ's plans to address this matter in 
rulemaking that should resolve EPA concerns regarding the Texas PSD 
program. See also Hall v. United States EPA, 273 F.3d 1146, 1160 (9th 
Cir. 2001) stating that EPA must consider anticipated revisions in 
determining whether the State will achieve attainment.
    Response: EPA reviews a SIP revision submission for its compliance 
with the Act and EPA regulations. CAA 110(k)(3). See also BCCA Appeal 
Group v. EPA, 355 F 3d. 817, 822 (5th Cir. 2003); Natural Resources 
Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995). 
This includes an analysis of the submitted regulations for their legal 
interpretation. The Court of Appeals, in Hall v. United States EPA, 
stated that ``the objective of EPA's analysis is to determine whether 
the ultimate effect of a state's choice of emission limitations is 
compliance with the NAAQS.'' \2\ The court did not require EPA to 
consider anticipated revisions when evaluating particular revisions. 
The court only required that EPA must be able to conclude the 
``particular plan revision before it is consistent with the development 
of an overall plan.'' \3\ At the time of EPA's proposal, the 
anticipated revisions had not been submitted to EPA for approval as a 
SIP revision and therefore could not be considered. In this action, EPA 
has considered the subsequent revision to Texas' PSD program submitted 
July 16, 2010. Based upon our evaluation of the July 2010, SIP 
revision, we conclude that Texas has corrected the deficiencies 
identified in the proposal.
---------------------------------------------------------------------------

    \2\ Id. at 1159.
    \3\ Id. at 1160.
---------------------------------------------------------------------------

    Comment 5: BCCA and TIP commented that the term BACT has been 
defined by TCEQ in strict accordance with the statutory BACT 
requirement in the TCAA. Specifically, 30 TAC 116.10(3) defines BACT as 
``BACT with consideration given to the technical practicability and the 
economic reasonableness of reducing or eliminating emissions from the 
facility.'' ERCC commented that Texas has an adequate and legally 
defensible definition of BACT, which is allowable under case law, EPA 
guidance, and rulings from the Environmental Appeals Board. Contrary to 
EPA's statements in the proposed disapprovals, States have flexibility 
in their definition of BACT and implementation of BACT as long as the 
statutory factors in the BACT definition are present in the state's 
analysis. The commenters commented that EPA has made no finding that 
Texas' BACT definition is contrary to, or less stringent than, the 
Federal definition of BACT. Nonetheless, EPA is proposing the drastic 
action of disapproving the entire Texas PSD program. Such disapproval 
would also discard all the benefits of the 2002 NSR Reform Rules. They 
comment that EPA would place Texas permittees at a severe disadvantage 
to all other permittees throughout the country that have the benefit of 
the 2002 NSR reforms rules. GCLC commented that the Texas BACT 
assessment process is legally valid as it has been and continues to be 
in full compliance with FCAA requirements. Texas has a three-tiered 
BACT approach that has been previously approved by the EPA. This 
policy, as demonstrated in the TCEQ guidance document ``Evaluating Best 
Avail able Control Technology (BACT) in Air Permit Applications'' 
outlines BACT policy in the state. Drafted in April 2001 it has been 
the primary guidance document for both permittees and protestant for 
BACT assessment. It predates the Texas February 2006 submittal by 
almost five years and continues to be the primary guidance document 
regarding BACT after the submittals; BACT has been consistently applied 
by the TCEQ before and after the submitted changes to Chapter 116 of 
Title 30 of the TAC.
    Response: EPA disagrees with the commenters about the term PSD 
BACT, the flexibility a state has in its definition of PSD BACT and 
that EPA has not made a finding that Texas' BACT definition is contrary 
or less stringent than the Federal definition of PSD BACT. As discussed 
in the September 23, 2009, proposed disapproval of the submitted 2006 
SIP revisions to 30 TAC 116.160, EPA in its original approval of the 
Texas PSD SIP, specifically found that the BACT definition (derived 
from the TCAA) did not meet the federal PSD BACT definition. See 54 FR 
52823 (December 22, 1989) and 57 FR 28093 (July 24, 1992). For proposed 
and final approval of the original Texas PSD SIP, Texas chose to 
incorporate by reference the Federal PSD BACT definition and submitted 
it for approval by EPA as part of the Texas PSD SIP. Upon EPA's 
original approval of the Texas PSD SIP, both EPA and Texas interpreted 
the TCAA BACT definition as being the Minor NSR BACT definition for 
Minor NSR permits.\4\ See 74 FR 48467, at 48472, footnote 4, and 
footnote 1 in this action.
---------------------------------------------------------------------------

    \4\ In a separate action published in today's Federal Register, 
EPA is disapproving the submitted regulatory definition for BACT 
(derived from the TCAA) in 30 TAC 116.10(3) because it is not clear 
that this BACT applies only for Minor NSR. See that notice for 
further information. We wish to note that TCEQ has proposed 
revisions to the definition to clarify its use is only for Minor NSR 
but has not submitted it yet to EPA for action as a SIP revision.
---------------------------------------------------------------------------

    EPA's review was in accordance with the requirements of the CAA. 
EPA is not required to base its proposed disapproval on any 
determination that (a) depended on the definition as applied, and (b) 
yielded a determination less strict than would result from application 
of the ``federal definition.''
    Under EPA's revised major NSR SIP regulations, as promulgated on 
December 31, 2002 (67 FR 80186) and reconsidered with minor changes on 
November 7, 2003 (68 FR 63021), to be approved as meeting the 2002 
revised major NSR SIP requirements, a State submitting a customized 
major NSR SIP revision must demonstrate why its program and definitions 
are in fact at least as stringent as the major NSR revised base 
program. See 67 FR 80185, at 80241. Texas did not submit such a 
demonstration. Furthermore, in the July 16, 2010, SIP revision 
submittal, TCEQ revised 30 TAC 116.160 to incorporate into its PSD 
Program the federal PSD BACT definition in 40 CFR 52.21(b)(12). Based 
upon our evaluation of the July 2010, SIP revision, we conclude that 
Texas has corrected the deficiencies identified in the proposal. See 
response to comment 2 above for further information.
    Comment 6: GCLC commented that TCEQ's three-tier approach to PSD 
BACT determinations meets the requirements of section 165 of the CAA, 
ensuring that facilities receiving PSD permits in the state are 
required to utilize PSD BACT.

[[Page 55983]]

    Response: The issue of how TCEQ implements the Texas PSD SIP to 
make its PSD BACT determinations is not the subject of this rulemaking 
action and therefore outside the scope of this action. The 2006 
submitted revision, if approved, would have removed the PSD BACT 
definition (as defined by the Act) from the Texas PSD SIP. In the July 
16, 2010, SIP submittal, however, TCEQ revised 30 TAC 116.160 to 
incorporate into its PSD Program the federal PSD BACT definition in 40 
CFR 52.21(b)(12). Based upon our evaluation of the July 2010, SIP 
revision, we conclude that Texas has corrected the deficiencies 
identified in the proposal.
    Comment 7: BCCA, TIP, ERCC, and TCC commented that the Texas 
regulations have continuously carved out 40 CFR 52.21(j), concerning 
control technology review, which is the federal BACT requirement, from 
the Texas PSD regulations. This is true from 1992 when EPA first 
granted authority to Texas to administer PSD permitting. As part of the 
1992 approval, EPA explained why the federal control technology review 
requirement of Section 52.21(j) could be properly excluded by Texas 
under the federal Clean Air Act. See 54 FR 52824-52825 (Dec. 22, 1989). 
EPA then stated in the final rule approving the Texas PSD program that 
the federal control technology review requirement, which requires BACT 
for PSD applications, was ``not necessary for approval of the Texas 
Program.'' See 57 FR 28093-28094 (June 24, 1992).
    Response: The 2006 SIP revision submittal removed from the State 
rules the incorporation by reference of the Federal PSD definition of 
``best available control technology (BACT)'' as defined in 
52.21(b)(12). The currently approved Texas PSD SIP includes the Federal 
definition of BACT. See 30 TAC 116.160(a). This submitted SIP revision 
violates the Act and relaxes the requirements of the current Texas SIP. 
In the July 16, 2010, SIP submittal, however, TCEQ revised 30 TAC 
116.160 to incorporate into its PSD Program the federal PSD BACT 
definition in 40 CFR 52.21(b)(12). TCEQ also incorporated by reference 
40 CFR 52.21(j). TCEQ recognized that over the years since EPA's 
original approval of the Texas PSD SIP, there was confusion about the 
difference between the PSD BACT definition and the requirement to 
conduct a PSD BACT determination versus the State's BACT definition and 
the requirement to conduct a Minor NSR BACT determination. Based upon 
our evaluation of the July 2010, SIP revision, we conclude that Texas 
has corrected the deficiencies identified in the proposal and in 
addition addressed a potential ambiguity.
    Comment 8: TCC commented that one can search the entire Texas Clean 
Air Act, which is the sole authority under which TCEQ can issue any 
permits, and find no mention of PSD at all; again, the governing law 
establishes the need for BACT for all permits, major or minor. And the 
governing statute does not define BACT beyond its own terms, leaving 
substantial degrees of freedom for TCEQ to compel the best available 
control technology. TCEQ's implementing rules also do not further 
define BACT at all, either, other than to emphasize the need for giving 
``consideration * * * to the technical practicability and the economic 
reasonableness of reducing or eliminating emissions from the 
facility.''
    Response: See responses to Comments 5 and 7.
    Comment 9: TCC commented that Texas accomplishes the PSD reviews 
required by Part C of Subtitle I of the federal Clean Air Act by 
including various applicability provisions in its rules, but the only 
effect of ``triggering'' PSD review is to require an increment analysis 
(the ``significant deterioration'' review) for all preconstruction 
permits for PSD projects. Again, BACT reviews are universal, and do not 
depend on triggering PSD. (This is one of the great strengths of 
Texas's permitting program, not a weakness). The nature of the BACT 
review doesn't change depending on whether the application triggers 
PSD; TCEQ determines BACT using its 3-tiered process regardless of the 
size of project under review.
    Response: EPA disagrees. See response to Comment 5. Furthermore, 
the implementation by TCEQ of the PSD SIP is outside the scope of this 
rulemaking action.
    Comment 10: TCC commented that EPA may not condition approval of 
Texas's permitting programs on adherence to specific definitions. SIP 
approval of a PSD program is conditioned on accomplishing some very 
general statutory objectives, as outlined in Section 165(a) of the 
federal Clean Air Act, including mechanisms to ensure that each 
proposed major source or modification is subject to the best available 
control technology.\5\ Congress expressly left the particulars to each 
state.\6\ Not even EPA's rules describing its expectations for 
approvable SIPs mandate adoption of the exact definitions. Variations 
are allowed ``if the State specifically demonstrates that the submitted 
definition is more stringent, or at least as stringent, in all 
respects'' as those adopted by EPA.\7\ TCEQ of course has made that 
demonstration in its various SIP submittals over the years, but mostly 
by decades of actual BACT determinations made pursuant to its 
definition. EPA has not identified even one TCEQ BACT determination 
that yielded an inadequate result because of the different definitions. 
In fact, EPA has agreed that the TCEQ BACT review process is perfectly 
adequate.
---------------------------------------------------------------------------

    \5\ CAA Sec.  165(a)(4): 42 U.S.C. 7475(a)(4).
    \6\ CAA Sec.  101(a)(3); 42 U.S.C. 7401(a)(3).
    \7\ 40 CFR 51.166(b).
---------------------------------------------------------------------------

    Response: EPA disagrees. See response to Comment 5. Furthermore, 
TCEQ's implementation of the PSD SIP is outside the scope of this 
rulemaking action.
    Comment 11: ERCC commented that the proposed deficiencies fall far 
short of demonstrating an interference with achieving the national 
standard.
    Response: As noted previously, EPA must evaluate the submitted 
Program based upon the content of the regulations and associated record 
that have been submitted and are currently before EPA for appropriate 
approval or disapproval action. Furthermore, Texas, as a state 
submitting a customized major NSR SIP revision, must demonstrate why 
its program and definitions are in fact at least as stringent as the 
major NSR revised base program. See 67 FR 80185, at 80241. Moreover, 
EPA lacks sufficient information to determine whether the 2006 
submittal would not interfere with NAAQS attainment and RFP. See 
response to comment 5 above for further information. However, in the 
July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to 
incorporate into its PSD Program the federal PSD BACT definition in 40 
CFR 52.21(b)(12), the requirements of 40 CFR 52.21(r)(4), and the 
requirements of 40 CFR 52.21(j). Based upon our evaluation of the July 
2010, SIP revision, we conclude that Texas has corrected the 
deficiencies identified in the proposal. See response to comment 2 
above for further information.
    Comment 12: ERCC commented that the mere removal of a reference to 
the federal definition of BACT does not create a permitting deficiency 
or interfere with attainment. The mere statement that the Texas BACT 
definition differs from the federal regulation fails to explain how it 
interferes with the state SIP. Many States have BACT definitions in 
their EPA-approved SIPs that do not conform, word for word, to the BACT 
statutory language. See Connecticut--CONN. AGENCIES REGS. Sec.  22a-
174-1 (EPA effective date, February 27, 2003);

[[Page 55984]]

Maine--06-096 ME. CODE R. Sec.  100-17 (EPA effective date, November 
21, 2007); New Hampshire--N.H. CODE ADMIN. R. ANN. ENV-A: Sec.  101.13 
(EPA effective date, August 14, 1992); and Oklahoma--OKLA. ADMIN. CODE 
Sec.  252:100-1-3 (EPA effective date, January 7, 2000).
    Response: EPA disagrees. See responses to comments 5 and 11. 
Furthermore, in the July 16, 2010, SIP submittal, TCEQ revised 30 TAC 
116.160 to incorporate into its PSD Program the federal PSD BACT 
definition in 40 CFR 52.21(b)(12). Based upon our evaluation of the 
July 2010, SIP revision, we conclude that Texas has corrected the 
deficiencies identified in the proposal.
    Comment 13: ERCC commented that the both EPA's and Texas' BACT 
definitions require the consideration of technical limitations, such as 
energy and environmental concerns, as well as the economic 
reasonableness of the emissions limitation, in order to determine BACT. 
Compare 40 CFR 51.166(b)(12) with 30 TAC 116.111(2)(C). Further, both 
processes address the same fundamental concepts as expressed in the 
Clean Air Act. The key question is whether the ``state permitting 
program provides a framework for adequate consideration of regulatory 
criteria and consistency within the PSD program.'' In re ConocoPhillips 
Co., PSD Appeal 07-02 slip op. at 30 (EAB June 2, 2008) (quoting In re 
Cardinal, FG Co, 12 E.A.D. 153 at 161 (EAB 2005).
    Response: See the response to comment 5. Based upon our evaluation 
of the July 2010, SIP revision, we conclude that Texas has corrected 
the deficiencies identified in the proposal.
    Comment 14: ERCC commented that to the extent EPA is asserting that 
the TCEQ staff was required to follow the exact ``top down'' approach 
to BACT analysis, and that such an argument has already been disclaimed 
by EPA and the Environmental Appeals Board and rejected by the U.S. 
Supreme Court. As stated by EPA when it actually approved the Texas PSD 
program in 1992, EPA did require Texas to follow EPA's interpretations 
and guidance issued under the Act in the sense that those 
pronouncements have independent status as enforceable provisions of the 
Texas PSD SIP. See 57 FR 28095 (June 24, 1992). During this same 
approval promulgation, EPA expressly confirmed that the State of Texas 
is not required to follow the EPA ``top down'' approach to BACT. Id. at 
28095-6. Likewise in the case of Alaska Department of Environmental 
Conservation v. EPA, 540 U.S. 461, 476 n. 7 (2004), the U.S. Supreme 
Court wrote: ``Nothing in the act or its implementing regulations 
mandates top-down analysis.'' The ability to deviate from the top-down 
analysis is also supported by the Environmental Appeals Board, which 
has recognized in prior rulings the permitting authority's ability to 
vary from the NSR review manual as long as all regulatory criteria are 
considered and applied appropriately. ConocoPhillips, PSD Appeal 07-02 
slip op. at 30 (EAB June 2, 2008) (citing In re Knauf Fiber Glass GmbH, 
8 E.A.D. 121 at 129-30 n. 14, 135 n.25). Absent a showing from EPA that 
the Texas definition of BACT somehow inescapably leads to failure to 
consider and apply the appropriate regulatory criteria, or inexorably 
leads to the NAAQS not being protected, EPA must defer to the State's 
authority under the Clean Air Act to address air quality issues. Texas' 
BACT definition has resulted in some of the most stringent pollution 
control emission rates in the United States. EPA has not identified one 
instance where application of Texas' BACT definition resulted in less 
pollution control than if EPA's top down analysis was used. The issue 
that EPA has identified is non-substantive and solely one of semantics.
    Response: EPA's proposed disapproval is not based on an evaluation 
of the Texas three-tier approach; it is based on an evaluation of the 
submitted revision. See our response to Comments 4, 5 and 11. The 
comments on the approaches and implementation of the PSD SIP by TCEQ 
are outside the scope of this rulemaking action. Furthermore, in the 
July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to 
incorporate into its PSD Program the federal PSD BACT definition in 40 
CFR 52.21(b)(12). Based upon our evaluation of the July 2010, SIP 
revision, we conclude that Texas has corrected the deficiencies 
identified in the proposal.
    Comment 15: GCLC commented that furthermore, EPA has voiced its 
support for Texas three-tier approach during negotiations with TCEQ 
over these issues. While responding to TCEQ submittals, the EPA on 
October 27, 2008, stated that it ``agreed with many'' of the statements 
made by TCEQ defending their BACT program in a June 13, 2008, 
letter.\8\ TCEQ statements included that, to its understanding, the 
three-tiered approach is an acceptable and approved approach by the 
EPA. If the EPA did have concerns with that assessment, the EPA had the 
opportunity to voice them at that time or since Texas (and other 
states) began using this type of three-tiered approach.
---------------------------------------------------------------------------

    \8\ Letter from Carl E. Edlund, Director, EPA Multimedia 
Planning and Permitting Division to Mark Vickery, Executive 
Director, Texas Commission on Environmental Quality. (Oct. 27, 2008) 
available at http://www.tceq.state.tx.us/assets/public/permitting/air/Announcements/epa_response_10_27_08.pdf.
---------------------------------------------------------------------------

    Response: Implementation by the State of its PSD SIP is outside the 
scope of this rulemaking action.
    Comment 16: TCC commented that EPA's proposal to disapprove this 
rule is based in part on false distinctions between what it refers to 
as ``PSD BACT'' and ``Minor NSR BACT.'' Assuming such distinctions, EPA 
concludes that the Texas rules fail to clearly apply the ``PSD 
definition of BACT'' to all actions subject to PSD, and conversely 
fails to delimit the minor NSR definition to activities triggering only 
minor NSR. But there are no distinctions, legal or practical, in Texas 
BACT reviews.
    Response: EPA disagrees. See our response to Comment 5. Based upon 
our evaluation of the July 2010, SIP revision, we conclude that Texas 
has corrected the deficiencies identified in the proposal.
    Comment 17: BCCA and TIP commented that the preamble to the 2006 
revisions to 30 TAC 116.160 in which the incorporations by reference of 
40 CFR 52.21 were changed, demonstrate a consistency with the approach 
taken by the State in the preceding years. The preamble explains the 
incorporation by reference of certain sections of 40 CFR 52.21 and 
further states, ``[o]ther definitions used for the PSD program or 
visibility in Class I areas program are currently in [TCEQ's] rules.'' 
\9\
---------------------------------------------------------------------------

    \9\ 31 Tex. Reg. 519 (Jan. 27, 2006).
---------------------------------------------------------------------------

    Response: The 2006 revisions to 30 TAC 116.160 did not just 
``change'' the incorporations by reference of 40 CFR 52.21; they 
removed two of them entirely. The result is that the submitted 2006 
revision did not meet the Act's PSD requirements and EPA's PSD SIP 
regulations. Moreover, the State did not provide the requisite 
demonstration to show how its customized Major NSR SIP revision was at 
least as stringent as EPA's PSD SIP requirements. Furthermore, in the 
July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to 
incorporate into its PSD Program the federal PSD BACT definition in 40 
CFR 52.21(b)(12) and the provisions of 40 CFR 52.21(r)(4). Based upon 
our evaluation of the July 2010, SIP revision, we conclude that Texas 
has corrected the deficiencies identified in the proposal. See response 
to comment 2 above for further information.

[[Page 55985]]

    Comment 18: BCCA and TIP commented that the appropriate BACT 
definition exists in Texas's rules, as demonstrated by EPA's past 
approval of those rules. All permits Texas has issued under the 
existing permitting program reflect the current TCEQ SIP-approved 
approach to BACT, and are valid and enforceable.
    Response: EPA disagrees that the 2006 SIP revision submittal 
maintained the appropriate PSD BACT definition. See the response to 
Comment 5. Furthermore, in the July 16, 2010, SIP submittal, TCEQ 
revised 30 TAC 116.160 to incorporate into its PSD Program the federal 
PSD BACT definition in 40 CFR 52.21(b)(12). Based upon our evaluation 
of the July 2010, SIP revision, we conclude that Texas has corrected 
the deficiencies identified in the proposal. Comments on the 
implementation by the State of the PSD SIP are outside the scope of 
this rulemaking action.
    Comment 19: TCC commented that Texas law does not create two 
different types of permits, one called a minor NSR permit and one 
called a PSD permit. There is only one kind of pre-construction permit 
described in the Texas Clean Air Act, a ``preconstruction permit'' 
under Texas Health & Safety Code Sec.  382.05 18(b). The issuance of 
all such permits is conditioned on use of ``best available control 
technology.''
    Response: EPA disagrees. See responses to comments 5 and 18. Based 
upon our evaluation of the July 2010, SIP revision, we conclude that 
Texas has corrected the deficiencies identified in the proposal.
    Comment 20: TCC commented that the definitions do not determine 
stringency. The stringency of BACT determinations are not determined by 
definitions, anyway. Even the far wordier ``federal definition'' is but 
a litany of factors that go into what is inevitably a highly 
discretion-laden determination. A more ``specific'' definition, it may 
truly be argued, has the effect of being less stringent, because it 
limits the factors to be considered. Absent a definition of BACT beyond 
its own self-description, TCEQ is free to be even stricter than the 
wordier federal definition. Again, the proposed disapproval fails to 
identify even one determination that (a) depended on the definition 
applied, and (b) yielded a determination less strict than would 
resulted from application of the ``federal definition.''
    Response: See response to comment 5.
    Comment 21: TCC commented that EPA itself does not follow the 
``federal definition.'' EPA is in a difficult position to insist on 
word-for-word adoption when it does not itself follow the federal 
definition. The definition EPA would impose on the states is not the 
one that Congress prescribes. Which federal definition would EPA like 
Texas to follow, the one in its rule or the one in its governing 
statute? In what way does either ``federal definition'' necessarily 
require BACT determinations any more strict than the Texas definition?
    Response: The differences between the regulatory definition of PSD 
BACT at 40 CFR 52.21(b)(12) and the statutory definition of that term 
in section 169(3) of the Act are not significant and the regulatory 
definition of PSD BACT is consistent with the statutory definition. We 
addressed the reasons why the federal BACT definition is more stringent 
than the Texas definition in the proposal at 74 FR 48467, at 48472. 
Also see our response to comment 5 above for further information. To 
the extent this comment relates to TCEQ's implementation of the PSD 
SIP, it is outside the scope of this rulemaking action. Finally, based 
upon our evaluation of the July 2010, SIP revision, we conclude that 
Texas has corrected the deficiencies identified in the proposal.
    Comment 22: TCC commented that the proposed disapproval draws on 
distinctions without differences. The definition is designed to 
identify relevant factors that go into what is ultimately a highly 
discretion-laden determination. No matter the definition, the objective 
is the same. And no matter the definitions, the resources consulted for 
each BACT determination are the same. In Texas, for example, all BACT 
determinations are made using its 3-tier process, which elaborates in 
detail how TCEQ makes the determinations. All reviews are based on 
consideration of national determinations codified in the RACT/BACT/LAER 
Clearinghouse; EPA has agreed that this process yields results 
equivalent to its top-down approach, which itself is not compelled by 
any definition. In both cases, responsible agencies make discretionary 
determinations based on aggressive efforts to ensure that new 
technologies are applied when they become available to new sources. 
Pharisaical parsing over definitions does not accomplish sound BACT 
determinations, which instead result from good faith efforts by 
responsible regulators.
    Response: EPA disagrees. See responses to comments 5, 7, and 14. 
TCEQ's implementation of the PSD SIP is outside the scope of this 
rulemaking action. Based upon our evaluation of the July 2010, SIP 
revision, we conclude that Texas has corrected the deficiencies 
identified in the proposal.
    Comment 23: TCC commented that to the very extent there were 
differences in a result based on the definition; EPA would be 
prohibited from disapproving the definition. EPA presumes without proof 
a difference in result arising out of TCEQ's BACT definition. But, 
regardless, EPA cannot elect to approve the broader reach of the Texas 
program (e.g., application of BACT to all sources), but disapprove what 
it perceives to be a lesser definition of BACT. States are the primary 
architects of their implementation plans, and EPA is not free to change 
the state's choices by selective approvals of interrelated elements. 
Accordingly, the extent to which EPA would make any substantive changes 
in TCEQ's permitting program by selectively disapproving its BACT 
definition is the very extent to which it is forbidden to disapprove 
it. EPA must either accept the permit program or reject it in its 
entirety, and not cut it to pieces so that it looks like a ransom note.
    Response: EPA disagrees. See response to Comments 5, 7, and 14. 
TCEQ's implementation of the PSD SIP is outside the scope of this 
rulemaking action. Based upon our evaluation of the July 2010, SIP 
revision, we conclude that Texas has corrected the deficiencies 
identified in the proposal.
    Comment 24: The Clinic commented (under Docket No. EPA-R06-OAR-
2006-0133) on EPA's proposed disapproval of TCEQ's rules that removed a 
requirement under 40 CFR 52.21(r)(4) that provides that if a project 
becomes a major stationery source or major modification solely because 
or relaxation of an enforceable limitation on the source or 
modifications capacity to emit the pollutant, then the source or 
modification is subject to PSD as though construction had not 
commenced. This provision prohibits the use of ``sham'' operational 
limits that a source may take to avoid PSD and provides an extra 
deterrent to facilities that may take such limits that they know they 
cannot achieve in order to avoid federal permitting. Approval of this 
deletion also violates the anti-backsliding provisions in 42 U.S.C. 
7515 and would render the Texas SIP less stringent that federal 
requirements and inadequate for preventing significant deterioration of 
air quality.
    Response: EPA appreciates the Clinic's support for the proposal. In 
the July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to 
incorporate into its PSD Program the federal requirements of 40 CFR 
52.21(r)(4). Based upon our evaluation of the July 2010, SIP revision, 
we conclude that Texas has corrected the deficiencies

[[Page 55986]]

identified in the proposal. See response to comment 2 above for further 
information.

V. What are the grounds for approval?

A. Adoption of Cross-Reference to 40 CFR 52.21(b)(12), Which Is the 
Federal Definition of Best Available Control Technology (BACT), and the 
Cross-Reference of 40 CFR 52.21(j) Which Implements the Requirement for 
a PSD BACT Analysis

    The February 1, 2006, submittal of revisions to 30 TAC 116.160 
removed the reference to the definition of federal PSD BACT in 40 CFR 
52.21(b)(12). On September 23, 2009, EPA proposed to disapprove the 
2006 submittal due in part to its removal of this definition. EPA 
observed that under the PSD Program, PSD BACT is a central requirement 
of the Act and that the State's submission of a revision that removes 
the requirement that all new major stationary sources and modifications 
meet, at a minimum, PSD BACT as defined by the Act creates a situation 
where the submitted SIP revision would violate the Act and also be a 
relaxation of the requirements of the Texas PSD SIP. See the proposed 
disapproval at 74 FR 48467, at 48472. On July 16, 2010, Texas submitted 
a revision to 30 TAC 116.160 that reinstates the federal PSD BACT 
definition in 40 CFR 52.21(b)(12). See submitted 30 TAC 
116.160(c)(1)(A). The revision also includes a reference to 40 CFR 
52.21(j) which implements the BACT definition. See submitted 30 TAC 
116.160(c)(2)(A).
    The adoption of the reference to the federal definition of PSD BACT 
in 40 CFR 52.21(b)(12) corrects a deficiency in the 2006 submittal 
because it reinstates a requirement that is a central requirement of 
the Act. Approval of this 2010 revision maintains the Texas PSD SIP as 
what EPA first approved in 1992.
    The TCEQ also submitted on July 16, 2010, a revision to 30 TACT 
116.160 that adds a reference to 40 CFR 52.21(j)--Control technology 
review. This provision was not referenced in the Texas PSD SIP approved 
in 1992. Texas chose to reference 40 CFR 52.21(j) because of the 
confusion over the years about the PSD versus the Minor NSR BACT 
determination requirements. It complements the reinserted federal 
definition of PSD BACT. Accordingly, EPA is approving the reinstatement 
of the reference to federal PSD BACT in 40 CFR 52.21(b)(21) and the 
addition of a reference to 40 CFR 52.21(j).

B. Adoption of Cross-Reference to 40 CFR 52.21(r)(4), Which Relates to 
PSD Review for Projects That Become Major Stationary Sources or Major 
Modifications Solely Because of Relaxation of an Enforceable Limitation 
on the Source or Modification Capacity to Emit a Pollutant

    The February 1, 2006, submittal of revisions to 30 TAC 116.160 also 
removed the reference to 40 CFR 52.21(r)(4) that the State had 
previously incorporated into its PSD SIP. This provision specifies that 
if a project becomes a major stationary source or major modification 
solely because of a relaxation of an enforceable limitation on the 
source's or modification's capacity to emit a pollutant, then the 
source or modification is subject to PSD as if construction had not yet 
commenced. The removal of this requirement meant that the State's rules 
would not regulate these types of major stationary sources or major 
modifications as stringently as the federal program. See the proposed 
disapproval at 74 FR 48467, at 48472. On July 16, 2010, Texas submitted 
a revision to 30 TAC 116.160 that reinstates the reference to 40 CFR 
52.21(r)(4). See submitted 30 TAC 116.160(c)(2)(C).
    The adoption of the reference to 40 CFR 52.21(r)(4) in the July 
2010 submittal corrects a deficiency in the 2006 submittal because it 
reinstates a requirement that is mandated in the federal program. 
Approval of this 2010 revision maintains the Texas PSD SIP to its 
status when EPA first approved the SIP in 1992. Accordingly, EPA is 
approving the reinstatement of the reference to 40 CFR 52.21(r)(4).

C. How EPA's action does not affect the substance of the Texas PSD SIP 
originally approved in 1992?

    The 2006 and 2010 SIP revisions to 30 TAC 116.160 reorganized the 
sections but made no substantive changes to the approved SIP except 
that the 2006 submittal omitted references to the definition of PSD 
BACT in 40 CFR 52.21(b)(12) and the requirements of 40 CFR 52.21(r)(4) 
which resulted in the 2006 revisions not meeting the federal 
requirements. See sections IV.A and B above. The 2010 SIP revision 
submittal reinstates these provisions into the State's rules and 
corrects the above-identified deficiencies. Texas also added a 
reference to 40 CFR 52.21(j)--Control technology review--which 
complements the implementation of the definition PSD BACT. The specific 
changes are described in section II of this notice. A detailed outline 
of the specific changes made to 30 TAC 116.160 by the 2006 and 2010 SIP 
revisions is available in the Technical Support Document which is in 
the docket for this action. Our evaluation of these changes 
demonstrates that the submitted changes to the Texas PSD Program are 
insignificant and with the changes submitted in 2010 essentially 
restore the Program to what it was in 1992. The 2006 revision also 
removed the definitions of ``building, structure, facility, or 
installation'' and ``secondary emissions'' in 30 TAC 116.160(c)(1) and 
(2), respectively. The removal of these definitions is not significant 
because these terms are also defined using the same definitions in the 
Texas SIP at 30 TAC 116.12(4) and (17), respectively, as approved at 74 
FR 11851 (March 20, 2009).
    For further information see:
     The 1989 proposed Texas PSD SIP approval at 54 FR 52823, 
at 52824-52825 (December 22, 1989);
     The final Texas PSD SIP approval at 57 FR 28093, at 28095-
28096 (July 24, 1992);
     The proposed disapproval of the February 1, 2006, 
submitted revisions to 30 TAC 116.160 at 74 FR 48467, at 48472;
     The submitted SIP revisions to 30 TAC 116.160 dated July 
16, 2010;
     The background for this action in section II of this 
preamble;
     The responses to comments 1 through 26 in section III of 
this preamble; and
     The technical support document for this action.

VI. Final Action

    The EPA is approving certain revisions to the Texas PSD SIP, 
submitted February 1, 2006, and as amended July 16, 2010, which apply 
to 30 TAC Chapter 116--Control of Air Pollution by Permits for New 
Construction or Modification. EPA finds that the July 16, 2010, 
submittal corrects these deficiencies in the February 1, 2006, 
submission identified in the September 23, 2009, proposed disapproval 
of revisions to 30 TAC 116.160. These revisions submitted in 2006 were 
nonsubstantive except for the removal of the PSD BACT definition and 
the removal of the reference to 40 CFR 52.21(r)(4). With the 
restoration of the PSD BACT definition and the reference to 40 CFR 
52.21(r)(4) and the addition of a reference to 40 CFR 52.21(j) in the 
Texas NSR Program, we find that the aspects of the submitted PSD 
Program covered in these submissions meet section 110 and part C of the 
Act.

[[Page 55987]]

    EPA is publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no relevant adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if relevant adverse 
comments are received. This rule will be effective on November 15, 2010 
without further notice unless we receive relevant adverse comment by 
October 15, 2010. If we receive relevant adverse comments, we will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. We will address all public 
comments in a subsequent final rule based on the proposed rule. We will 
not institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
we receive relevant adverse comment on an amendment, paragraph, or 
section of this rule and if that provision may be severed from the 
remainder of the rule, we may adopt as final those provisions of the 
rule that are not the subject of an adverse comment.

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 15, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon Monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides, 
Volatile organic compounds.

    Dated: August 31, 2010.
Al Armendariz,
Regional Administrator, Region 6.

0
Accordingly, 40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart SS--Texas

0
2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended under Chapter 116 (Reg 6)--Control of Air 
Pollution by Permits for New Construction or Modification, Subchapter 
B--New Source Review Permits, Division 6--Prevention of Significant 
Deterioration Review, by revising the entry for Section 116.160--
Prevention of Significant Deterioration Review to read as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

[[Page 55988]]

                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                       State approval/
         State citation              Title/subject     submittal date   EPA approval date        Explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
         Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification

----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                     Subchapter B--New Source Review Permits

----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                           Division 6--Prevention of Significant Deterioration Review
----------------------------------------------------------------------------------------------------------------
Section 116.160................  Prevention of               6/2/2010  9/15/2010 [Insert    ....................
                                  Significant                           FR page number
                                  Deterioration                         where document
                                  Requirements.                         begins].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2010-22672 Filed 9-14-10; 8:45 am]
BILLING CODE 6560-50-P
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