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[Federal Register Volume 80, Number 138 (Monday, July 20, 2015)]
[Rules and Regulations]
[Pages 42727-42730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17472]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2013-0542; FRL-9930-44-Region-6]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is fully approving revisions to the Texas New Source 
Review (NSR) State Implementation Plan (SIP) to establish the Texas 
Minor NSR Flexible Permits Program (FPP), submitted by the Texas 
Commission on Environmental Quality (TCEQ). The approval was predicated 
on the TCEQ meeting its commitment outlined in its letter dated 
December 9, 2013, to adopt certain minor clarifications to the Flexible 
Permit Program (FPP) by November 30, 2014. The TCEQ submitted the 
revised program rules to meet its commitment on July 31, 2014. The EPA 
is finalizing this action under section 110 of the Clean Air Act (CAA).

DATES: This final rule will be effective August 19, 2015.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID

[[Page 42728]]

No. EPA-R06-OAR-2013-0542. 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., Confidential Business 
Information or other information the disclosure of which is restricted 
by the 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 1200, Dallas, 
Texas 75202-2733. While all documents in the docket are listed in the 
index, some information may be publicly available only at the hard copy 
location (e.g., copyrighted material), and some may not be publicly 
available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Ms. Stephanie Kordzi, telephone 214-
665-7520; email address kordzi.stephanie@epa.gov.

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

Table of Contents

I. Background
II. Response to Comments
III. When is this action effective?
IV. Final Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background

    On July 14, 2014, the EPA took final rulemaking action 
conditionally approving revisions to the Texas NSR SIP to establish the 
Texas Minor NSR Flexible Permits Program, submitted by the TCEQ. The 
EPA's proposed conditional approval was published in 79 FR 8368, 
February 12, 2014. The conditional approval was predicated on a 
commitment from TCEQ in a letter dated December 9, 2013, to adopt 
certain minor clarifications to the FPP by November 30, 2014. (79 FR 
40666, July 14, 2014).
    On September 12, 2014, Environmental Integrity Project, et al., 
filed a Petition for Review challenging the EPA conditional approval of 
the FPP with the Fifth Circuit Court of Appeals. The U.S. Department of 
Justice submitted the response to the Petition, Case No. 14-60649, for 
the EPA on March 2, 2015. The Appeal is on-going as of the date of 
publication of this notice.
    On July 31, 2014, the TCEQ submitted revisions to the Texas NSR 
SIP. The rulemaking properly structured the rules within and according 
to the rulemaking requirements of the Texas Administrative Procedure 
Act and the Texas Administrative Code. The EPA proposed full approval 
of the FPP (79 FR 7875, December 31, 2014) based on its determination 
that the SIP revisions complied with section 110(k) of the Federal 
Clean Air Act (the Act or CAA) and was consistent with the EPA's 
regulations and policies. These revisions supported this action to 
convert the approved conditional FPP to a fully approved FPP. The EPA 
reopened the public notice period for an additional 30 days (80 FR 
21199, April 17, 2015), due to items being inadvertently omitted from 
the docket during the public notice period beginning December 31, 2014.

II. Response to Comments

    The EPA proposed an initial comment period of 30 days. We received 
comments from 3 organizations during the initial comment period as 
follows: The TCEQ, Baker Botts, and the Environmental Integrity Project 
(EIP) on behalf of the Environmental Justice Advocacy Services, 
Community in Power & Development Association, Citizens for 
Environmental Justice, Air Alliance Houston, Texas Campaign for the 
Environment, and the Texas Impact. All comments previously submitted 
under the first public notice for this action are being responded to as 
appropriate and the commenters were informed that they did not need to 
resubmit them during the reopened public notice period. The EPA did not 
receive any additional comments during the reopened public notice 
period. All comment letters can be found in their entirety in the 
docket for this rulemaking.
    Comment 1: Baker Botts stated they supported EPA's proposed 
approval of the Texas FPP. They believe it complies with the federal 
Clean Air Act. Further they believe that flexible permits are an 
essential part of the Texas air quality permitting program and the 
program has contributed to marked and sustained improvements in Texas 
air quality. They submitted information from TCEQ's Web site which 
documents reductions in ozone and other pollutants in Texas.
    Response 1: The EPA appreciates the support for our final approval. 
No changes were made to the final rule as a result of this comment.
    Comment 2: The TCEQ concurs with the EPA's proposed determination 
that the TCEQ fulfilled its December 9, 2013, commitment to submit the 
FPP SIP revision. The TCEQ also concurs with EPA's proposed finding 
that the TCEQ has satisfied all the elements of the EPA's final 
conditional approval (79 FR 40666, July 14, 2014). The TCEQ submitted 
on July 31, 2014, the following rules: 30 TAC Sections 116.13, 116.710, 
116.711(1), (2)(A)(B) and (C)(i) and (ii), (D)-(J), and (L)-(N); 
116.715(a)-(e) and (f)(1) and (2)(B); 116.716; 116.717; 116.718; 
116.721; and 116.765.
    Response 2: The EPA appreciates the support for our final approval 
of the rule. No changes were made to the final rule as a result of this 
comment.
    Comment 3: The EIP stated the following: ``this full approval 
action is non-substantive, it is not the agency action we seek to, or 
intend to, challenge.'' EIP did resubmit their April 4, 2014, comments 
on the proposed conditional approval (Attachment A), and their January 
27, 2015, Fifth Circuit Court of Appeals brief (Attachment B).
    Response 3: The EIP did not submit comments on the substance of 
this action, which addressed the rules being properly structured within 
and according to the rulemaking requirements of the Texas 
Administrative Procedure Act and the Texas Administrative Code. The EPA 
addressed the April 4, 2014, comments that the EIP resubmitted in its 
response to comments contained in the final conditional approval. (79 
FR 40666, July 14, 2014). Further, the Brief of Respondent U.S. 
Environmental Protection Agency, Case No. 14-60649, filed on March 2, 
2015, replies to the issues raised by EIP in its January 27, 2015, 
Fifth Circuit Court of Appeals brief. EPA is incorporating by reference 
the EPA's Reply Brief in this response to the EIP's resubmitted 
comments. It can be found in the Docket to this action.

III. When is this action effective?

    The EPA has determined that today's final approval of the Texas FPP 
is subject to the requirement to delay a rule's effective date until 30 
days after publication in 5 U.S.C. 553(d) of the APA; therefore, the 
rule, will become effective 30 days after publication.

IV. Final Action

    After careful consideration of submitted revisions to meet the 
requirements of the conditional approval and of the comments received 
and the responses to each comment provided above, and under section 110 
of the Act, the EPA is finalizing our proposal to convert the 
conditional approval of the FPP to a full, final action. Further, we 
have found it complies with section 110(l) of the Act.

[[Page 42729]]

We are making the following revisions to the Texas SIP:
     Revisions to 30 TAC Section 116.13--Flexible Permit 
Definitions.
     Revisions to 30 TAC Section 116.710--Applicability.
     Revisions to 30 TAC Section 116.711(1), (2)(A), (B) and 
(C)(i) and (ii), (D)-(J), and (L)-(N)--Flexible Permit Application.
     Revisions to 30 TAC Section 116.715(a)-(e) and (f)(1) and 
(2)(B)--General and Special Conditions.
     Revisions to 30 TAC Section 116.716--Emission Caps and 
Individual Emission Limitations.
     Revisions to 30 TAC Section 116.717--Implementation 
Schedule for Additional Controls.
     Revisions to 30 TAC Section 116.718--Significant Emission 
Increase.
     Revisions to 30 TAC Section 116.720--Limitation of 
Physical and Operational Changes.
     Revisions to 30 TAC Section 116.721--Amendments and 
Alterations.
     Revisions to 30 TAC Section 116.740(a)--Public Notice.
     Revisions to 30 TAC Section 116.750--Flexible Permit Fee. 
Revisions to 30 TAC Section 116.765--Compliance Schedule.
    The EPA has determined that the revised rule satisfies the December 
9, 2013, Commitment Letter which was submitted in a timely manner.

V. Incorporation by Reference

    In this rule, we are finalizing regulatory text that includes 
incorporation by reference. In accordance with the requirements of 1 
CFR 51.5, we are finalizing the incorporation by reference of the 
revisions to the Texas regulations as described in the Final Action 
section above. We have made, and will continue to make, these documents 
generally available electronically through www.regulations.gov and/or 
in hard copy at the EPA Region 6 office.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. See, 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 September 18, 2015. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposed of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: June 30, 2015.
Ron Curry,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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. In Sec.  52.2270(c), the table titled ``EPA Approved Regulations in 
the Texas SIP'' is amended by revising the entries for sections 116.13, 
116.710, 116,711, 116.715, 116.716, 116.717, 116.718, 116.720, 116.721, 
116.740, 116.750, and 116.765 to read as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

[[Page 42730]]

                                    EPA Approved Regulations in the Texas SIP
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                                                     State approval/
       State  citation            Title/Subject          Submittal     EPA Approval date         Explanation
                                                          date
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                                                  * * * * * * *
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          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
                                            Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 116.13..............  Flexible Permit             7/31/2014  7/20/2015 [Insert      ....................
                               Definitions.                           Federal Register
                                                                      citation].
 
                                                  * * * * * * *
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                                         Subchapter G--Flexible Permits
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Section 116.710.............  Applicability........       7/31/2014  7/20/2015 [Insert      ....................
                                                                      Federal Register
                                                                      citation].
Section 116.711.............  Flexible Permit             7/31/2014  7/20/2015 [Insert      SIP includes 30 TAC
                               Application.                           Federal Register       116.711(1), (2)(A),
                                                                      citation].             (B) and (C)(i) and
                                                                                             (ii), (D)-(J), and
                                                                                             (L)-(N)
 
                                                  * * * * * * *
Section 116.715.............  General and Special         7/31/2014  7/20/2015 [Insert      SIP includes 30 TAC
                               Conditions.                            Federal Register       116.715(a)-(e) and
                                                                      citation].             (f)(1) and (2)(B)
Section 116.716.............  Emission Caps and           7/31/2014  7/20/2015 [Insert      ....................
                               Individual Emission                    Federal Register
                               Limitations.                           citation].
Section 116.717.............  Implementation              7/31/2014  7/20/2015 [Insert      ....................
                               Schedule for                           Federal Register
                               Additional Controls.                   citation].
Section 116.718.............  Significant Emission        7/31/2014  7/20/2015 [Insert      ....................
                               Increase.                              Federal Register
                                                                      citation].
Section 116.720.............  Limitation on               7/31/2014  7/20/2015 [Insert      ....................
                               Physical and                           Federal Register
                               Operational Changes.                   citation].
Section 116.721.............  Amendments and              7/31/2014  7/20/2015 [Insert      ....................
                               Alterations.                           Federal Register
                                                                      citation].
 
                                                  * * * * * * *
Section 116.740.............  Public Notice and           7/31/2014  7/20/2015 [Insert      SIP includes 30 TAC
                               Comment.                               Federal Register       Section 116.740(a).
                                                                      citation].
Section 116.750.............  Flexible Permit Fee..       7/31/2014  7/20/2015 [Insert      ....................
                                                                      Federal Register
                                                                      citation].
 
                                                  * * * * * * *
Section 116.765.............  Compliance Schedule..       7/31/2014  7/20/2015 [Insert      SIP includes 30 TAC
                                                                      Federal Register       Section 116.765(b)
                                                                      citation].             and (c).
 
                                                  * * * * * * *
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[FR Doc. 2015-17472 Filed 7-17-15; 8:45 am]
 BILLING CODE 6560-50-P
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