Thursday, 

July 15, 2010 

Part III 

Environmental 

Protection Agency 

40 CFR Part 52 

Approval and Promulgation of 

Implementation Plans; Texas; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Flexible 

Permits; Final Rule 

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41312 Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0032; FRL–9174– 

1] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Flexible Permits 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

disapprove revisions to the SIP 

submitted by the State of Texas that 

relate to the State’s Flexible Permits 

Program (the Texas Flexible Permits 

Program or the Program). EPA is 

disapproving the Texas Flexible Permits 

Program because it does not meet the 

Minor NSR SIP requirements nor does it 

meet the NSR SIP requirements for a 

substitute Major NSR SIP revision. We 

are taking this action under section 110, 

part C, and part D, of Title I of the 

Federal Clean Air Act (the Act or CAA). 

DATES: This rule is effective on August 

16, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2005–TX–0032. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 Freedom of 

Information Act Review Room between 

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

weekdays except for legal holidays. 

Contact the person listed in the FOR

FURTHER INFORMATION CONTACT

paragraph below 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 submittals, which are part 

of the EPA record, are 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, the 

following terms have the meanings 

described below: 

• ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. 

• ‘‘Act’’ and ‘‘CAA’’ mean the Federal 

Clean Air Act. 

• ‘‘40 CFR’’ means Title 40 of the 

Code of Federal Regulations—Protection 

of the Environment. 

• ‘‘SIP’’ means State Implementation 

Plan established under section 110 of 

the Act. 

• ‘‘NSR’’ means new source review, a 

phrase intended to encompass the 

statutory and regulatory programs that 

regulate the construction and 

modification of stationary sources as 

provided under CAA Title I, section 

110(a)(2)(C) and parts C and D, and 40 

CFR 51.160 through 51.166. 

• ‘‘Minor NSR’’ means NSR 

established under section 110 of the Act 

and 40 CFR 51.160. 

• ‘‘NNSR’’ means nonattainment NSR 

established under Title I, section 110 

and part D of the Act, and 40 CFR 

51.165. 

• ‘‘PSD’’ means prevention of 

significant deterioration of air quality 

established under Title I, section 110 

and part C of the Act, and 40 CFR 

51.166. 

• ‘‘Major NSR’’ means any new or 

modified source that is subject to NNSR 

and/or PSD. 

• ‘‘Program’’ means the SIP revision 

submittals from the TCEQ concerning 

the Texas Flexible Permits State 

Program. 

• ‘‘TSD’’ means the Technical Support 

Document for this action. 

• ‘‘NAAQS’’ means any national 

ambient air quality standard established 

under 40 CFR part 50. 

• ‘‘MRR’’ means monitoring, 

reporting, and recordkeeping 

requirements. 

Table of Contents 

I. What action is EPA taking? 

II. What is the background? 

A. Summary of Our Proposed Action 

B. Summary of the Submittals Addressed 

in This Final Action 

C. Other Relevant Actions on the Texas 

Permitting SIP Revision Submittals 

III. Response to Comments 

A. General Comments 

B. Whether the Flexible Permits Program Is 

Clearly a Minor, Not a Major, NSR SIP 

Revision 

C. Whether the Flexible Permits Program 

Meets the Requirements for a Substitute 

Major NSR SIP Revision 

1. General Comment on Whether the 

Program is a Substitute Major NSR SIP 

Revision 

2. Requirements for Major NSR 

Applicability Determinations 

3. Circumvention of Major NSR 

4. Use of Allowable Emissions in Major 

NSR 

5. Retention of Major NSR Permit Terms 

and Conditions 

6. Protection of the NAAQS Attainment 

Under Major NSR 

D. Whether the Flexible Permits Program 

Meets the Requirements for a Minor NSR 

SIP Revision 

1. Applicability for a Minor NSR Program 

2. Establishment of the Emission Cap 

Under Minor NSR 

3. Enforceability of a Minor NSR Program 

4. Revocation of Major NSR Permits Under 

a Minor NSR Program 

5. Protection of the NAAQS Under a Minor 

NSR Program 

E. Definition of Account 

F. Public Participation 

IV. What are the grounds for this disapproval 

action of the Texas Flexible Permits State 

Program? 

A. The Texas Flexible Permits Program Is 

Unclear Whether it is for a Major or 

Minor NSR SIP Revision 

B. The Texas Flexible Permits Program Is 

Not Approvable as a Substitute Major 

NSR SIP Revision 

C. The Texas Flexible Permits Program Is 

Not Approvable as a Minor NSR SIP 

Revision 

D. The Texas Flexible Permits Program 

Does Not Meet the NSR Public 

Participation Requirements 

E. Definition of ‘‘Account’’ 

V. Final Action 

VI. Statutory and Executive Order Reviews 

I. What action is EPA taking? 

EPA is taking final action to 

disapprove the Texas Flexible Permits 

State Program, as submitted by Texas on 

November 29, 1994, as revised by 

severable portions of the March 13, 

1996, SIP revision submittal, and 

severable portions of the July 22, 1998 

SIP revision submittal that repealed and 

replaced portions of, as well as revised, 

the 1994 submittal and repealed and 

replaced all of the 1996 submittal; and 

as revised by severable portions of the 

October 25, 1999; September 11, 2000; 

April 12, 2001; September 4, 2002; 

October 4, 2002; and September 25, 

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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 41313 

2003; SIP revision submittals. These 

submittals include revisions to Title 30 

of the Texas Administrative Code (30 

TAC) at 30 TAC Chapter 116—Control 

of Air Pollution by Permits for New 

Construction or Modification. This 

includes the following regulations 

under Chapter 116: 30 TAC 

116.110(a)(3), 30 TAC Subchapter G– 

Flexible Permits, the definitions in 30 

TAC 116.13—Flexible Permit 

Definitions, and the definition in 30 

TAC 116.10(11)(F) of ‘‘modification of 

existing facility.’’ These State 

regulations and definitions do not meet 

the requirements of the Act and EPA’s 

NSR regulations. EPA has concluded 

that none of these identified elements 

for the submitted Flexible Permits 

Program is severable from each other. 

EPA proposed an action for the above 

SIP revision submittals on September 

23, 2009 (74 FR 48480). We accepted 

comments from the public on this 

proposal from September 23, 2009, until 

November 23, 2009. A summary of the 

comments received and our evaluation 

thereof is discussed in section III below. 

In the proposal and in the Technical 

Support Document (TSD), we described 

our basis for the actions identified 

above. The reader should refer to the 

proposal, the TSD, section IV of this 

preamble, and the Response to 

Comments in section III of this preamble 

for additional information relating to 

our final action. 

EPA is disapproving the submitted 

Texas Flexible Permits State Program as 

not meeting the requirements for a 

Minor NSR SIP revision. Our grounds 

for disapproval as a Minor NSR SIP 

revision include the following: 

• The submitted Program has no 

express regulatory prohibition clearly 

limiting its use to Minor NSR and has 

no regulatory provision clearly 

prohibiting the use of this submitted 

Program from circumventing the Major 

NSR SIP requirements, thereby 

potentially exempting new major 

stationary sources and major 

modifications from the EPA Major NSR 

SIP requirements; 

• It is not an enforceable NSR 

permitting program. The submitted 

Program lacks requirements necessary 

for enforcement and assurance of 

compliance. There are no specific upfront methodologies in the Program to 

be able to determine compliance. It fails 

to meet the enforceability requirements 

as a program or by a holder of a Flexible 

Permit, and it cannot assure compliance 

with the Program or of the affected 

source; 

• It lacks the necessary more 

specialized monitoring, recordkeeping, 

and reporting (MRR) requirements 

required for this type of Minor NSR 

program, as selected by Texas, to ensure 

accountability and provide a means to 

determine compliance. The submitted 

Program is generic concerning the types 

of monitoring that is required rather 

than identifying the employment of 

specific monitoring approaches, 

providing the technical specifications 

for each of the specific allowable 

monitoring systems, and requiring 

replicable procedures for the approval 

of any alternative monitoring system. It 

also lacks the replicable procedures that 

are necessary to ensure that (1) adequate 

monitoring is required that would 

accurately determine emissions under 

the Flexible Permit cap, (2) the Program 

is based upon sound science and meets 

generally acceptable scientific 

procedures for data quality and 

manipulation; and (3) the information 

generated by such system meets 

minimum legal requirements for 

admissibility in a judicial proceeding to 

enforce the Flexible Permit; 

• It lacks replicable, specific, 

established implementation procedures 

for establishing the emissions cap in a 

Minor NSR Flexible Permit; 

• It fails to ensure that the terms and 

conditions of Major NSR SIP permits are 

retained. Major stationary sources and 

major modifications can use this 

submitted Program to fundamentally 

change the way they comply with 

specific terms and conditions 

established in their Major NSR SIP 

permits. Holders of Major NSR SIP 

permits are not prohibited from using 

the submitted Program’s allowablesbased emissions cap. The Act prohibits 

the use of an allowables-based cap for 

Major NSR SIP permittees; 

• It fails to meet the statutory and 

regulatory requirements for a Minor 

NSR SIP revision and is not consistent 

with EPA policy and guidance on Minor 

NSR SIP revisions; and 

• Based upon, among other things, 

the lack of any objective, replicable 

methodology for establishing the 

emission cap, the too broad director 

discretion provision regarding whether 

or not to include MRR conditions in a 

Flexible Permit, the lack of sufficient 

MRR requirements for this type of 

permit program, and the lack of 

enforceability, EPA lacks sufficient 

information to determine that the 

requested revision to add the new 

permit option to the Texas Minor NSR 

SIP will not interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress (RFP), or any other requirement 

of the Act. 

We are disapproving the submitted 

Texas Flexible Permits State Program as 

not meeting the requirements for a 

substitute Major NSR SIP revision. EPA 

understands that the TCEQ intended for 

the submitted Program to be a Minor 

NSR program but we are required to 

review it as a substitute Major NSR SIP 

revision because the State should have 

included express language stating that, 

as it did in the two other Minor NSR SIP 

alternative permit options (Standard 

Permits and Permits by Rule), that the 

submitted Program is clearly limited to 

Minor NSR and prohibits circumvention 

of Major NSR. Our grounds for 

disapproval as a substitute Major NSR 

SIP revision include the following: 

• It is not clearly limited to Minor 

NSR thereby potentially exempting new 

major stationary sources to construct 

and major modifications to occur 

without a Major NSR permit; 

• It has no regulatory provisions 

clearly prohibiting the use of this 

Program from circumventing the Major 

NSR SIP requirements, thereby allowing 

sources to use a Flexible Permit to avoid 

the requirement to obtain 

preconstruction permit authorizations 

for projects that would otherwise 

require a Major NSR preconstruction 

permit; 

• It does not include a demonstration 

from the TCEQ, as required by 40 CFR 

51.165(a)(2)(ii) and 51.166(a)(7)(iv), 

showing how the use of ‘‘modification’’ 

is at least as stringent as the definition 

of ‘‘modification’’ in the EPA Major NSR 

SIP program and meets the Act; 

• It does not include a demonstration 

from the TCEQ, as required by 40 CFR 

51.165(a)(2)(ii) and 51.166(a)(7)(iv), 

showing the submitted Program is at 

least as stringent as the EPA Major NSR 

SIP program; 

• It does not include the requirement 

to make Major NSR applicability 

determinations based on actual 

emissions and on emissions increases 

and decreases (netting) that occur 

within a major stationary source; 

• To the extent that major stationary 

sources and major modifications are 

exempted from Major NSR, it fails to 

meet the statutory and regulatory 

requirements for a Major NSR SIP 

revision and is not consistent with EPA 

policy and guidance on Major NSR SIP 

revisions; 

• Because it fails to include, among 

other things, the required demonstration 

from the State showing how the 

customized Major NSR SIP revision is in 

fact as stringent as EPA’s Major NSR 

revised program, any objective, 

replicable methodology for calculating 

the emissions cap, provides too broad 

director discretion regarding whether or 

not to include monitoring, 

recordkeeping, and reporting (MRR) 

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41314 Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 

conditions in a Flexible Permit, lacks 

sufficient MRR requirements for this 

type of permit program, and is not 

enforceable, EPA lacks sufficient 

information to make a finding that the 

submitted Program will ensure 

protection of the national ambient air 

quality standards (NAAQS), and 

noninterference with the Texas SIP 

control strategies and RFP. 

The provisions in these submittals 

relating to the Texas Flexible Permits 

State Program that include the Chapter 

116 regulatory provisions and the 

nonseverab1e definitions in the Flexible 

Permits Definitions and the General 

Definitions were not submitted to meet 

a mandatory requirement of the Act. 

Therefore, this final action to 

disapprove the submitted Texas Flexible 

Permits State Program does not trigger a 

sanctions or Federal Implementation 

Plan clock. See CAA section l79(a). 

II. What is the background? 

A. Summary of Our Proposed Action 

On September 23, 2009, EPA 

proposed to disapprove revisions to the 

SIP submitted by the State of Texas that 

relate to the Flexible Permits Program. 

These affected provisions include 

regulatory provisions at 30 TAC 

116.110(a)(3) and 30 TAC Subchapter 

G—Flexible Permits, definitions in 30 

TAC 116.13, Flexible Permits 

Definitions, and a nonseverable portion 

of the definition at subparagraph 

116.10(11)(F) of ‘‘modification of 

existing facility’’ under Texas’s General 

Definitions in Chapter 116, Control of 

Air Pollution by Permits for New 

Construction or Modification. EPA finds 

that these submitted provisions and 

definitions are not severable from each 

other. 

B. Summary of the Submittals 

Addressed in This Final Action 

Tables 1 and 2 below summarize the 

changes that are in the SIP revision 

submittals. A summary of EPA’s 

evaluation of each section and the basis 

for this final action is discussed in 

sections III through V of this preamble. 

The TSD (which is in the docket) 

includes a detailed evaluation of the 

submittals. 

TABLE 1—SUMMARY OF EACH SIP SUBMITTAL THAT IS AFFECTED BY THIS ACTION

Title of SIP submittal Date submitted to EPA 

Date of State 

adoption Regulations affected 

Flexible Permits ............................... 11/29/1994 11/16/1994 • Revision to 30 TAC 116.110. 

• Adoption of New 30 TAC 116.13 and New Subchapter G, 30 TAC 

116.710, 116.711, 116.714, 116.715, 116.716, 116.717, 116.718, 

116.720, 116.721, 116.722, 115.730, 116.740, 116.750, and 116.760. 

Qualified Facilities and Modifications to Existing Facilities.3/13/1996 2/14/1996 • Revision of 30 TAC 116.10 to add new definition of ‘‘modification of 

existing facility’’ at (F). 

NSR Rule Revisions; section 112(g) 

Rule Review for Chapter 116.

7/22/1998 6/17/1998 • Repeal and new 30 TAC 116.10(9)(F), 116.13 and 116.110(a)(3) 

adopted. 

• Revisions to Subchapter G, 30 TAC 116.710, 116.711, 116.714, 

116.715, 116.721, 116.730, and 116.750. 

Public Participation (HB 801) .......... 10/25/1999 9/2/1999 • Revision to Subchapter G, 30 TAC 116.740. 

Air Permits (SB–766)—Phase II ...... 9/11/2000 8/9/2000 • Revisions to Subchapter G, 30 TAC 116.710, 116.715, 116.721, 

116.722, and 116.750. 

Emissions Banking and Trading ...... 4/12/2001 3/7/2001 • Revisions to Subchapter G, 30 TAC 116.711 and 116.715. 

House Bill 3040: Shipyard Facilities 

and NSR Maintenance Emissions.

9/4/2002 8/21/2002 • Revision to 30 TAC 116.10, redesignating 30 TAC 116.10(9)(F) to 

116.10(11)(F). 

• Revisions to Subchapter G, 30 TAC 116.711 and 116.715. 

Air Fees ........................................... 10/4/2002 9/25/2002 • Revisions to Subchapter G, 30 TAC 116.750. 

Offset Certification, New Source 

Review Permitting Processes and 

Extensions for Construction.

9/25/2003 8/20/2003 • Revision to Subchapter G, 30 TAC 116.715. 

TABLE 2—SUMMARY OF EACH REGULATION THAT IS AFFECTED BY THIS ACTION

Section Title Date submitted 

Date adopted 

by State Comments 

Chapter 116—Control of Air Pollution by Permits for New Construction or Modification 

Subchapter A—Definitions 

Section 116.10(11)(F) .......... General Definitions .............. 3/13/1996 2/14/1996 • Revised to add new definition of ‘‘modification 

of existing facility’’ at (F). 

7/22/1998 6/17/1998 • Repealed and Adopted new 30 TAC 

116.10(9)(F). 

9/4/2002 8/21/2002 • Redesignated 30 TAC 116.10(9)(F) to 30 

TAC 116.10(11)(F). 

Section 116.13 ..................... Flexible Permit Definitions ... 11/29/1994 11/16/1994 • Initial Adoption. 

7/22/1998 6/17/1998 • Repealed and Adopted new 30 TAC 116.13. 

• Subchapter B—New Source Review Permits 

• Division 1—Permit Application 

Section 116.110 ................... Applicability .......................... 11/29/1994 11/16/1994 • Revised (a) to add reference to Flexible Permits. 

7/22/1998 6/17/1998 • Repealed and adopted a new 30 TAC 

116.110. 

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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 41315 

TABLE 2—SUMMARY OF EACH REGULATION THAT IS AFFECTED BY THIS ACTION—Continued 

Section Title Date submitted 

Date adopted 

by State Comments 

• Included reference to Flexible Permits in new 

30 TAC 116.110(a)(3). 

• Subchapter G—Flexible Permits 

Section 116.710 ................... Applicability .......................... 11/29/1994 11/16/1994 • Initial adoption. 

7/22/1998 6/17/1998 • Revised subsection (a). 

• Removed subsection (b) and 

• Redesignated existing subsections (c)–(e) to 

subsections (b)–(d). 

• Revised subsections (b)–(d) as redesignated. 

9/11/2000 8/9/2000 • Revised subsection (b). 

Section 116.711 ................... Flexible Permit Application .. 11/29/1994 11/16/1994 • Initial adoption. 

7/22/1998 6/17/1998 • Revised introductory paragraph and paragraphs (1)–(5); 

• Added new paragraphs (6) and (11): 

• Redesignated existing paragraphs (6)–(9) to 

paragraphs (7)–(10) and existing paragraphs 

(10)–(11) to paragraphs (12)–(13); and 

• Revised paragraphs (8)–(10) as redesignated. 

4/12/2001 3/7/2001 • Added new paragraph (12); and 

• Redesignated existing paragraphs (12)–(13) 

to paragraphs (13)–(14). 

9/4/2002 8/21/2002 • Designated existing as subsection (a); 

• Added new subsection (b); and 

• Revised paragraphs (a)(8)–(11) as redesignated. 

Section 116.714 ................... Application Review Schedule.11/29/1994 11/16/1994 • Initial adoption. 

7/22/1998 6/17/1998 • Revised introductory paragraph. 

Section 116.715 ................... General and Special Conditions.11/29/1994 11/16/1994 • Initial adoption. 

7/22/1998 6/17/1998 • Revised subsection (a), and paragraphs 

(c)(3)–(6), and (9)–(10). 

9/11/2000 8/9/2000 • Revised subsection (a). 

4/12/2001 3/7/2001 • Revised paragraph (c)(3). 

9/4/2002 8/21/2002 • Revised paragraph (c)(9). 

9/25/2003 8/20/2003 • Revised paragraphs (c)(1) and (c)(9). 

Section 116.716 ................... Emission Caps and Individual Limitations.11/29/1994 11/16/1994 • Initial adoption. 

Section 116.717 ................... Implementation Schedule for 

Addition Controls.

11/29/1994 11/16/1994 • Initial adoption. 

Section 116.718 ................... Significant Emission Increase.11/29/1994 11/16/1994 • Initial adoption. 

Section 116.720 ................... Limitation on Physical and 

Operational Changes.

11/29/1994 11/16/1994 • Initial adoption. 

Section 116.721 ................... Amendments and Alterations 11/29/1994 11/16/1994 • Initial adoption. 

7/22/1998 6/17/1998 • Revised paragraphs (b)(2) and (d)(1)–(2). 

9/11/2000 8/9/2000 • Revised subsection (d) and paragraph (d)(1). 

Section 116.722 ................... Distance Limitations ............. 11/29/1994 11/16/1994 • Initial adoption. 

9/11/2000 8/9/2000 • Revised introductory paragraph. 

Section 116.730 ................... Compliance History .............. 11/29/1994 11/16/1994 • Initial adoption. 

7/22/1998 6/17/1998 • Revised introductory paragraph. 

Section 116.740 ................... Public Notice and Comment 11/29/1994 11/16/1994 • Initial adoption. 

7/22/1998 6/17/1998 • Designated existing text as subsection (a); 

and 

• Added new subsection (b). 

10/25/1999 9/2/1999 • Revised subsections (a)–(b). 

Section 116.750 ................... Flexible Permit Fee .............. 11/29/1994 11/16/1994 • Initial adoption. 

7/22/1998 6/17/1998 • Revised subsections (b)–(d). 

9/11/2000 8/9/2000 • Revised subsection (d). 

10/4/2002 9/25/2002 • Revised subsections (b)–(c). 

Section 116.760 ................... Flexible Permit Renewal ...... 11/29/1994 11/16/1994 • Initial adoption. 

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41316 Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 

C. Other Relevant Actions on the Texas 

Permitting SIP Revision Submittals 

The Settlement Agreement in BCCA 

Appeal Group v. EPA, Case No. 3:08– 

cv–01491–N (N.D. Tex), as amended, 

currently provides that EPA will take 

final action on the State’s Public 

Participation SIP revision submittal by 

October 29, 2010. EPA intends to take 

final action on the submitted NSR SIP 

by August 31, 2010, as provided in the 

Consent Decree entered on January 21, 

2010 in BCCA Appeal Group v. EPA, 

Case No. 3:08–cv–01491–N (N.D. Tex). 

EPA published its final action on the 

Texas Qualified Facilities Program and 

its associated General Definitions on 

April 14, 2010 (See 75 FR 19467) as 

provided in the Consent Decree. 

Additionally, EPA acknowledges that 

TCEQ is developing a proposed 

rulemaking package to address EPA’s 

concerns with the current Flexible 

Permits rules. We will, of course, 

consider any rule changes if and when 

they are submitted to EPA for review. 

However, the rules before us today are 

those of the current Flexible Permits 

Program, and we have concluded that 

the current Program is not approvable 

for the reasons set out in this notice. 

III. Response to Comments 

In response to our September 23, 

2009, proposal, 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); Office of the Mayor— 

City of Houston, Texas (City of 

Houston); Harris County Public Health 

and Environmental Services (HCPHES); 

Sierra Club—Houston Regional Group 

(Sierra Club); Sierra Club Membership 

Services (including 2,062 individual 

comment letters) (SCMS); Texas 

Chemical Council (TCC); Texas 

Commission on Environmental Quality 

(TCEQ); Members of the Texas House of 

Representatives; Texas Association of 

Business (TAB); Texas Oil and Gas 

Association (TxOGA); and University of 

Texas at Austin School of Law— 

Environmental Clinic on behalf of 

Environmental Integrity Project (the 

Clinic), 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. 

A. General Comments 

Comment 1: The following 

commenters support EPA’s decisions to 

disapprove the Flexible Permits State 

Program: HCPHES; several members of 

the Texas House of Representatives; the 

Sierra Club; the City of Houston, and the 

Clinic. 

Response: Generally, these comments 

support EPA’s analysis of Texas’s 

Flexible Permits Program as discussed 

in detail at 74 FR 48480, at 48485– 

48494, and further support EPA’s action 

to disapprove the Flexible Permits 

Program submission. 

Comment 2: The SCMS sent 

numerous similar letters via e-mail that 

relate to this action. These comments 

include 1,789 identical letters (sent via 

e-mail), which support EPA’s proposed 

ruling that major portions of the TCEQ 

air permitting program do not adhere to 

the CAA and should be thrown out. 

While agreeing that the proposed 

disapprovals are a good first step, the 

commenters state that EPA should take 

bold actions such as halting any new air 

pollution permits being issued by TCEQ 

utilizing TCEQ’s current illegal policy; 

creating a moratorium on the operations 

of any new coal fired power plants; 

reviewing all permits issued since TCEQ 

adopted its illegal policies and requiring 

that these entities resubmit their 

applications in accordance with the 

Federal CAA; and putting stronger rules 

in place in order to reduce globalwarming emissions and to make sure 

new laws and rules do not allow 

existing coal plants to continue 

polluting with global warming 

emissions. 

The commenters further state that 

Texas: (1) Has more proposed coal and 

petroleum coke fired power plants than 

any other State in the Nation; (2) Is 

number one in carbon emissions; and 

(3) Is on the list for the largest increase 

in emissions over the past five years. 

Strong rules are needed to make sure the 

coal industry is held responsible and 

that no permits are issued under TCEQ’s 

illegal permitting process. Strong 

regulations are vital to cleaning up the 

energy industry and putting Texas on a 

path to clean energy technology that 

boosts economic growth, creates jobs in 

Texas, and protects the air quality, 

health, and communities. 

In addition, SCMS sent 273 similar 

letters (sent via e-mail) that contained 

additional comments that Texas should 

rely on wind power, solar energy, and 

natural gas as clean alternatives to coal. 

Other comments expressed general 

concerns related to: Impacts on global 

warming, lack of commitment by TCEQ 

to protect air quality, the need for clean 

energy efficient growth, impacts upon 

human health, endangerment of 

wildlife, impacts on creation of future 

jobs in Texas, plus numerous other 

similar concerns. 

Response: To the extent that the 

SCMS letters comment on the proposed 

disapproval of the Flexible Permits 

Program, they support EPA’s action to 

disapprove the Flexible Permits 

submission. The remaining comments 

are outside the scope of our proposed 

action relating to the Flexible Permits 

Program. 

Comment 3: The Clinic comments 

that EPA should issue an immediate SIP 

call for Texas’ failure to enforce the 

current SIP and should require those 

facilities operating under a Flexible 

Permit to apply for a SIP-approved 

permit. 

Response: This final rulemaking only 

addresses the approvability of the Texas 

Flexible Permits Program as a SIP 

revision submittal. Therefore, comments 

related to other EPA action are outside 

the scope of our proposed action 

relating to the Flexible Permits Program. 

Comment 4: The ERCC comments that 

to avoid negative economic 

consequences EPA should exercise 

enforcement discretion statewide for 

sources that obtained government 

authorization in good faith and as 

required by TCEQ, the primary 

permitting authority. EPA should not 

require any injunctive relief and should 

consider penalty only cases. 

Response: EPA enforcement of the 

CAA in Texas is outside the scope of 

our proposed action relating to the 

Flexible Permits Program. 

Comment 5: TIP, BCCA, TAB, and 

TxOGA comment that the Federal NSR 

SIP regulations recognize the 

importance of providing operational 

flexibility. In 1990, Congress added 

Title V to the CAA and it specifies that 

State Title V programs must include 

provisions to allow changes within a 

permitted facility without requiring a 

permit revision if the changes are not 

modifications under any provision of 

Title I of the Act and do not exceed the 

emissions allowable under the permit 

(whether expressed therein as a rate of 

emissions or in terms of total 

emissions). See section 502(b)(10) of the 

Act. In order to provide operational 

flexibility, EPA adopted 40 CFR 

70.4(b)(12) which requires that States 

establish Title V programs that allow 

three specific avenues to establish 

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operational flexibility, including 

establishment of federally-enforceable 

emission caps in their Title V programs. 

See 40 CFR 70.4(b)(12)(iii). EPA 

emphasized the importance of enabling 

plant sites to maintain operational 

flexibility in the preamble of to 40 CFR 

part 70. See 57 FR 32250, at 32267 (July 

21, 1992). 

Response: EPA acknowledges that the 

Title V Federal program requirements 

allow a State to provide for operational 

flexibility using the establishment of 

federally enforceable emissions caps. 

EPA, however, must review the 

submitted Program as a SIP revision 

submittal under Title I of the Act, not 

Title V. We are not disapproving the 

submitted Program because it provides 

for the establishment of emissions caps. 

As discussed in the proposal and this 

final action, EPA is disapproving the 

submitted Program for inclusion in the 

Texas NSR SIP because it is not 

enforceable, does not include any 

replicable methodology for calculating 

the emissions caps, provides too broad 

director discretion regarding the 

monitoring, recordkeeping, and 

reporting (MRR) requirements, and lacks 

sufficient MRR requirements. The 

submitted Program fails to meet section 

110 and parts C and D of the Act and 

the requirements of 40 CFR part 51. As 

stated elsewhere in the proposal and 

throughout this final action, we have 

identified areas in which the submitted 

Program does not meet these statutory 

requirements. See 74 FR 48480, at 

48490, 48491–48492, and 48492–48493; 

and sections III.D.3 and IV.C, for further 

information. 

Comment 6: BCCA, TIP, TAB, and 

TxOGA comment on several Federal 

Flexibility Permitting rules in which 

EPA promotes permit flexibility. These 

include the following: 

• Flexible Permit Pilot Study. EPA 

focused on the importance of 

operational flexibility in a decade-long 

Flexible Permit pilot study that 

included flexible emission cap permits 

in six states and found that flexible 

permits worked well and could be used 

to further both environmental protection 

and administrative flexibility. Both 

States and EPA recognized the need to 

respond rapidly to market signals and 

demand in today’s increasingly global 

markets while delivering products 

faster, at lower cost, and of equal or 

better quality than their competitors. 

EPA recognized that the flexible permits 

could reduce the administrative 

‘‘friction’’ of time, costs, delay, 

uncertainty, and risk associated with 

certain types of operational changes. 

• Plantwide Applicability Limits 

(PALs). EPA recognized the advantages 

of emissions caps in permits in 

promulgating its NSR Reform in 1996 

and 2002. These advantages include the 

ability to make changes an emissions 

cap that do not require a permit for each 

change so long as the plant’s emissions 

do not exceed the cap rather than face 

piecemeal applicability decisions for 

each and every contemplated change. 

EPA further noted environmental 

benefits that could result from PALs 

because sources participating in a capbased program strive to create enough 

headroom for future expansion by 

voluntarily controlling emissions. 

• EPA’s Proposed Indian Country 

Rule. In the 2006 proposed rule for 

Indian Country, EPA recognized the 

importance of flexibility in air 

permitting programs. EPA intended this 

rule to be a representative template of 

State NSR programs that serve to 

provide operational flexibility while 

leveling the regulatory playing field. 

• EPA’s Flexible Air Permit Rule. In 

October 2009, EPA promulgated the 

Federal Flexible Air Permit rule, which 

incorporated changes to the Title V 

rules that were intended to clarify and 

reaffirm opportunities for accessing 

operational flexibility under existing 

regulations. EPA recognized that State 

permitting authorities have discretion to 

pre-approve minor changes and reaffirms pre-existing authority for State 

to craft flexible air permits. 

Response: EPA acknowledges that 

each of these cap-based permitting 

programs has resulted in, or has the 

potential to result in, increased 

operational flexibility and may enable 

the owner or operator to make certain 

changes without the need to apply for 

and receive a permit for each individual 

change whenever the change does not 

result in emissions that exceed the cap. 

However, of the four identified 

programs, one was a pilot study and one 

has not been finalized. The State did not 

submit the Flexible Permits Program for 

consideration by EPA as a PALs NSR 

SIP revision. Moreover, the submitted 

Flexible Permits Program does not meet 

the minimum requirements contained in 

the PALs NSR SIP regulations, which 

include procedures for establishing 

replicable emission caps, protecting the 

NAAQS and control strategies, and MRR 

requirements sufficient to ensure 

compliance with the terms and 

conditions of the permit that establishes 

the emissions cap. As we discussed in 

the proposal and now through this final 

action, the submitted Flexible Program 

does not meet the requirements for the 

establishment of replicable emissions 

caps and sufficient MRR requirements. 

The submitted Program has no specific, 

only general, requirements pertaining to 

MRR. Paragraph (c)(6) of submitted 30 

TAC 116.715 generally requires 

maintenance of data sufficient to 

demonstrate continuous compliance 

with emission caps and individual 

emission limits contained in the 

Flexible Permit. That is all. To contrast, 

the submitted Flexible Permit Program 

lacks the specific requirements of 

another cap-base program, the Federal 

PAL SIP rule. The Federal PAL SIP rule 

requires that the program require each 

PAL permit to contain enforceable 

requirements for the monitoring system 

that accurately determines plantwide 

emissions of the PAL pollutant in terms 

of mass per unit of time. The PAL SIP 

rule further provides that the 

monitoring system must be based upon 

sound science and meet generally 

acceptable scientific procedures for data 

quality and manipulation; and the 

information generated by such system 

must meet minimum legal requirements 

for admissibility in a judicial 

proceeding to enforce the PAL permit. 

The SIP requirements for an approvable 

PAL monitoring system are the 

employment of one or more of the 

following approaches: Mass balance 

calculations for activities using coatings 

or solvents, continuous emission 

monitoring system, predictive emission 

monitoring system, continuous 

parameter monitoring system, and 

emission factors, if approved by the 

reviewing authority. The PAL SIP rule 

provides the technical specifications for 

each of the allowable monitoring 

systems and provides replicable 

procedures for the approval of any 

alternative monitoring system. See 40 

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

The submitted Flexible Permit Program, 

in contrast, is generic concerning the 

types of monitoring that is required 

rather than identifying the employment 

of specific monitoring approaches, 

providing the technical specifications 

for each of the specific allowable 

monitoring systems, and requiring 

replicable procedures for the approval 

of any alternative monitoring system. It 

also lacks the replicable procedures that 

are necessary to ensure that (1) adequate 

monitoring is required that would 

accurately determine emissions under 

the Flexible Permit cap, (2) the Program 

is based upon sound science and meets 

generally acceptable scientific 

procedures for data quality and 

manipulation; and (3) the information 

generated by such system meets 

minimum legal requirements for 

admissibility in a judicial proceeding to 

enforce the Flexible Permit. 

The Federal Flexible Air Permit Rule, 

although it is not a NSR SIP program but 

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1Although the Texas Minor NSR SIP rules for 

Permits by Rule and Standard Permits remain 

acceptable for a Minor NSR SIP revision, EPA is 

conducting a review of each individual Permit by 

Rule and/or Standard Permit. EPA is conducting 

this review to ensure that the TCEQ is 

implementing the SIP appropriately and that each 

such individual Minor NSR SIP permit protects the 

NAAQS and control strategies and is enforceable. 

a Title V program that provides for an 

alternative NSR SIP approach, is a cap 

program but it too requires replicable 

methodologies and sufficient MRR 

requirements. The submitted Program 

does not contain a replicable 

methodology for establishing the 

emissions cap and sufficient MRR 

requirements. See 74 FR 48480, at 

48490, 48491–48492, and 48492–48493; 

and sections III.D.3 and IV.C, for further 

information. Finally, see section III.D.3 

(response to comment 4) concerning 

MRR for the proposed Indian Country 

Minor NSR rule. 

Comment 7: GCLC, TIP, BCCA, and 

TCC comment that EPA ignores the fact 

that the Texas Flexible Permit Program 

has had a significant impact on 

improving air quality in Texas. TCEQ 

commented that significant emission 

reductions have been achieved by the 

submitted Program through the large 

number of participating grandfathered 

facilities, which resulted in improved 

air quality based upon the monitoring 

data. 

BCCA, TAB, TxOGA, and ERCC 

comment that the legal standard for 

evaluating a SIP revision for approval is 

whether the submitted revision 

mitigates any efforts to attain 

compliance with a NAAQS. EPA’s 

failure to assess the single most 

important factor in the submitted 

Program, the promotion of continued air 

quality improvement, is inconsistent 

with case law and the Act and is a 

deviation from the SIP consistency 

process and national policy. EPA should 

perform a detailed analysis of approved 

SIP programs through the United States 

and initiate the SIP consistency process 

within EPA to ensure fairness to Texas 

industries. 

Response: We are disapproving the 

submitted Program because it is not 

enforceable, it lacks an objective, 

replicable methodology for 

establishment of the emissions caps, it 

provides broad director discretion 

concerning whether or not to include a 

MRR condition in a Flexible Permit, 

lacks sufficient MRR requirements, is 

ambiguous regarding circumvention of 

Major NSR, and there is not sufficient 

information to enable EPA to make a 

finding that the submitted Program will 

protect the NAAQS and control 

strategies. EPA is required to review 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). Also see section III.A (response to 

comment 6) for further information. 

Even if the commenters’ premises are 

to be accepted, they fail to substantiate 

their claim that the Texas Flexible 

Permit Program has had a significant 

impact on improving air quality in 

Texas by producing data showing that 

any such gains are directly attributable 

to the submitted Program, and are not 

attributable to the SIP-approved control 

strategies (both State and Federal 

programs) or other Federal and State 

programs. They provide no explanation 

or basis for how their numbers were 

derived. Moreover, since the submitted 

Program is not enforceable, claims of 

emission reductions are not assured on 

a continuous basis. 

EPA is not required to initiate the SIP 

consistency process within EPA unless 

the pending SIP revision appears to 

meet all the requirements of the Act and 

EPA’s regulations but raises a novel 

issue. EPA is disapproving the 

submitted Program because it fails to 

meet the Act and EPA’s regulations. 

Because the submitted Program fails to 

meet the requirements for a SIP 

revision, the SIP consistency process is 

not relevant. 

Furthermore, since the commenters 

thought EPA was acting inconsistently, 

they should have identified SIPs that are 

inconsistent with our actions and 

provided technical, factual information, 

not bare assertions. 

Comment 8: BCCA and ERCC 

comment that the concepts embedded in 

the Program have been part of the Title 

V, NSR, and PAL programs for many 

years and were upheld as consistent 

with the Clean Air Act by the U.S. 

Supreme Court in Chevron v. NRDC, 

467 S.C. 837 (June 25,1984). Texas’ 

Program is actually more stringent than 

EPA’s interpretation of the NSR program 

upheld by the Supreme Court. 

Response: The U.S. Supreme Court 

found, in the cited case, that the 

pertinent legislative history was silent 

on the precise issue of the bubble 

concept as it related to what constituted 

a major stationary source and found that 

EPA should have wide discretion in 

implementing the policies of the 1977 

amendments. Id at 862. This opinion is 

not relevant to EPA’s grounds for 

disapproving the submitted Program. 

Not only is it not relevant but none of 

the concepts cited by the commenters 

was before the Court in Chevron. EPA’s 

disapproval is not based on a per se 

finding that a preconstruction program 

based on emissions caps is unacceptable 

or more or less stringent than the SIP 

requirements. We are disapproving the 

submitted Program because it is not 

enforceable, it lacks a replicable 

methodology for establishment of the 

emissions caps, it provides broad 

director discretion concerning whether 

or not to include a MRR condition in a 

Flexible Permit, lacks sufficient MRR 

requirements, and there is not sufficient 

information to enable EPA to make a 

finding that the submitted Program will 

protect the NAAQS and control 

strategies. See section III.A (response to 

comment 6) for further information. 

B. Whether the Flexible Permits Program 

Is Clearly a Minor, not a Major, NSR SIP 

Revision 

Comment 1: TCEQ comments that 

though it has always considered the 

Flexible Permit Program to be a Minor 

NSR program, this fact is not 

specifically stated in the rule. TCEQ, 

nevertheless, asserts that its 

implementation of the Program includes 

a review process that always determines 

the applicability of Federal Major NSR, 

as well as any other Federal and State 

requirements. The TCEQ states that it 

understands EPA’s concerns regarding, 

among other things, applicability, 

clarity, enforceability, replicable 

procedures, recordkeeping, and 

compliance assurance. 

Response: We acknowledge TCEQ’s 

description that it intends to implement 

the submitted Program in such a manner 

that the submitted Flexible Permit 

Program does not supersede the duty to 

comply with the Texas Major NSR SIP. 

In contrast to the submitted Program, 

however, in its Minor NSR SIP for 

Permits by Rule and Standard Permits, 

TCEQ included additional regulatory 

language that explicitly prohibits the 

use of the Permits by Rule alternative 

permit program and the Standard 

Permits alternative permit program from 

being used for major stationary sources 

and major modifications and explicitly 

prohibits circumvention of the Major 

NSR requirements.1 Specifically, the 

Standard Permits and Permits by Rule 

NSR SIP rules explicitly require a Major 

NSR applicability determination at 30 

TAC 116.610(b) and 30 TAC 106.4(a)(3). 

In each, the State specifically expressed 

its intention to require a Major NSR 

applicability determination. The 

Flexible Permits Program is also an 

alternative permit program. If the State 

wishes for it to be considered as solely 

a Minor NSR SIP revision submittal, the 

TCEQ should have included express 

language stating that it explicitly 

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prohibits the use of the Flexible Permit 

Program from being used for major 

stationary sources and major 

modifications and explicitly prohibits 

circumvention of the Major NSR 

requirements, as it did in the two other 

Minor NSR alternative permit options. 

This submitted Program lacks such 

language. While the inclusion of such 

specific language is not ordinarily a 

minimum NSR SIP program element, we 

conclude that the inconsistent treatment 

between the similar types of NSR 

programs creates the potential for an 

unacceptable ambiguity about a permit 

holder’s obligations to continue to 

comply with the Major NSR 

requirements. 

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 Program’s 

rules are ambiguous and therefore 

unapprovable. See 74 FR 48480, at 

48485–48487 for further information. 

Comment 2: TCC notes that 30 TAC 

116.711 identifies the use of Flexible 

Permits as only a Minor NSR option and 

concludes that TCEQ’s rules therefore 

do not intend for the Flexible Permits 

Program to be an equivalent to a Major 

NSR program. 

Response: We disagree that 30 TAC 

116.711 identifies the use of Flexible 

Permits as only a Minor NSR permitting 

option. Contrary to commenter’s 

assertion, this rule merely replicates 

certain general permitting requirements 

that are also common to Subchapter B, 

that also apply to all Texas Major and 

Minor NSR SIP permits. There are no 

requirements or terms in 30 TAC 

116.711 that expressly identify use of 

Flexible Permits as only a Minor NSR 

option. As noted above in section III.B 

(response to comment 1), the TCEQ 

should have included express 

additional regulatory language 

prohibiting the use of the submitted 

Program for Major NSR and explicitly 

prohibiting circumvention of the Major 

NSR requirements, as it did in the two 

other Minor NSR SIP alternative permit 

options. 

C. Whether the Flexible Permits Program 

Meets the Requirements for a Substitute 

Major NSR SIP Revision 

1. General Comment on Whether the 

Program Is a Substitute Major NSR SIP 

Revision 

Comment: TCEQ comments that it did 

not view the Flexible Permit Program as 

a substitute Major NSR SIP revision 

when it adopted it nor does it wish for 

it to be considered as a SIP revision 

submittal for a substitute Major NSR SIP 

revision. It has always viewed the 

Program as a Minor NSR program. In its 

implementation of the Program, TCEQ 

comments that it requires a Federal 

applicability demonstration but 

acknowledges that the submitted 

Program’s rules are not clear on this 

point. TCEQ states that it will confirm 

through upcoming rulemaking and SIP 

revision that the Program is not a 

substitute Major NSR SIP revision. 

Response: EPA appreciates TCEQ’s 

statement that it does not view its 

Flexible Permit Program as a substitute 

Major NSR SIP revision submittal. 

However, EPA must review the content 

of the Program as submitted for 

inclusion into the Texas SIP. The 

submitted Program is ambiguous when 

compared to the regulatory structure of 

existing similar Texas Minor NSR SIP 

programs, as it contains no express 

provision that clearly limits the Program 

to Minor NSR and no explicit provision 

that prohibits circumvention of the 

Major NSR SIP requirements. See 74 FR 

48480, at 48488 and section III.B 

(response to comment 1) of this notice 

for further information. 

2. Requirements for Major NSR 

Applicability Determinations 

Comment 1: Although TCEQ 

comments that the Flexible Permit 

Program requires that the applicability 

of Major NSR requirements be evaluated 

prior to considering whether the new 

construction or modification can be 

authorized under a Flexible Permit, 

TCEQ also comments that it 

understands EPA’s concerns with issues 

regarding Major NSR applicability vis a 

vis the submitted Program, based upon 

the application of today’s legal 

requirements. TCEQ undertakes to 

consider rulemaking to ensure Major 

NSR applicability requirements are 

included in Flexible Permit reviews, 

and that the requirements of the 

appropriate Major NSR permitting 

program are met when triggered. 

Response: EPA appreciates TCEQ’s 

understanding that the Program lacks 

clarity on the issue of the applicability 

of Major NSR requirements and that the 

State plans to revise its rules to ensure 

it is clear that the Major NSR 

applicability determination 

requirements are required before one 

can use the Program, and that the 

requirements of the appropriate Major 

NSR permitting program are met when 

triggered. Nonetheless, EPA must 

review the content of the Program as 

submitted for inclusion into the Texas 

SIP. The submitted Program’s 

regulations do not contain any emission 

limitations, applicability statement, or 

regulatory provision restricting the 

construction or change to Minor NSR as 

was included in the SIP rules for 

Standard Permits and Permits by Rule. 

See section III.B (response to comment 

1) for additional information. 

Comment 2: TAB, TxOGA, TIP, and 

BCCA comment that there are 

safeguards in the Texas Flexible Permit 

rules at 30 TAC 116.711(1), (8), (9), 

116.718, and 116.720 that constrain 

regulated community from making 

major changes without complying with 

Major NSR requirements. 

Response: The regulations cited by 

the commenters do not explicitly 

require sources to comply with the 

Major NSR rules. 30 TAC 116.711(1) 

provides for protection of public health 

and welfare and does not address 

applicability of Major NSR. 30 TAC 

116.711(8) and (9) generally require 

compliance with all applicable 

requirements for nonattainment and 

PSD review within that Chapter of the 

rules. Despite commenters contentions 

there are no express terms or 

requirements within the cited rules that 

compel a Major NSR applicability 

determination. The cited regulations do 

not contain any emission limitations, 

applicability statement, or regulatory 

provision restricting the construction or 

change to Minor NSR or clearly 

prohibiting circumvention of Major 

NSR, as was included in the SIP rules 

for Standard Permits and Permits by 

Rule. The absence of such provisions in 

the submitted Flexible Permit rules 

creates an unacceptable ambiguity. 30 

TAC 116.718 and 116.720 do not 

address Major NSR. See section III.B 

(response to comment 1) for additional 

information. 

Comment 3: ERCC comments that the 

concepts embedded in the Flexible 

Permit Program have been a part of the 

NSR program for many years and are 

well-settled law. The fact that the 

emission rates used in the calculation of 

the cap(s) are reflected in a ‘‘bubble’’ 

permit is of no consequence and is 

consistent with applicable statutory and 

regulatory requirements under the Clean 

Air Act. 

The submitted Program explicitly 

requires any new source or major 

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modification that is applying for a 

Flexible Permit to go through Major 

NSR review and if necessary, have the 

Flexible Permit altered. 

Response: EPA disagrees with these 

comments. First, the submitted Program 

has not been a part of the Texas NSR SIP 

‘‘for many years.’’ Therefore, it is not 

‘‘well-settled law.’’ Furthermore, any 

source operating under a Flexible 

Permit risks potential Federal 

enforcement action. Second, it is being 

disapproved today because of not 

meeting the Federal NSR SIP 

requirements, not because it embeds the 

concepts of a cap program. The 

commenter’s comments are also at odds 

with TCEQ’s comments. TCEQ 

comments that its Program is intended 

to be a Minor NSR SIP program only 

and not intended to address Major NSR 

SIP requirements. In contrast, the 

commenter describes the submitted 

Program as covering major 

modifications and having a Flexible 

Permit (not a Major NSR SIP permit) 

altered to reflect the Major NSR review. 

TCEQ disputes this concept in its 

comments. See our response to TCEQ’s 

comments section III.C.3 (response to 

comment 1). 

3. Circumvention of Major NSR 

Comment 1: TCEQ comments that it 

understands EPA concerns regarding the 

‘‘the lack of specificity’’ in its rules but 

maintains that the Program does not 

circumvent Federal Rules. TCEQ 

maintains that its implementation of the 

submitted rules includes Federal 

applicability review that includes 

determination of actual rates, project 

emission increases, and net emission 

increases. It also includes BACT 

analysis to establish the cap, NAAQS 

and increment analysis if PSD is 

triggered; and LAER and offsets if 

Nonattainment Review is triggered. 

TCEQ states that its implementation 

also includes a Federal Major NSR 

Review which is conducted parallel 

with the Minor NSR Review and TCEQ 

does not allow applicant to use Flexible 

Permits to circumvent Major NSR. 

TCEQ plans to confirm EPA’s concerns 

in future rulemaking. 

Response: EPA appreciates TCEQ’s 

understanding of its concerns regarding 

the ‘‘lack of specificity.’’ While it is 

commendable that TCEQ may 

implement the Program in a manner 

consistent with the Federal Major NSR 

requirements, we cannot approve the 

Program as submitted. See 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). Moreover, relying 

upon an agency to continue to 

implement a program consistently with 

the Federal requirements even though 

not constrained to do so by its rules, 

makes EPA, the agency, industry, and 

the public vulnerable to the agency’s 

unfettered discretion to change how it 

implements its program. 

In this instance, there is no express 

provision in the submitted Subchapter 

G similar to the Minor NSR SIP 

provisions for Minor NSR SIP Permits 

by Rule and Standard Permits that 

prohibit circumvention of the Major 

NSR requirements. Both the SIPcodified rules for Permits by Rule and 

the SIP-codified rules for Standard 

Permits contain clear regulatory 

provisions prohibiting the use of these 

Minor NSR permits from circumventing 

Major NSR. There are no regulatory 

provisions prohibiting circumvention of 

Major NSR in the submitted Chapter 

116, Subchapter G, for Flexible Permits. 

See 74 FR 48480, at 48488 and section 

III.B (response to comment 1) for further 

information. The BACT analysis that 

TCEQ references for establishing the cap 

upon a plain reading of the rules and 

the associated Texas Registers means 

the Texas Minor NSR SIP BACT 

requirement, not the PSD Major NSR 

SIP BACT requirement. The failure to 

distinguish in the Program’s rules that it 

is Minor NSR SIP BACT that is used to 

create the cap contributes to the 

confusion of the reach of the Program. 

Comment 2: TCC and ERCC comment 

that the Flexible Permit Program does 

not circumvent Major NSR review. The 

Program is explicit in that any new 

major stationary source or major 

modification must go through Major 

NSR and the Flexible Permit must be 

altered. See 30 TAC 116.805. Moreover, 

the Flexible Permits employ two 

emissions cap, an initial cap and a final 

cap, which combine to ensure that the 

Major NSR permitting requirements are 

not circumvented. 

Response: EPA disagrees with 

commenters. Unlike the Texas Minor 

NSR SIP rules for Permits by Rule and 

Standard Permits, the submitted 

Program’s regulations do not contain 

any express regulatory provision that 

prohibits circumvention of the Major 

NSR requirements. This lack of such 

express provisions distinguishes the 

Flexible Permit Program and contributes 

to its nonapprovability. See 74 FR 

48480, at 48488, and section III.B 

(response to comment 1) of this notice. 

Furthermore, the referenced 30 TAC 

116.805 does not add an explicit 

requirement to the submitted Program. 

Rather, it applies to a separate class of 

Existing Facility Flexible Permits that is 

severable from the Flexible Permits 

Program. 

4. Use of Allowable Emissions in Major 

NSR 

Comment: TCC, TAB, and TxOGA 

comment that when TCEQ is evaluating 

emissions increases on a project level, 

the Program requires the use of actual 

baseline emissions to determine 

whether a project will result in an 

increase that triggers Major NSR 

applicability. TCC further states that the 

application of BACT to facilities subject 

to the emission cap results in an 

allowable that is lower than the prechange actual emissions. 

Response: As noted above in the 

preceding response, 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. The commenters are not clear 

whether they are referring to PSD BACT 

or the Texas Minor NSR SIP BACT. This 

lack of specificity by industry 

contributes to EPA’s concerns about 

whether the submitted Program is 

clearly limited to Minor NSR. We 

recognize that the application of either 

type of BACT to facilities subject to the 

emission cap could result in allowable 

emissions that are lower than the prechange actual emissions at the initial 

issuance of a Flexible Permit. However, 

the commenter provided no information 

to show a comparison of actual emission 

to potential to emit for changes that 

occur after the Flexible Permit is issued 

to evaluate that the net emission 

increase is based upon changes from 

baseline actual to either projected actual 

emissions or potential to emit. In such 

case, the baseline actual emissions 

resulting from such proposed change 

must be established as provided under 

applicable Federal requirements. See 40 

CFR 51.165(a)(2)(ii) and (a)(1)(vi)(A)(2) 

and 51.166(a)(7)(iv)(c)–(d) and 

(b)(3)(i)(b). Accordingly, there are no 

provisions in the Program that require 

the use of actual baseline emissions to 

determine whether a project will result 

in an increase that triggers Major NSR 

applicability. See 74 FR 48480, at 

48489–48490, for further information. 

5. Retention of Major NSR Permit Terms 

and Conditions 

Comment: TAB, ERCC, and TxOGA 

comment that the submitted Program 

requires that conditions of an existing 

PSD or Nonattainment permit be carried 

forward into a Flexible Permit. The 

submitted Program does not ‘‘void’’ the 

pre-existing Major NSR SIP permits. 

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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 41321 

2See EPA Letter from John Seitz, Director, Office 

of Air Quality Planning and Standards, to Robert 

Hodanbosi and Charles Lagges, STAPPA/ALAPCO, 

dated May 20, 1999. 

3EPA’s letter of March 12, 2008, on pages 12 to 

13 of the Enclosure provides some examples of, and 

concepts on how to establish replicable 

recordkeeping, reporting, tracking, and monitoring 

requirements up-front in a NSR program without 

requiring every director discretion decision to be 

adopted and submitted to EPA for approval as a 

source-specific SIP revision. 

Response: The submitted Program 

does not explicitly provide that the 

holder of a Flexible Permit still be 

required to continue to comply with all 

of the terms and conditions in the preexisting Major NSR SIP permits. Federal 

NSR SIP regulations do not provide for 

a blanket elimination of emission limits 

at individual units. The submitted 

Program does not assure the retention of 

the pre-existing Major NSR SIP permits’ 

terms and conditions. 

EPA’s long-held position is that 

permits issued under federally approved 

PSD, NNSR, and Minor NSR SIP 

programs must remain in effect because 

they are the legal mechanism through 

which the underlying NSR requirements 

(from the Act, Federal regulations, and 

federally approved SIP regulations) 

become applicable, and remain 

applicable, to individual sources. NSR 

programs enable the relevant permitting 

authority to impose source-specific NSR 

terms and conditions in legally 

enforceable permits, and provide states, 

EPA, and citizens with the authority to 

enforce these permits. SIP-approved 

permits impose continual operational 

requirements and restrictions upon a 

source’s air pollution activities and, 

accordingly, may not expire so long as 

the source operates.2

The lack of enforceability and 

adequacy of the MRR requirements in 

the submitted Program contributes to 

EPA’s concern that not all of the 

conditions of a PSD or NNSR SIP permit 

existing before the issuance of a Flexible 

Permit were carried forward into the 

Flexible Permit fully and completely. 

See section III.A (response to comment 

6) for further information. The 

submitted Program does not meet the 

requirements of section 110(a)(2)(A)–(C) 

of the Act, which requires that SIP 

revision submittals be enforceable. 

Section 116.711(2) of the submitted 

Program provides that emissions will be 

measured ‘‘as determined by the 

executive director.’’ This broad 

discretion lacks accountability, 

replicability and fails to provide for a 

full evaluation of the enforceability of 

permits issued under the Program. We 

are concerned with the broad director 

discretion whether to include MRR 

requirements in a Flexible Permit and 

the lack of adequacy of the MRR 

requirements in the submitted 

Program.3 EPA has interpreted the Act’s 

requirements for enforceability as 

specifying that SIP revision submittals 

must ‘‘specify clear, unambiguous, and 

measurable requirements.’’ See 57 FR at 

13567. There must be legal means in a 

SIP revision for ensuring compliance 

when conditions of an existing PSD or 

Nonattainment permit are carried 

forward in a Flexible Permit. The 

submitted Program does not contain 

sufficient enforceable means. This 

submitted Program is an intricate 

program, thus to be approved as a Major 

(as well as a Minor) NSR SIP revision, 

it requires detailed MRR requirements 

in order to ensure, among other things, 

that a project triggering the Major NSR 

SIP requirements is covered under 

Major NSR or there are adequate means 

for ensuring compliance of each affected 

entity. 

Without clear, objective, requirements 

in the submitted Program for retaining 

and distinguishing the Flexible Permits 

terms and conditions from the Texas 

Major NSR SIP permits terms and 

conditions, the submitted Program lacks 

clear, unambiguous, and measurable 

requirements necessary for approval as 

a SIP revision. The submitted Program 

does not ensure the retention of the preexisting Major NSR SIP permits’ terms 

and conditions. 

6. Protection of the NAAQS Attainment 

Under Major NSR 

Comment: The Clinic comments that 

the Program represents a relaxation of 

the current SIP and is inadequate to 

assure protection of the NAAQS, 

increments, and control strategies. 

Response: Without the required 

demonstration from the State showing 

how the customized Major NSR SIP 

revision is in fact as stringent as EPA’s 

Major NSR revised program and 

without, among other things, an 

objective, replicable methodology for 

establishing the emission cap, the too 

broad director discretion provision for 

whether or not to include MRR 

conditions in a Flexible Permit, the lack 

of sufficient MRR requirements for this 

type of permit program, and the lack of 

enforceability of the submitted Program, 

EPA lacks sufficient information to 

make a finding that the submitted 

Program, as a substitute for a Major NSR 

SIP program, will ensure protection of 

the NAAQS, and noninterference with 

the Texas SIP control strategies and 

RFP, as required by section 110(l) of the 

Act. See section III.A (response to 

comment 6) for further information. 

D. Whether the Flexible Permits 

Program Meets the Requirements for a 

Minor NSR SIP Revision 

1. Applicability for a Minor NSR 

Program 

Comment 1: The Clinic comments 

that the Flexible Permit rules do not 

include adequate provisions for 

ensuring that changes that should 

trigger Major NSR are subject to 

technology and air quality analysis 

requirements. 

Response: EPA agrees with this 

comment. See section III.B (responses to 

comments 1 and 2), section III.C.1 

(response to comment), and section 

III.C.2 (responses to comments 1, 2, and 

3), and section III.C.3 (responses to 

comments 1 and 2) for further 

information. 

Comment 2: TCC comments that the 

Flexible Permit authorization method 

used at a source does not exempt any 

facilities located at a source from Major 

NSR permitting requirements. If a 

source has a Flexible Permit that does 

not contain all the facilities located at 

that source and a project within the 

Flexible Permit triggers netting, all 

facilities (under the cap and outside the 

cap) at the source are evaluated to 

determine whether a net significant 

emissions increase at the source has 

occurred. If a resulting net emissions 

increase is significant, Major NSR is 

triggered. 

Response: We disagree with this 

comment. See section III.D.1 (response 

to comment 1, above) for further 

information. 

Comment 3: TIP, BCCA, and TCC 

comment that TCEQ rules provide two 

separate ‘‘modification’’ definitions. The 

first is at 30 TAC 116.12(18) for Major 

NSR applicability. The second is at 30 

TAC 116.10(11) for Minor NSR sources 

and does not limit its scope to federally 

regulated pollutants. EPA applies the 

term ‘‘modification’’ differently in the 

Minor NSR context and the Major NSR 

context. Therefore, it also is within 

Texas’s discretion to define the term 

differently for purposes of Minor NSR. 

Citing the EAB in In re Tennessee Valley 

Authority, 9 EAD 357,461 (EAB Sept. 

15, 2000) commenters maintain that 

Texas has the discretion to define the 

term differently for purposes of Minor 

NSR. 

Response: EPA acknowledges that 

that TCEQ defines the term 

‘‘modification’’ differently for Major NSR 

and for Minor NSR. However, the 

submitted Program does not specifically 

state which definition of modification it 

uses the one for Major NSR or the one 

for Minor NSR. This contributes to 

making the submitted Program not clear 

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41322 Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 

4 You can access this document directly at: http:// 

www.regulations.gov/search/Regs/home.html#

documentDetail?R=0900006480a2bccd. 

on its face that the Major NSR 

applicability requirements must be 

evaluated and met when triggered and 

that the State is required under its 

submitted Program to apply the Major 

NSR applicability concepts during the 

technical review of a Flexible Permit. 

Therefore based upon the ambiguities in 

the Program’s rules, we disagree that the 

Flexible Permit Program is exclusively a 

Minor NSR program. EPA is required to 

review a SIP revision submission for its 

compliance with the Act and EPA 

regulations. This includes an analysis of 

the submitted regulations for their legal 

interpretation. The Program’s rules are 

ambiguous and therefore do not 

adequately prohibit use under Major 

NSR. See section III.B (response to 

comment 1) for further information. 

2. Establishment of the Emission Cap 

Under Minor NSR 

Comment: TIP and BCCA comment 

that the submitted Program’s rules do 

contain an established and replicable 

method for determining an emissions 

cap. TAB and TxOGA comment that 

EPA provides no example of any 

unsuccessful attempt to replicate an 

emission cap using the current TCEQ 

rules. TAB and TxOGA comment that 

the submitted Program requires that 

each Flexible Permit establish a cap by 

simple summation of BACT emission 

rates. Each Flexible Permit involves the 

summing of BACT emission rates. While 

BACT determinations may vary between 

specific types of sources, the use of 

Federal and State BACT guidance 

results in a replicable procedure for 

establishing caps. In addition, the 

authorization under a Flexible Permit 

has no effect on sources or pollutants 

not covered in the Flexible Permit for a 

particular site. Both sources and 

emissions that are not incorporated into 

a Flexible Permit are subject to whatever 

rules or authorizations are in effect or 

should be applied to those emissions. 

An applicant for a Flexible Permit is 

required to meet BACT standards as 

applicable to all facilities individually 

contributing to an emission cap. In 

addition to an emission cap, a Flexible 

Permit may also impose individual 

emission limits where necessary to 

ensure satisfaction of off site screening 

levels of hazardous air pollutants or 

NAAQS for criteria pollutants, or to 

prevent violation of any Federal 

permitting requirement. 

Response: The proper scope of review 

for this SIP revision submittal does not 

include a review of the State’s 

individually issued Flexible Permits to 

determine whether there are replicable 

caps in each permit. Instead, EPA’s 

review is focused on the structure of the 

submitted Program, ensuring that it 

includes legally sufficient objective and 

replicable criteria for establishment of 

the cap in each Flexible Permit and 

information submitted by the State to 

demonstrate that the program meets the 

requirements of the Act. Review based 

on the submittal, rather than improper 

implementation, is necessary to ensure 

that as structured the submitted 

Program does not interfere with NAAQS 

attainment, the Texas SIP control 

strategies, and RFP, and is enforceable 

pursuant to section 110(a) (2)(A)–(C) of 

the Act. The September 23, 1987, 

Memorandum from J. Craig Potter, 

Assistant Administrator for Air and 

Radiation, and Thomas L. Adams Jr., 

Assistant Administrator for Enforcement 

and Compliance Monitoring, entitled 

‘‘Review of State Implementation Plans 

and Revisions for Enforceability and 

Legal Sufficiency’’ provides EPA’s 

guidance for interpreting this provision 

in the Act. A copy of this document is 

in the docket at document ID EPA–R06– 

OAR–2005–TX–0032–0022.4 See also 

the ‘‘General Preamble for the 

Implementation of Title I of the Clean 

Air Act Amendments of 1990,’’ (GP) 57 

FR 13498 at page 13556 (April 10, 

1992). 

The submitted Program establishes a 

cap in a Flexible Permit that is a 

summation of BACT requirements (or a 

more stringent requirement if 

applicable). The submitted rules are not 

clear as to how the State does the 

summation. Even the State fails in its 

comment letter to clarify whether the 

cap includes the summation of not only 

the minor stationary sources and minor 

modifications but also the major 

stationary sources’ and major 

modifications’ emissions limitations. 

This failure to clarify the methodology 

for the establishment of the cap 

contributes to the ambiguity of the 

submitted Program. Specific, objective, 

and replicable criteria are to be set forth 

for determining the emissions cap. 

The commenter states that if a source 

or emissions are not covered under a 

Flexible Permit, then they are subject to 

whatever rules or authorizations are in 

effect or should be applied to those 

emissions. EPA is however concerned 

that it is not clear which facilities are 

covered by a Flexible Permit. The 

submitted Program does not clearly 

delineate which emissions are covered 

by a Flexible Permit. EPA proposed 

disapproval because the submittal lacks 

specific, established, replicable 

procedures providing available means to 

determine independently how the 

source or the State will calculate an 

emission cap; determine the coverage of 

a Flexible Permit; establish individual 

emissions limitations for each site, a 

facility on the site, a group of units on 

the site; or for one pollutant but not 

another. Without a clearly defined 

replicable process for determining what 

the process is, and how the emission 

cap is adjusted for the addition of new 

facilities, the public and EPA cannot 

independently calculate an emission 

cap and reach the same conclusions as 

the State. Therefore, the submitted 

Program is unapprovable. This 

conclusion was reached based on our 

review of the submitted Program 

pursuant to the CAA. 

3. Enforceability of a Minor NSR 

Program 

Comment 1: TCEQ comments that 

although the submitted rules do not 

specify special conditions that ensure 

recordkeeping, reporting, and testing to 

assure compliance with the Flexible 

Permit, the State issues Flexible Permits 

containing special conditions requiring 

periodic stack testing, continuous 

emissions monitoring, and other 

parametric monitoring requirements, 

along with recordkeeping requirements 

to ensure compliance with the Flexible 

Permit cap and BACT. Because of the 

wide variety of industrial source types, 

TCEQ has carefully drafted its rules to 

ensure it has the ability to adequately 

implement specific and detailed MRR 

requirements. TCEQ will address EPA 

concerns in a forthcoming rulemaking 

and SIP revision. 

Response: Although TCEQ plans in a 

future rulemaking action to add specific 

conditions as part of the Program to 

address MRR requirements, the 

submitted Program lacks these 

requirements. See section III.A 

(response to comment 6) for further 

information. EPA must evaluate the 

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. Any SIP revision 

must have adequate recordkeeping, 

reporting, testing, and monitoring 

requirements to assure there can be 

compliance with the submitted plan and 

ensure that the plan is enforceable, as 

well as ensure that each affected entity 

can be easily identified and that there 

are means to determine its compliance. 

See New York I, 413 F.3d at 33–36. 

There is further discussion in the 

General Preamble about EPA’s 

interpretation of the Act’s requirements 

for enforceability and that submitted 

rules must ‘‘specify clear, unambiguous, 

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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 41323 

and measurable requirements.’’ See the 

GP 57 FR 13498 at page 13567. 

Comment 2: The City of Houston 

states that it has long opposed the use 

of Flexible Permits. Quoting its 

comments on TCEQ’s proposed renewal 

of the Flexible Permit issued to a 

refinery in Houston, it states that ‘‘[t]he 

permit terms violate Federal law and are 

not federally enforceable. This refinery 

(and others) could have sought other 

SIP-approved permitting.’’ The City of 

Houston also noted that the structure of 

the Flexible Permit Program fails to 

assure compliance with the Major NSR 

requirements and that these Flexible 

Permits are essentially unenforceable. 

The City of Houston strongly supports 

the EPA’s decision to seek the changes 

necessary in the Flexible Permit 

Program to make it federally 

enforceable, consistent with the CAA 

and ensure that emissions are controlled 

and reduced from the State’s largest 

sources of pollutants. 

Response: EPA agrees with these 

comments. Texas has opted for a 

program that allows the permit holder to 

select which new facilities and/or new 

modifications to include under the 

umbrella of a Flexible Permit. The 

submitted Program fails to provide clear 

criteria for determining what type of 

MRR requirements are needed and 

furthermore leaves the choice to the 

director, including whether to include 

any MRR requirements in a Flexible 

Permit. See section III.A (response to 

comment 6) for further information. 

Without the appropriate specialized 

MRR requirements, it is generally 

impractical to determine for instance, 

which emission points are covered, 

which modifications of existing noncovered emission points are covered, 

etc. Texas also chose to allow both a cap 

and an individual emission limitation to 

apply to selected units, or just the cap, 

or just the individual emission 

limitation. Without the appropriate 

MRR requirements, it is generally 

impractical to determine if a covered 

unit is subject to the cap or an 

individual emission limitation, if a unit 

is subject to both the cap and a 

limitation, or whether a cap or a 

limitation applies at what time. Further, 

there can be existing units on the site 

not covered under the Flexible Permit 

cap that may be modified, and use the 

provisions of the Flexible Permit 

Program for the modification. Without 

replicable implementation procedures 

for establishing the emission cap and 

sufficient MRR requirements, EPA 

cannot find that the submitted Program 

is enforceable, as required by section 

110(a)(2)(A) and (C) of the Act. See 74 

FR 48480, at 48492. 

The submitted Program lacks 

provisions explicitly addressing the 

type of MRR requirements that are 

necessary to ensure that all of the 

movement of emissions between the 

emission points, units, facilities, plants, 

etc., still meet the cap for the pollutant, 

still meet the individual emissions 

limitations, and still meet any other 

applicable State or Federal requirement. 

In addition, there are no limits on the 

types of sources that can be included in 

the cap. It is also difficult to quantify 

emissions from some units, such as 

tanks, fugitive emissions from leaking 

valves, or wastewater emissions points 

that can be included in a Flexible 

Permit under this Program. 

Without specialized MRR 

requirements, it is difficult for EPA or 

the public to determine which units are 

covered by a Flexible Permit, which 

modifications to non-covered units are 

covered by a Flexible Permit, whether a 

covered unit is subject to the emission 

cap or an individual emission 

limitation, whether a unit is subject to 

both the cap and a limitation, or 

whether a cap or a limitation applies 

and at what time. 

Comment 3: TIP, BCCA, TAB, and 

TxOGA comment that the submitted 

Program contains comprehensive and 

stringent provisions for monitoring, 

recordkeeping, and reporting. These are 

more than adequate to ensure 

compliance on the part of permit 

holders, enforceability by TCEQ, and 

protection of public health. See 30 TAC 

116.715(c). They require the regulated 

community to monitor and submit 

information sufficient to safeguard 

environmental quality. 

Response: EPA disagrees with 

commenters. The commenters failed to 

point to any such specific provisions. 

The submitted Program lacks adequate 

program requirements for the tracking of 

existing SIP permits’ major and minor 

NSR terms, limits and conditions, and 

whether such requirements are 

incorporated into a Flexible Permit or 

they remain outside the coverage of the 

Flexible Permit. Minor and Major NSR 

permits, as well as Minor NSR SIP 

Permits by Rule and Standard Permits, 

can be incorporated into a Flexible 

Permit without any program 

requirement in place that ensures the 

SIP permits’ terms and conditions are 

included in the Flexible Permit. EPA 

finds that there are not sufficient 

provisions requiring the holder of a 

Flexible Permit to maintain 

recordkeeping sufficient to ensure that 

all terms and conditions of existing 

permits (including representations in 

the applications for such permits) that 

are incorporated into the Flexible 

Permit continue to be met. Paragraph 

(c)(6) of submitted 30 TAC 116.715 

generally requires maintenance of data 

sufficient to demonstrate continuous 

compliance with emission caps and 

individual emission limits contained in 

the Flexible Permit but lacks the 

necessary specificity and replicability 

needed to ensure the enforceability of 

the submitted Program and the 

protection of the NAAQS and control 

strategies. See section III.A (response to 

comment 6) for further information. 

Comment 4: TIP, BCCA, TAB, and 

TxOGA note that TCEQ also may 

impose additional recordkeeping 

requirements appropriate for a specific 

source covered by a Flexible Permit. 

The submitted Program’s rules 

contemplate that additional 

recordkeeping requirements may be 

tailored to the type of source covered by 

a Flexible Permit. TIP comments that 

the submitted Flexible Permits rules are 

as stringent as EPA’s proposed Indian 

Country Minor NSR rules. This 

commenter claims that with respect to 

emission events and maintenance, 

startup, and shutdown emissions (SSM), 

the submitted rules go far beyond 

Federal benchmarks because they 

require compliance with 30 TAC 

101.201 and 101.211. Section 101.201 

includes record-keeping requirements to 

report all reportable and non-reportable 

emissions events within two weeks, 

which in the view of this commenter is 

more stringent than the ‘‘prompt’’ 

reporting requirement of the proposed 

Indian Country counterpart. Again 

citing Section 101.201, commenter 

claims the record retention 

requirements of the submitted Program 

for records of reportable and nonreportable emissions events are similar 

to their proposed Indian Country 

counterparts. 

Response: EPA disagrees with this 

comment. Commenters’ reliance upon 

the Texas rules for malfunction 

emissions and maintenance, startup, 

and shutdown emissions is misplaced. 

Section 101.201 concerns Emissions 

Event Reporting and Recordkeeping 

Requirements; and Section 101.211 

concerns Scheduled Maintenance, 

Startup, Shutdown Reporting and 

Recordkeeping Requirements. These 

two referenced sections concern 

emission events that are a subset of the 

universe of air emissions. Emission 

events are unauthorized emissions by 

nature. See 30 TAC 101.1(28). 

Malfunction related emissions are those 

unauthorized emissions that result from 

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41324 Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 

5See Footnote 1 of the Attachment to the Memo 

entitled ‘‘State Implementation Plans: Policy 

Regarding Excess Emissions During Malfunctions, 

Startup, and Shutdown’’ (September 1999 Policy) 

from Steve Herman and Robert Perciasepe. You can 

access this document at: http://epa.gov/ttn/oarpg/ 

t5/memoranda/exemmpol092099.pdf. 

6See Footnote 1 of the Attachment to the Memo 

entitled ‘‘State Implementation Plans: Policy 

Regarding Excess Emissions During Malfunctions, 

Startup, and Shutdown’’ (September 1999 Policy) 

from Steve Herman and Robert Perciasepe. You can 

access this document at: http://epa.gov/ttn/oarpg/ 

t5/memoranda/exemmpol092099.pdf. 

a sudden and unavoidable breakdown of 

process or control equipment.5

EPA agrees that the submitted 

Program’s rules contemplate that 

additional recordkeeping requirements 

may be required (at the discretion of the 

director). Yet as EPA noted in the 

proposal, the submitted Program is an 

intricate program and therefore, for 

approvability as a Major or Minor NSR 

SIP revision, there is a greater need for 

detailed MRR requirements to ensure, 

among other things, there are adequate 

means for ensuring compliance by each 

holder of a Flexible Permit. Without 

detailed MRR requirements, the 

program is unenforceable. The MRR 

requirements are needed additionally to 

ensure that the issuance of the Flexible 

Permits does not cause or contribute to 

a NAAQS violation, violate the Texas 

control strategy, or violate any other 

CAA requirement. See 74 FR 48480, at 

48490. The submitted Program lacks 

provisions explicitly addressing the 

type of MRR requirements that are 

necessary to ensure that all of the 

movement of emissions between the 

emission points, units, facilities, plants, 

etc., still meet the cap for the pollutant, 

still meet the individual emissions 

limitations, and still meet any other 

applicable State or Federal requirement. 

In addition, there are no limits on the 

types of sources that can be included in 

the cap. It is also difficult to quantify 

emissions from some units, such as 

tanks, fugitive emissions from leaking 

valves, or wastewater emissions points 

that can be included in a Flexible 

Permit under this Program. The 

underpinnings of the submitted Program 

are so complex as to necessitate more 

detailed MRR requirements to ensure 

that the emission cap and/or individual 

emissions limitations in the issued 

Flexible Permits are enforceable. 

Without the appropriate specialized 

MRR requirements, it is generally 

impractical to determine for instance, 

which emission points are covered, 

which modifications of existing noncovered emission points are covered, 

etc. See section III.D.3 (response to 

comment 2) for further information. 

Commenter’s comparison of the 

submitted Program to EPA’s proposed 

Indian Country Minor NSR rules is 

misplaced in the context of this action. 

As an initial point, we clearly stated in 

the proposed rule that we did not intend 

for this regulation of national scope to 

serve as a model or comparison for 

development of State Minor NSR 

programs. See 71 FR 48695, at 48700 

(August 21, 2006). EPA regulations 

require that it review a Minor NSR SIP 

revision to determine if a plan includes 

‘‘legally enforceable procedures’’ that 

enable the permitting agency to 

determine whether a minor source will 

cause or contribute to violations of 

applicable portions of the control 

strategy, 40 CFR 51.160(a)(1), or 

‘‘interference with a national ambient air 

quality standard,’’ 40 CFR 51.160(a)(2), 

and to prevent the source from doing so, 

40 CFR 51.160(b). 

We believe the reporting requirements 

we proposed for the Indian Country 

Minor NSR rules will ensure protection 

of the NAAQS and control strategy. 

Moreover, the standard of review in this 

instance is not a comparison between 

the MRR provisions in the submitted 

Program and any MRR provisions in the 

proposed Indian Country Minor NSR 

rules but a determination whether the 

submitted Program has sufficient legally 

enforceable procedures that enable the 

permitting agency to determine whether 

a minor source will cause or contribute 

to violations of applicable portions of 

the control strategy. As stated above, the 

submitted Program lacks provisions 

explicitly addressing the type of MRR 

requirements that are necessary to 

ensure that all of the movement of 

emissions between the emission points, 

units, facilities, plants, etc., still meet 

the cap for the pollutant, still meet the 

individual emissions limitations, and 

still meet any other applicable State or 

Federal requirement. 

Comment 5: TIP, BCCA, TAB, and 

TxOGA also point out that there is a 

wide array of additional Texas rules 

specifying monitoring, recordkeeping, 

and reporting requirements. For 

instance, the Texas Flexible Permit rules 

also require compliance with section 

101.201, related to reporting and 

recordkeeping of malfunction 

emissions, and section 101.211, related 

to reporting of maintenance, startup, 

and shutdown emissions. Commenters 

claim that there are many detailed 

monitoring, recordkeeping and 

reporting requirements that Flexible 

Permit holders are subject to and there 

are indeed very explicit requirements 

that adequately document the 

operations of sources covered by 

Flexible Permits. 

Response: EPA disagrees with this 

comment. The submitted Program does 

not have provisions explicitly 

specifying the monitoring requirements 

for this Program. 

Without the appropriate specialized 

MRR requirements, it is generally 

impractical to determine information 

such as which emission points are 

covered, and which modifications of 

existing non-covered emission points 

are covered. See section III.D.3 

(response to comment 2) for further 

information. Without replicable 

implementation procedures for 

establishing the emission cap and 

sufficient and MRR requirements, EPA 

lacks sufficient information to make a 

finding that the submitted Program, as 

a Minor NSR SIP program, will ensure 

protection of the NAAQS, and 

noninterference with the Texas SIP 

control strategies and RFP. 

Further, commenters’ reliance upon 

the Texas rules for malfunction 

emissions and maintenance, startup, 

and shutdown emissions is misplaced. 

Section 101.201 concerns Emissions 

Event Reporting and Recordkeeping 

Requirements; and Section 101.211 

concerns Scheduled Maintenance, 

Startup, Shutdown Reporting and 

Recordkeeping Requirements. These 

two referenced sections concern 

emission events that are a subset of the 

universe of air emissions. Emission 

events are unauthorized emissions by 

nature. See 30 TAC 101.1(28). 

Malfunction related emissions are those 

unauthorized emissions that result from 

a sudden and unavoidable breakdown of 

process or control equipment.6 EPA’s 

concern with the structure of the 

Program and its lack of specific MRR 

requirements is not with how 

malfunction and SSM emissions are 

treated concerning MRR but with the 

emissions that are normally emitted and 

how one can determine if the emitted 

emissions are meeting the Flexible 

Permit’s emission limitations. See 

section III.A (response to comment 6) 

for further information. 

As EPA noted in the proposal, the 

submitted Program is an intricate 

program and therefore, for approvability 

as a Major or Minor NSR SIP revision, 

there is a greater need for detailed MRR 

requirements whether to ensure, among 

other things, that a project triggering the 

Major NSR SIP requirements is covered 

under Major NSR or there are adequate 

means for ensuring compliance by each 

holder of a Flexible Permit. These are 

needed additionally to ensure that the 

issuance of the Flexible Permits does 

not cause or contribute to a NAAQS 

violation, violate the Texas control 

strategy, or violate any other CAA 

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requirement. See 74 FR 48480, at 48490, 

and section III.D.3 (response to 

comment 4) for further information. 

Comment 6: TAB and TxOGA 

comment that the submitted Flexible 

Permit rules provide for the 

enumeration of special conditions 

including requirements for monitoring, 

testing, recordkeeping, and reporting 

(MRR). Commenter also asserts that EPA 

does not include any analysis that might 

lead one to understand what additional 

specificity or detail is necessary, or how 

or why the many detailed requirements 

in TCEQ’s rules (specifically 30 TAC 

101.10, 115.116, 117.801 and 111.111) 

are inadequate. 

Response: EPA disagrees with this 

comment that the Agency has not 

provided a reasonable basis for it 

findings. Appropriate MRR provisions 

are necessary to establish how 

compliance will be determined and be 

sufficient to ensure that the NAAQS and 

control strategies are protected. There is 

further discussion in the General 

Preamble about EPA’s interpretation of 

the Act’s requirements for enforceability 

and that submitted rules must ‘‘specify 

clear, unambiguous, and measurable 

requirements.’’ See 57 FR at 13567. The 

Program’s rules do not contain specific 

enumerated requirements for MRR. It is 

not legally sufficient even if the State is 

issuing individual Flexible Permits with 

special conditions requiring MRR. In 

order for the Program to be approvable 

as a SIP revision, the Program itself 

must contain specific objective, 

replicable MRR requirements that 

ensure compliance with all terms and 

conditions of each Flexible Permit 

issued by the TCEQ. There are no 

provisions providing clear criteria for 

determining what type of MRR 

requirements are needed. The Program 

is too complex to leave the choice of 

MRR requirements up to the individual 

issuance of a Flexible Permit, and up to 

the discretion of the Executive Director 

of the TCEQ. EPA finds such director 

discretion provisions are not acceptable 

for inclusion in SIPs, unless each 

director decision is required under the 

plan to be submitted to EPA for 

approval as a single-source SIP revision. 

This Program does not contain specific, 

objective, and replicable criteria for 

determining whether the Executive 

Director’s choice of MRR requirements 

will be effective in terms of 

enforceability, compliance assurance, 

and ambient impacts. See 74 FR 48480, 

at 48490, and section III.A (response to 

comment 6) for further information. 

Comment 7: TAB and TxOGA 

comment that EPA does not provide any 

example of a permit or permits the 

review of which led to that conclusion 

that absence of certain recordkeeping 

and reporting made it difficult to derive 

information from Flexible Permits. TCC 

notes that there is significant difference 

in the types of sources that apply for a 

Flexible Permit; therefore, it is difficult 

for TCEQ to implement rulemaking for 

every type of recordkeeping, monitoring 

and tracking requirements that may 

apply. Attempting to incorporate these 

variable components into one 

comprehensive rule could severely limit 

TCEQ’s ability to implement adequately 

these requirements. BCCA comments 

that the Flexible Permit rules 

contemplate that additional 

recordkeeping requirements many be 

tailored to the type of source covered by 

a Flexible Permit making them as least 

as stringent as their Federal 

counterparts. BCCA highlights a 

comparison to the proposed Indian 

Country Minor NSR rules to make this 

point. 

Response: The proper scope of review 

for this SIP revision submittal does not 

include a review of the State’s 

individually issued Flexible Permits to 

determine whether there are adequate 

recordkeeping and reporting 

requirements in each permit. These 

Flexible Permits never should have been 

issued since the submitted Program is 

not part of the Texas NSR SIP. EPA’s 

review is instead focused on the 

structure of the submitted Program, 

ensuring that it includes legally 

sufficient recordkeeping and reporting 

requirements. This is necessary to 

ensure that not only does the submitted 

Program not interfere with NAAQS 

attainment, the Texas SIP control 

strategies, and RFP, but the proposed 

revision is enforceable pursuant to 

section 110(a))(2)(A)–(C) of the Act. The 

September 23, 1987, Memorandum from 

J. Craig Potter, Assistant Administrator 

for Air and Radiation, and Thomas L. 

Adams Jr., Assistant Administrator for 

Enforcement and Compliance 

Monitoring, entitled ‘‘Review of State 

Implementation Plans and Revisions for 

Enforceability and Legal Sufficiency’’ 

provides EPA’s guidance for 

interpreting this provision in the Act. 

See also the General Preamble at page 

13566. Submitted rules that are clear as 

to who must comply, and explicit in 

their applicability to regulated sources 

are appropriate means for achieving the 

statutory enforcement requirement. 

Specific, objective, and replicable 

criteria are to be set forth for 

determining whether this new type of 

NSR permit will be truly equivalent to 

the other minor NSR SIP permits in 

terms of being consistent with the levels 

specified in the control strategies, 

including air quality impacts, etc. 

Appropriate testing, recordkeeping, 

reporting, and monitoring provisions are 

necessary to establish how compliance 

will be determined and be sufficient to 

ensure that the NAAQS and PSD 

increments are protected. See 74 FR 

48480, at 48492. Furthermore, any 

permitting rule will apply to a variety of 

sources (unless it is a permit adopted 

specifically for a source category and 

limited to that affected source category). 

The submitted Program allows a 

Flexible Permit holder to selectively 

include new facilities and/or new 

modifications under the umbrella of a 

Flexible Permit. Without the 

appropriate specialized MRR 

requirements, it is generally impractical 

to determine information such as which 

emission points are covered, and which 

modifications of existing non-covered 

emission points are covered. See section 

III.D.3 (response to comment 2) for 

further information. Submitted 

116.711(7) is an illustration of our 

concerns. It states that initial 

compliance testing with ongoing 

compliance by engineering calculations 

‘‘may be required.’’ This means that 

under the Program, compliance testing 

may, or may not, be required and 

provides no guidance for when 

monitoring will be required. See section 

III.A (response to comment 6) for further 

information. 

The submitted Flexible Permit 

Program does not compare favorably 

with the MRR requirements that are 

proposed in the proposed Indian 

Country Minor NSR rules. The proposed 

Indian Country Minor NSR Rules would 

require the permit to include monitoring 

sufficient to assure compliance with any 

control technology requirements 

contained in the permit. Monitoring 

approaches may include continuous 

emission monitoring systems, predictive 

emission monitoring systems, 

continuous parameter monitoring 

systems, periodic manual logging of 

monitor readings, equipment 

inspections, mass balances, periodic 

performance tests, and/or emission 

factors, as appropriate for the minor 

source. None of these monitoring 

approaches is addressed in the 

submitted Program. The proposed 

Indian County Minor NSR Rules also 

would require the permit to include 

recordkeeping sufficient to assure 

compliance with enforceable emission 

limitations in the permit and require 

retention of the records for five years 

from the date of the record. The 

submitted Program lacks this specificity 

for the recordkeeping requirements. The 

proposed Indian County Minor NSR 

Rules also would require annual 

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41326 Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 

7Section 116.711(2) of the submitted Program 

provides that emissions will be measured ‘‘as 

determined by the executive director.’’ This broad 

discretion lacks accountability, replicability and 

fails to provide for a full evaluation of the 

enforceability of permits issued under the Program. 

8EPA’s letter of March 12, 2008, on pages 12 to 

13 of the Enclosure provides some examples of, and 

concepts on how to establish replicable 

recordkeeping, reporting, tracking, and monitoring 

requirements up-front in a NSR program without 

requiring every director discretion decision to be 

adopted and submitted to EPA for approval as a 

source-specific SIP revision. 

monitoring reports showing whether the 

permittee has complied with the permit 

emission limitations and prompt reports 

of deviations from permit requirements, 

including those attributable to upset 

conditions, probable cause of such 

deviations, and any corrective or 

preventative measures taken. See 71 FR 

48695, at 48715–48716 and 48738 

(August 21, 2006). Thus even assuming 

such a comparison represented the 

proper scope of review, the MRR 

provisions of the submitted Program do 

not compare favorably to those in the 

proposed Indian Country Minor NSR 

Program. The MRR provisions of the 

Texas Flexible Permit Program do not 

contain this level of MRR or otherwise 

sufficient MRR provisions given the 

features of the Program. 

Comment 8: The Clinic comments 

that there are no provisions for ensuring 

that emission reductions are real, 

permanent, and enforceable. 

Response: Specific, objective, and 

replicable criteria are required to be set 

forth for determining whether this new 

type of NSR permit program will be 

truly equivalent to the other Minor NSR 

SIP permit programs in terms of being 

consistent with the levels specified in 

the control strategies, including air 

quality impacts, etc. Appropriate MRR 

provisions are necessary to establish 

how compliance will be determined and 

be sufficient to ensure that the NAAQS 

and Texas control strategies are 

protected. Without replicable 

procedures for establishing the 

emissions caps, the lack of 

enforceability, the director discretion 

regarding whether or not to require MRR 

and the lack of sufficient MRR 

requirements, EPA cannot be assured 

that the submitted Program does indeed 

produce permanent emission 

reductions. See section III.A (response 

to comment 6) for further information. 

Comment 9: The Clinic comments 

that the Flexible Permit rules fail to 

assure that permits include enforceable 

limits, as required by the Clean Air Act. 

There is no required monitoring or 

reporting to assure compliance with the 

terms and conditions. Likewise, the 

Flexible Permit rules fail to require 

adequate monitoring and reporting for 

those emission limits and requirements 

that are included in the Flexible Permit. 

The rules require measurement of 

emissions ‘‘as determined by the 

executive director.’’ See submitted 30 

TAC 116.711(2). They also require that 

unspecified ‘‘information and data 

sufficient to demonstrate continuous 

compliance with the emission caps and 

individual emission limitations 

contained in the flexible permit’’ be kept 

at the plant site and made available for 

TCEQ inspection. See submitted 30 TAC 

116.715(c)(6). These requirements are 

clearly insufficient to demonstrate 

compliance with emission caps 

applicable to dozens of dissimilar 

emission units. For a program as 

complex as the Texas Program, stringent 

monitoring must not be left up to the 

discretion of the Executive Director. 

Instead, stringent monitoring and 

reporting requirements must be required 

by regulation for all units covered under 

a Flexible Permit. Because the Texas 

Flexible Permit is more complex than 

either the PAL or the Green Groups 

proposal, it should include monitoring 

at least as stringent as required by those 

rules. 

Response: EPA generally agrees with 

these comments. The submitted 

Program does not meet the requirements 

of section 110(a)(2)(A)–(C) of the Act, 

which require that SIP revision 

submittals be enforceable.7 There are no 

specific up-front methodologies in the 

submitted Program to be able to 

determine compliance. There are no 

sufficient MRR provisions in the 

submitted Program. Accordingly, the 

Program lacks requirements necessary 

for enforcement and assurance of 

compliance. There are no specific upfront methodologies in the Program to 

be able to determine compliance. It fails 

to meet the enforceability requirements 

as a program or for an affected source, 

and it cannot assure compliance with 

the Program or by the holder of a 

Flexible Permit. See 74 FR 48480, at 

48490, section III.A (response to 

comment 6) for further information. 

Instead, MRR requirements 

appropriate for such a complex Program 

must be required by regulation for all 

units covered under a Flexible Permit. 

Whether or not to require MRR 

requirements in a Flexible Permit 

should not be left to director discretion. 

This complex and intricate Program, for 

enforceability purposes, requires 

sufficient MRR requirements for each 

Flexible Permit. In the proposal, we 

stated that we are concerned with the 

adequacy of the MRR requirements in 

the submitted Program.8 This submitted 

Program is an intricate program and 

therefore, for approvability as a NSR SIP 

revision, there is a greater need for 

detailed MRR requirements whether to 

ensure that a project triggering the Major 

NSR SIP requirements is covered under 

Major NSR or to ensure that there are 

adequate means for ensuring 

compliance of each affected entity 

under both Major and Minor NSR. See 

section III.D.3 (response to comment 2) 

for further information. 

Finally, the commenter stated that 

because the Texas Flexible Permit 

Program is more complex than either 

the Federal PAL SIP rule or the Federal 

Green Groups proposal, it should 

include monitoring at least as stringent 

as required by those rules. EPA is not 

requiring that the Program include the 

specific MRR as required or proposed 

for another program. As stated above, to 

be approvable as a SIP revision, the 

Program must contain specific, 

replicable MRR requirements that 

ensure compliance with all terms and 

conditions of each Flexible Permit 

issued by the TCEQ. See section III.C.6 

(response to comment 2) for additional 

information. 

Comment 10: The Clinic comments 

that the Program does not assure that 

permit terms of pre-existing NSR 

permits remain as part of the Flexible 

Permit and therefore enforceable. The 

Clinic provided information on a 

refinery that had a PSD permit and 

subsequently received a Flexible Permit 

from TCEQ. The PSD permit included 

emission limits for two fluid catalytic 

cracking units (FCCUs). When the 

Flexible Permit was issued, these 

emission limits in the PSD permit were 

not included as separate from the limits 

in the Flexible Permit; instead, the 

Flexible Permit included the FCCUs 

among the units subject to the emission 

caps. When the refinery subsequently 

reported emission events, it reported 

only the Flexible Permit and its 

associated caps as the applicable limits, 

rather than the limits from the preexisting Major NSR SIP permits. 

Response: The submitted Program 

lacks adequate program requirements 

for whether or not the terms and 

conditions of pre-existing Major and 

Minor SIP permits are incorporated into 

a Flexible Permit or they remain outside 

the coverage of the Flexible Permit. 

While the comments on implementation 

of the submitted Program as related to 

a particular source are not relevant to 

this action, they do highlight EPA’s 

concerns about why the submitted 

Program is not approvable. The 

submitted Flexible Permit Program also 

lacks sufficient recordkeeping 

provisions to ensure that all terms and 

conditions of pre-existing Major and 

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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 41327 

9 You can access this document directly at: 

http://www.regulations.gov/search/Regs/ 

home.html#documentDetail?R=0900006480a2bd1d. 

Minor NSR SIP permits (including 

representations in the applications for 

such permits) that are incorporated into 

the Flexible Permit continue to be met. 

These underlying Major and Minor NSR 

SIP permits remain legally enforceable 

but the lack of specificity in the 

submitted Program impacts practical 

enforceability. See 74 FR 48493, and 

section III.A (response to comment 6) 

and section III.D.3 (response to 

comment 11, below) for further 

information. 

Comment 11: A member of the Sierra 

Club cites to references from the 

proposal that relate to the lack of 

appropriate MRR requirements in the 

Program. An individual commenter 

states that as an air quality investigator 

for the City of Houston Bureau of Air 

Quality Control, investigating 

documentation of compliance for a 

Flexible Permit was presented an entire 

roomful of binders, containing 

emissions information for different 

sources under one cap. The company 

representative said that this was the 

documentation of the company’s 

compliance with the Flexible Permit. 

Confronted with these practical 

difficulties, the commenter was unable 

to determine the company’s compliance 

with its Flexible Permit Cap. 

Response: The EPA agrees with these 

comments. While the comments on 

implementation of the submitted 

Program are not relevant to this action, 

they do highlight EPA’s concerns about 

why the submitted Program is not 

approvable. The submitted Program 

lacks provisions explicitly addressing 

the type of monitoring requirements that 

are necessary to ensure that all of the 

movement of emissions between the 

emission points, units, facilities, plants, 

etc., still meet the cap for the pollutant, 

still meet the individual emissions 

limitations, and still meet any other 

applicable State or Federal requirement. 

In addition, there are no limits on the 

types of sources that can be included in 

the cap. It is also difficult to quantify 

emissions from some units, such as 

tanks, fugitive emissions from leaking 

valves, or wastewater emissions points 

that can be included in a Flexible 

Permit under this Program. This 

comment also highlights the lack of 

adequate program requirements for the 

tracking of existing SIP permits’ major 

and minor NSR terms, limits and 

conditions, and whether such 

requirements are incorporated into a 

Flexible Permit or they remain outside 

the coverage of the Flexible Permit. This 

further highlights the lack of MRR 

sufficient to establish how compliance 

will be determined and to ensure that 

NAAQS and Texas control strategies are 

protected. See 74 FR 40480, at 40493, 

section III.D.3 (responses to comment 1, 

2, 4, 5, 7, and 10, above), and section 

III.A (response to comment 6) for further 

information. 

4. Revocation of Major NSR Permits 

Under a Minor NSR Program 

Comment: The Clinic comments that 

Flexible Permits are used to eliminate or 

amend existing Nonattainment NSR and 

PSD permit terms without following SIP 

required procedures for permit 

amendments. 

Response: We are disapproving the 

submitted Program because it is 

ambiguous and could be interpreted to 

allow holders of a Flexible Permit to 

make de facto amendments of existing 

SIP permits, including changes in the 

terms and conditions (such as 

throughput, fuel type, hours of 

operation) of minor and major NSR 

permits, without a preconstruction 

review by Texas. While we have 

recognized that under certain 

circumstances changes to PSD permits 

may be appropriate, such changes are 

generally not allowed without a review 

of the new circumstances by the 

permitting authority. As EPA has 

explained, any time a change to a permit 

limit founded in BACT is being 

considered, a corresponding 

reevaluation (or reopening) of the 

original BACT determination may be 

necessary. See, ‘‘Request for 

Determination on Best Available Control 

Technology (BACT) Issues—Ogden 

Martin Tulsa Municipal Waste 

Incinerator Facility,’’ from Gary 

McCutchen, Chief of OAQPS NSR 

Section (Nov. 19, 1987). See 74 FR 

40480, at 48493 and a copy of the 

document is in the docket at document 

ID EPA–R06–OAR–2005–TX–0032– 

0025.9

5. Protection of the NAAQS Under a 

Minor NSR Program 

Comment: The Clinic comments that 

the submitted Flexible Permits Program 

is inadequate to assure protection of the 

NAAQS, increments, and control 

strategy. 

Response: Approval of the submitted 

Program as a Minor NSR SIP revision 

requires that it include legally 

enforceable procedures that enable the 

State to determine whether construction 

or modification by a holder of a Flexible 

Permit would violate a control strategy 

or interfere with attainment or 

maintenance of the NAAQS. See 40 CFR 

51.160(a)–(b). Without a replicable 

methodology for establishing the 

emissions caps, the lack of 

enforceability, the director discretion 

concerning whether or not to require 

MRR conditions in a Flexible Permit, 

and the lack of sufficient MRR 

requirements in the submitted Program, 

EPA lacks sufficient information to 

make a finding that the submitted 

Program, as a Minor NSR SIP program, 

will ensure protection of the NAAQS, 

and noninterference with the Texas SIP 

control strategies and RFP. See 74 FR 

48480, at 48490–48492, and section 

III.A (response to comment 6) for further 

information. 

E. Definition of Account 

Comment 1: TCEQ does not agree 

with EPA’s understanding of the term 

‘‘account’’ as applied by TCEQ. TCEQ 

maintains that it has included in each 

of its permitting rules appropriate 

definitions to meet State and Federal 

requirements. TCEQ interprets an 

‘‘account’’ to include multiple ‘‘sources.’’ 

Within this rule, it interprets ‘‘sources’’ 

as being equivalent to multiple 

‘‘facilities’’ (a facility is a discrete piece 

of equipment or source of air 

contaminants) under Texas Minor 

Source definitions. A Flexible Permit 

cannot cover more than one major 

stationary source, as the term is used by 

EPA and TCEQ for Federal NSR 

purposes. 

Response: We appreciate TCEQ’s 

explanation of the terms ‘‘account,’’ 

‘‘facility’’ and ‘‘source’’ as it intends them 

to apply in the submitted Program. We 

are pleased to learn that the State does 

not intend to allow a Flexible Permit to 

cover multiple major stationary sources 

and that companies complying with a 

Flexible Permit understand the 

continued obligation to comply with the 

SIP-approved Major NSR program at all 

major stationary sources and major 

modifications. Nonetheless, we believe 

that the definitions are not sufficiently 

limiting to preclude issuance of a 

Flexible Permit to multiple major 

stationary sources. This is because the 

terms ‘‘source’’ and ‘‘account’’ rely on the 

term ‘‘site’’ which does not contain the 

SIC code limitation contained in the 

Federal definitions. Without this 

limitation, the broad terms can 

encompass more than one major 

stationary source. For example, a 

petroleum refiner (SIC code 2911) may 

be collocated with a Plastic Materials 

and Resins manufacturer (SIC code 

2821) and be under common control 

and ownership, and neither source is a 

support facility to the other. But, under 

the Major NSR program, these two 

facilities would be considered separate 

major stationary sources by virtue of a 

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41328 Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 

difference in each facility’s SIC 

irrespective of the fact that they are 

located at the same ‘‘site.’’ Notably this 

is not the case for the Title V and 

Section 112 programs. A single Title V 

permit can be issued to the ‘‘site.’’ TCEQ 

asserts that an account includes 

multiple sources and that the term 

‘‘source’’ is limited to a discrete piece of 

equipment or source of air 

contaminants. There is nothing in the 

submitted Program’s rules and 

definitions that limit the term ‘‘account’’ 

to one ‘‘major stationary source’’ much 

less to a discrete piece of equipment. 

This submitted Program establishes an 

emissions cap over a group of one or 

more emissions points located at an 

‘‘account’’ site. 30 TAC 101.1(1). The 

Texas SIP defines an ‘‘account’’ to 

include an entire company site, which 

could include more than one plant and 

certainly more than one major stationary 

source. See the approved SIP rule 30 

TAC 101.1(1), second sentence. On its 

plain face, the term ‘‘account’’ cannot be 

interpreted to be limited to a single 

major stationary source. 

Comment 2: BCCA, TCC, TIP and 

TAB, and TxOGA comment that the 

definition of ‘‘account’’ is tied to the 

definition of ‘‘site’’ at 30 TAC 101.1(1) 

and (87). These commenters view this as 

limiting an account to a specific plant 

site. Commenters also point to the Title 

V rules as providing additional 

limitation. Citing 30 TAC 116.710(a)(1) 

and (4), the commenters point out that 

only one Flexible Permit may be issued 

at an account site and a Flexible Permit 

may not cover sources at more than one 

account site. In summary, commenters 

conclude that if these rules are read 

together they provide sufficient 

safeguards against a major stationary 

source netting a significant emissions 

increase against a decrease occurring 

outside a site using a Flexible Permit. 

TAB comments if a Flexible Permit 

could be obtained for more than one 

site, the only reasonable construction of 

the rule would be ‘‘* * * a facility, 

group of facilities, account or accounts 

***’’ but the rule is not so constructed 

because it does not extend a Flexible 

Permit to more than one site. 

Response: EPA disagrees with the 

comment. Concerning the comment that 

an account is limited to a site and that 

the submitted Flexible Permit Program 

limits only one Flexible Permit at an 

account does not address our concern 

that an account may include more than 

one major stationary source. See the 

section III.D.1 (response to comment 1) 

and 74 FR 48480, at 48489 for further 

information. The commenter’s reliance 

on the Title V rules does not identify a 

specific provision in the Texas Title V 

program that supports the commenter’s 

position. 

Furthermore, the reliance on the Title 

V program as providing additional 

limitation for limiting an account to a 

major stationary source does not address 

this matter. The Title V program is an 

operating permit program that 

incorporates the applicable 

requirements of the CAA (including the 

requirements of the approved SIP) into 

the operating permit. See 40 CFR 70.2— 

definition of ‘‘applicable requirement’’ 

and 70.6(a)(1). The Title V Program 

generally does not create applicable 

requirements independently of the 

applicable requirements in the approved 

SIP and other requirements of the CAA. 

Public Citizen v. EPA, 343 F.3d 449, 453 

(5th Cir. 2003) (‘‘Title V permits do not 

impose additional requirements on 

sources but, to facilitate compliance, 

consolidate all applicable requirements 

in a single document. See 42 U.S.C. 

7661a(a); see also Virginia v. Browner, 

80 F.3d 869, 873 (4th Cir.1996) (Title V 

permit ‘‘is a source-specific bible for 

[CAA] compliance’’), cert. denied, 519 

U.S. 1090, 117 S.Ct. 764, 136 L.Ed.2d 

711 (1997).’’); Sierra Club v. Georgia 

Power Co., 443 F.3d 1346, 1348 (11th 

Cir. 2006) (Title V ‘‘generally does not 

impose new substantive air quality 

control requirements.’’) 

In summary, for the reasons stated 

above, the definition of ‘‘account’’ is not 

limited to a single major stationary 

source and may include multiple major 

stationary sources, or in other 

circumstances, may include a subset of 

a major stationary source. 

F. Public Participation 

Comment 1: TCC comments that any 

future changes in the public 

participation aspects of the Flexible 

Permit program should apply 

prospectively and have no effect on the 

existing permits. 

Response: EPA cannot comment on 

what actions it will take regarding any 

future changes in the public 

participation aspects of the Flexible 

Permit Program and therefore defers 

responding because those changes are 

outside the scope of the present 

rulemaking. We wish to note, however, 

existing Flexible Permits were not 

issued under the Texas NSR SIP, and 

any future Flexible Permits also will not 

be issued under the Texas NSR SIP. 

Comment 2: The Clinic comments 

that the CAA and its implementing 

regulations include minimal 

requirements for public participation in 

permitting. This includes, for Major and 

Minor NSR permits and modifications, 

the requirements under 40 CFR 51.161 

and for PSD permits, additional 

requirements as provided under 40 CFR 

51.166(q). Texas public participation 

rules for Flexible Permits in 30 TAC 

Chapter 39 require 30-days public 

notice and comment on initial issuance 

of Flexible Permits and amendments to 

a Flexible Permit if the action involves 

construction of a new facility or meets 

certain criteria, including modifications 

resulting in allowable emissions 

increases of 250 tons per year of carbon 

monoxide and nitrogen oxides or 25 

tons per year of other pollutants. See 30 

TAC 39.403(b). This restriction is 

inconsistent with Federal requirements 

for both Major and Minor NSR. The 

commenters further object to the use of 

alterations and permits by rule to 

change Flexible Permit terms and 

conditions; such changes should be 

made through permit amendment with 

at least 30-days public notice and 

comment. 

Response: In the proposal, EPA 

proposed to disapprove 30 TAC 116.740 

because this submitted rule relates to 

the public participation requirements of 

the submitted Flexible Permit Program, 

and is not severable from the Program. 

Because we are disapproving the 

Flexible Permit Program, we are 

likewise disapproving the inseverable 

provisions in 30 TAC 116.740, Public 

Notice, for the Program. See 74 FR 

40480, at 48491 and 48493. 

The comments relating to the 

provisions in 30 TAC Chapter 39, the 

use of permit alterations and Permits by 

Rule in lieu of permit amendment with 

at least 30-days public notice and 

comment are outside the scope of this 

action. 

Comment 3: GCLC provided 

comments on Texas’s submitted public 

participation program that it is robust 

and fully compliant with Federal 

requirements and in fact exceeds 

Federal requirements. GCLC comments 

that even parties not residing in the 

State may comment on an air permit 

application and TCEQ is obligated to 

respond whereas under Federal 

requirements only affected persons are 

allowed to comment and trigger a 

response obligation. GCLC asserts that 

the ‘‘public meeting’’ component of the 

State program is equivalent to the 

‘‘public hearing’’ component of the 

Federal program. GCLC comments that 

the trial-type contested hearing process 

in the Texas program goes well beyond 

the Federal requirements which permit 

only interested parties to participate 

during the notice and comment period. 

Response: We recognize that our 

proposal included a brief discussion of 

how the submitted Flexible Permit 

Program requires compliance with 

provisions in Chapter 39 of the Texas 

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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 41329 

Administrative Code. On November 26, 

2008, EPA proposed limited approval/ 

limited disapproval of the Texas 

submittals relating to public 

participation for air permits of new and 

modified facilities (73 FR 72001). In our 

November 26, 2008, proposal of the 

Texas Public Participation rules, we 

proposed no action on 30 TAC 116.740 

and stated that we would address that 

section in a separate action. See 73 FR 

72001, at 72015. In our proposal of the 

Texas Flexible Permits Program, we 

proposed to disapprove 30 TAC 116.740 

because this submitted rule relates to 

the public participation requirements of 

the submitted Flexible Permit Program, 

and is not severable from the Program. 

Because we are disapproving the 

Flexible Permit Program, we are 

likewise disapproving the inseverable 

provisions in 30 TAC 116.740, Public 

Notice, for the Program. See 74 FR 

40480, at 48491 and 48493. 

IV. What are the Grounds for This 

Disapproval Action of the Texas 

Flexible Permits State Program? 

EPA is disapproving revisions to the 

SIP submitted by the State of Texas that 

relate to the Flexible Permits State 

Program, identified in the above Tables 

1 and 2. Sources are reminded that they 

remain subject to the requirements of 

the federally approved Texas SIP and 

may be subject to enforcement actions 

for violations of the SIP. See EPA’s 

Revised Guidance on Enforcement 

during Pending SIP Revisions, (March 1, 

1991). You can access this document at: 

http://www.epa.gov/compliance/ 

resources/policies/civil/caa/stationary/ 

enf-siprev-rpt.pdf. However, this final 

disapproval action does not affect 

Federal enforceability of Major and 

Minor NSR SIP permits. 

The provisions affected by this 

disapproval action include regulatory 

provisions at 30 TAC 116.110(a)(3), 

116.710, 116.711, 116.714, 116.715, 

116.716, 116.717, 116.718, 116.720, 

116.721, 116.722, 116.730, 116.740, 

116.750, and 116.760; and definitions at 

30 TAC 116.10(11)(F), and 30 TAC 

116.13 under 30 TAC Chapter 116, 

Control of Air Pollution by Permits for 

New Construction or Modification. EPA 

finds that these submitted provisions 

and definitions in the submittals 

affecting the Texas Flexible Permits 

State Program are not severable from 

each other. Specifically, EPA is making 

the following findings and taking the 

following actions as described below: 

A. The Texas Flexible Permits Program 

is Unclear Whether It is for a Major or 

Minor NSR SIP Revision 

Several commenters claim that the 

submitted Program is clear that every 

project for which a Flexible Permit is 

issued must also comply with Major 

NSR requirements, and therefore was 

not intended to be a Major NSR SIP 

revision. Other commenters disagree 

and say the rules are not clear on their 

face that the Program requires 

compliance with the Major NSR 

requirements. The latter commenters 

agree with EPA’s analysis of the 

submitted Program in the proposal and 

comment that we correctly stated that 

we were required to review the 

submittal as a substitute for a Major 

NSR program because the submittal is 

not clearly limited to minor sources and 

minor modifications. TCEQ states that 

the Flexible Permit Program was not 

intended to be a substitute for the Major 

NSR permitting requirements but that it 

understands EPA’s concerns with 

ambiguity regarding the applicability of 

the submitted Program, that this is not 

specifically stated in the submitted 

Program’s regulations. Furthermore, the 

TCEQ commits to revise its rules to 

make it clear that the Program is limited 

to Minor NSR. 

The submitted Program is analogous 

to two other Minor NSR programs 

(Standard Permits and Permits by Rule) 

in Texas’s SIP because they too provide 

a different permit option for facilities. In 

particular, these programs exempt 

facilities from obtaining a sourcespecific (i.e., case-by case) permit. 

Unlike the submitted Program, however, 

the SIP rules for Standard Permits and 

Permits by Rule include an applicability 

statement and a regulatory provision 

that expressly limits applicability to 

minor sources and minor modifications. 

The Standard Permits rules explicitly 

require a Major NSR applicability 

determination at 30 TAC 116.610(b), 

and prohibit circumvention of Major 

NSR at 30 TAC 116.610(c). Likewise, the 

Permits by Rule provisions explicitly 

require a Major NSR applicability 

determination at 30 TAC 106.4(a)(3), 

and prohibit circumvention of Major 

NSR at 30 TAC 106.4(b). In each, the 

State specifically expressed its intention 

to require a Major NSR applicability 

determination and prohibit 

circumvention of Major NSR. The 

absence of a similar Major NSR 

applicability determination requirement 

and a similar regulatory prohibition for 

circumvention of the Major NSR SIP 

permitting requirements in the 

submitted Flexible Permits Program 

creates unacceptable ambiguity. The 

commenters opposing our proposed 

action fail to provide an explanation of 

why the TCEQ did not write the 

submitted Flexible Permit rules with the 

same provisions as the Texas Minor 

NSR Permits by Rule and Standard 

Permit SIP rules. A clear intention to 

limit the submitted Program to minor 

sources and minor modifications would 

have resulted in a similar structure to 

the Texas Minor NSR Permits by Rule 

and Standard Permit SIP rules. The 

State, however, did not include such 

provision in the submitted Flexible 

Permits Program. See 74 FR 48480, at 

48487, and section III.B (response to 

comment 1) for further information. 

B. The Texas Flexible Permits Program 

is Not Approvable as a Substitute Major 

NSR SIP Revision 

Because of the State’s disavowal of 

any intent to have this SIP revision 

submittal treated as a substitute for a 

Major NSR SIP program, it did not 

submit a demonstration as required by 

40 CFR 51.165(a)(2)(ii) and 

51.166(a)(7)(iv) to show that its Program 

was as stringent as the EPA Major NSR 

SIP program requirements. It also did 

not explain how the submitted Program 

is consistent with the Act’s 

requirements for a Major NSR SIP 

revision. As discussed at 74 FR 38480, 

at 48487, and in section III.B (response 

to comments 1 and 2), section III.C.1 

(responses to comments 1 and 2), and 

section III.C.3 (responses to comments 1 

and 2) of this notice, the State did not 

structure the submitted Program in a 

similar fashion as the Texas Minor 

Standard Permits and Permits by Rule 

NSR SIP programs. This lack of a similar 

regulatory structure creates the 

ambiguities whether the submitted 

Program is truly limited to Minor NSR 

and whether it prohibits the 

circumvention of the Federal Major NSR 

SIP requirements. Without the required 

demonstration and with the ambiguities, 

EPA is disapproving the Program as not 

meeting the Major NSR SIP 

requirements that require the Major NSR 

applicability requirements be met and 

that prevent circumvention of Major 

NSR. See 74 FR 48480, at 48488, section 

III.B (response to comment 1) and 

section III.C.1 of this notice for further 

information. 

Some commenters assert that the 

submitted Program meets the netting 

criteria for a Major NSR SIP revision. 

Others argue differently. Under the 

submitted Program, not all emission 

points, units, facilities, major stationary 

sources, minor modifications to an 

existing major stationary source, and so 

forth, at a site are required to be 

included in the site’s Flexible Permit. 

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The submitted Program allows an 

emission cap to be established under a 

Flexible Permit account to include 

multiple major stationary sources and 

allow a major stationary source to net a 

significant emissions increase against a 

decrease occurring outside the major 

stationary source, from facilities on the 

account’s site, and, in other 

circumstances, allowing an evaluation 

of emissions of a subset of units at a 

major stationary source. As a result, the 

regulated community may apply these 

regulations inconsistently and in a way 

that fails to evaluate emissions changes 

at the entire major stationary source 

correctly as required by the Major NSR 

SIP regulations. See section III.E 

(responses to comments 1 and 2) for 

further information. 

Therefore, the submitted Program 

does not meet the CAA’s definition of 

‘‘modification’’ and the Major NSR SIP 

requirements and is inconsistent with 

Alabama Power v. Costle, 636 F.2d 323, 

401–403 (D.C. Cir. 1980) and Asarco v. 

EPA, 578 F.2d 320 (D.C. Cir.1978). The 

submitted Program does not meet the 

Major NSR SIP requirements for netting. 

Second, the Program authorizes existing 

allowable emissions, rather than actual 

emissions, to be used as a baseline to 

determine applicability. Therefore, this 

use of allowables is inconsistent with 

the requirements of the Act for Major 

NSR and is contrary to New York v. 

EPA, 413 F.3d 3, 38–40 (D.C. Cir. 2005) 

(‘‘New York I’’). See 74 FR 48480, at 

48489–48490, and section III.C.2 

(response to comment 2) for further 

information. 

Several commenters claim that the 

submitted Program requires the 

retention of the conditions of an existing 

PSD or Nonattainment NSR permit and 

that the TCEQ is required under the 

submitted Program to carry forward 

such terms and conditions in a Flexible 

Permit. On the other hand, there was a 

comment that the submitted Program 

contains no such requirement and that 

TCEQ regularly voids existing 

Nonattainment and PSD NSR permits 

when it issues a Flexible Permit. The 

submitted Flexible Permit Program is 

not clear and explicit that Flexible 

Permits cannot be used to eliminate or 

amend existing Nonattainment and PSD 

NSR SIP permit terms and conditions. 

There are not sufficient provisions in 

the submitted Program requiring the 

holder of a Flexible Permit to maintain 

recordkeeping sufficient to ensure that 

all terms and conditions of pre-existing 

permits (including representations in 

the applications for such permits) that 

are incorporated into the Flexible 

Permit continue to be met. The 

submitted Program lacks adequate 

program requirements for the tracking of 

existing SIP permits’ Major NSR terms, 

limits and conditions, and whether such 

requirements are incorporated into a 

Flexible Permit or they remain outside 

the coverage of the Flexible Permit. The 

submitted Program is ambiguous and 

can be interpreted to allow holders of a 

Flexible Permit to make de facto 

amendments of existing SIP permits, 

including changes in the terms and 

conditions (such as throughput, fuel 

type, hours of operation) of Major NSR 

permits, without a preconstruction 

review by Texas. See section III.C.5 for 

further information. 

Therefore, the submitted Program 

does not require the retention of the 

conditions of Major NSR SIP permits 

upon the issuance of a Flexible Permit, 

as is required for a Major NSR SIP 

revision. 

Pursuant to 40 CFR 51.165(a)(2)(ii) 

and 51.166(a)(7)(iv), where a State 

submits a revision to its Major NSR SIP 

that differs from the Federal Major NSR 

base program SIP requirements, the 

State has an affirmative obligation to 

explain how the submitted program 

satisfies the CAA and to demonstrate 

why the submitted program is in fact at 

least as stringent as the Major NSR SIP 

requirements of the Federal base 

program. It is not EPA’s obligation to 

surmise how the submitted program 

might work and if it may under certain 

circumstances be more or less stringent 

than the Federal Major NSR SIP base 

program. The State did not submit such 

a demonstration because it did not view 

the submitted Program as a substitute 

for a Major NSR SIP revision. 

Without the required customized 

Major NSR demonstration, the lack of a 

replicable methodology for the 

establishment of the emissions cap, the 

provision allowing director discretion in 

deciding whether or not to include a 

MRR condition in a Flexible Permit, the 

lack of sufficient MRR requirements, 

and the lack of enforceability, EPA lacks 

sufficient information to make a finding 

that the submitted Flexible Permits 

Program will prevent interference with 

NAAQS attainment and RFP or 

violations of any State control strategy 

that is required by the Texas NSR SIP, 

or any other applicable CAA 

requirement. See 74 FR 48480, at 48492, 

section III.D.3, and section III.A 

(response to comment 6) for further 

information. 

Therefore, the Program does not meet 

the requirements of the Act and EPA 

regulations for a substitute Major NSR 

SIP. 

In summary, EPA is disapproving the 

submitted Flexible Permits Program as 

not meeting the Major NSR SIP 

requirements. 

C. The Texas Flexible Permits Program 

Is Not Approvable as a Minor NSR SIP 

Revision 

Several commenters claim the Texas 

Flexible Permit Program explicitly 

requires permit holders to comply with 

the Federal Major NSR rules. In 

contrast, another commenter says that 

the submitted Program does not include 

adequate provisions for ensuring that 

changes that should trigger Major NSR 

are subject to technology and air quality 

analysis requirements. Commenters 

assert that the submitted Program 

prohibits circumvention of Major NSR. 

Another commenter notes to the 

contrary. We evaluated the submitted 

Program under CAA section 

110(a)(2)(C), which requires each State 

to include a Minor NSR program in its 

SIP. EPA regulations implementing the 

Act require that a plan include ‘‘legally 

enforceable procedures that enable’’ the 

permitting agency to determine whether 

a minor source will cause or contribute 

to violations of applicable portions of 

the control strategy (see 40 CFR 

51.160(a)(1)), or ‘‘interference with a 

national ambient air quality standard,’’ 

(see 40 CFR 51.160(a)(2)), and to prevent 

the source from doing so (see 40 CFR 

51.160(b)). There is, however, no 

express provision in the submitted 

Flexible Permit Program rules that 

prohibits its use for Major NSR. There 

is no express regulatory provision in the 

submitted Program requiring that it 

cannot be used to circumvent the 

requirements of Major NSR. There are 

no regulatory provisions clearly 

prohibiting circumvention of Major 

NSR. See 74 FR 48480, at 48486, and 

section III.D.1 for further information. 

Therefore, EPA is disapproving the 

submitted Program as a Minor NSR SIP 

revision because it is not clearly limited 

to Minor NSR and it does not prevent 

circumvention of the Major NSR SIP 

requirements. 

Several commenters state that the 

submitted Program does contain 

comprehensive and stringent provisions 

for MRR or assert that there is a wide 

array of additional Texas rules 

specifying MRR requirements. A 

commenter notes that there is 

significant difference in the types of 

sources that apply for a Flexible Permit; 

therefore, requiring one comprehensive 

rule could severely limit TCEQ’s ability 

to implement adequately these 

requirements. In contrast, another 

commenter notes that the submitted 

Program does not contain adequate MRR 

requirements to assure compliance with 

the emission limits in Flexible Permits. 

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On the other hand, TCEQ admits the 

submitted Program does not specify 

special conditions that ensure 

recordkeeping, reporting, testing, and 

reporting to assure compliance with the 

Flexible Permit. 

The submitted Program is an intricate 

and complex program and therefore, for 

approvability as a Major NSR SIP 

revision, there is a greater need for 

detailed MRR requirements whether to 

ensure that a project triggering the Major 

NSR SIP requirements is covered under 

Major NSR or to ensure that there are 

adequate means for ensuring 

compliance of each affected source 

under both Major and Minor NSR. 

These are needed to make the submitted 

Program enforceable and to ensure that 

the issuance of the Flexible Permits 

does not cause or contribute to a 

NAAQS violation, the Texas control 

strategy, or violate any other CAA 

requirement. The submitted Flexible 

Permit Program is generic concerning 

the types of monitoring that is required 

rather than identifying the employment 

of specific monitoring approaches, 

providing the technical specifications 

for each of the specific allowable 

monitoring systems, and requiring 

replicable procedures for the approval 

of any alternative monitoring system. It 

also lacks the replicable procedures that 

are necessary to ensure that (1) adequate 

monitoring is required that would 

accurately determine emissions under 

the Flexible Permit cap, (2) the Program 

is based upon sound science and meets 

generally acceptable scientific 

procedures for data quality and 

manipulation; and (3) the information 

generated by such system meets 

minimum legal requirements for 

admissibility in a judicial proceeding to 

enforce the Flexible Permit. 

The submitted Program therefore 

lacks provisions explicitly addressing 

the type of MRR requirements that are 

necessary to ensure that all of the 

movement of emissions between the 

emission points, units, facilities, plants, 

etc., still meet the cap for the pollutant, 

still meet the individual emissions 

limitations, and still meet any other 

applicable State or Federal requirement. 

The commenters’ assertion that there are 

additional MRR SIP requirements 

applicable to the submitted Program is 

incorrect; there are no such additional 

applicable MRR SIP requirements. 

Moreover, the submitted Program leaves 

it to the director’s discretion to require 

a MRR condition in a Flexible Permit. 

See 74 FR 48480, at 48490, and section 

III.C.5 (response to comment), III.D.3 

(response to comments 4, 5, and 9), and 

section III.A (response to comment 6) 

for further information. 

Without specialized MRR 

requirements in the submitted Program, 

it is difficult for EPA or the public to 

determine which units are covered by a 

Flexible Permit, which modifications to 

non-covered units are covered by a 

Flexible Permit, whether a covered unit 

is subject to the emission cap or an 

individual emission limitation, whether 

a unit is subject to both the cap and a 

limitation, or whether a cap or a 

limitation applies and at what time. See 

74 FR 48480, at 48492, and section 

III.D.3 for further information. 

Accordingly, the submitted Program 

lacks requirements necessary for 

enforcement and assurance of 

compliance. There are no specific upfront methodologies in the Program to 

be able to determine compliance. It fails 

to meet the enforceability requirements 

as a program or by a holder of a Flexible 

Permit, and it cannot assure compliance 

with the Program or of the affected 

source. 

Several commenters state that the 

submitted Program does contain 

comprehensive and stringent provisions 

for MRR or assert that there is a wide 

array of additional Texas rules 

specifying MRR requirements. A 

commenter notes that there is 

significant difference in the types of 

sources that apply for a Flexible Permit; 

therefore, requiring one comprehensive 

rule could severely limit TCEQ’s ability 

to implement adequately these 

requirements. In contrast, another 

commenter notes that the submitted 

Program does not contain adequate MRR 

requirements to assure compliance with 

the emission limits in Flexible Permits. 

First, the commenters point to no 

other specific SIP rules that apply to 

Flexible Permits and are detailed MRR 

requirements. Although the submitted 

Program requires the same MRR 

requirements at 30 TAC 116.711(2) and 

116.715(c)(4)–(6), as do the SIP rules 

codified in Subchapter B of Chapter 

116, the underpinnings of the submitted 

Program are so complex that even for a 

Minor NSR SIP program, there should 

be more detailed MRR requirements to 

ensure that the emission cap and/or 

individual emissions limitations in the 

issued Flexible Permits are enforceable. 

See 74 FR 48480, at 48492, and section 

III.D.3 for further information. Secondly, 

the submitted Flexible Permit Program 

is complex and intricate and therefore, 

for approvability as a NSR SIP revision, 

there is a greater need for detailed MRR 

requirements whether to ensure that a 

project triggering the Major NSR SIP 

requirements is covered under Major 

NSR or to ensure that there are adequate 

means for ensuring compliance of each 

affected entity under both Major and 

Minor NSR. See 74 FR 48480, at 48490, 

section III.A (response to comment 6), 

and section III.D.3 (response to 

comment 2) for further information. 

Moreover without specialized MRR 

requirements in the submitted Program, 

it is difficult for EPA or the public to 

determine which units are covered by a 

Flexible Permit, which modifications to 

non-covered units are covered by a 

Flexible Permit, whether a covered unit 

is subject to the emission cap or an 

individual emission limitation, whether 

a unit is subject to both the cap and a 

limitation, or whether a cap or a 

limitation applies and when it applies. 

See 74 FR 48480, at 48492, and section 

III.D.3 of this notice for further 

information. Accordingly, the Program 

lacks requirements necessary for 

enforcement and assurance of 

compliance. There are no specific upfront methodologies in the Program to 

be able to determine compliance. It fails 

to meet the enforceability requirements 

as a program or for a holder of a Flexible 

Permit, and it cannot assure compliance 

with the Program or by the holder of a 

Flexible Permit. 

Therefore, the submitted Program is 

not enforceable, as required by section 

110(a)(2)(A)–(C) of the Act for a Minor 

NSR SIP revision, and it fails to prohibit 

the issuance of a Flexible Permit that 

could interfere with attainment of a 

NAAQS or violate a control strategy. 

Because of its lack of enforceability, 

EPA lacks sufficient information to 

make a finding that the Flexible Permits 

Program is adequate to ensure that no 

construction and changes authorized 

under the Program will prevent 

interference with attainment and 

maintenance of the NAAQS or 

violations of any State control strategy 

that is required by the Texas NSR SIP. 

See 74 FR 48480, at 48492, and section 

III.D.3 for further information. 

Several commenters claim that the 

submitted Program requires the 

retention of the conditions of an existing 

PSD or Nonattainment NSR permit and 

that the TCEQ is required under the 

submitted Program to carry forward 

such terms and conditions in a Flexible 

Permit. On the other hand, there was a 

comment that the submitted Program 

contains no such requirement and that 

TCEQ regularly voids existing 

Nonattainment and PSD NSR permits 

when it issues a Flexible Permit. The 

submitted Flexible Permit Program is 

not clear and explicit that Flexible 

Permits cannot be used to eliminate or 

amend existing Nonattainment and PSD 

NSR SIP permit terms and conditions. 

The regulatory structure of the 

submitted Program does not ensure that 

existing Major NSR SIP permits’ terms 

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and conditions are retained. It lacks 

legally enforceable procedures to ensure 

that both the permit application and the 

State’s permitting processes (i.e., the 

State’s review, supporting technical 

information, the public notice and 

comment process, the record, and most 

importantly the structuring of each 

Flexible Permit) clearly identify each 

covered point of emissions; which 

existing Minor NSR permits and their 

types (e.g., Minor NSR SIP permit, 

Minor NSR SIP standard permit, Minor 

NSR SIP permit by rule); and which of 

their permitted terms, limits, conditions 

and representations in the permit 

application, are moved into the Flexible 

Permit. The regulatory structure of the 

submitted Program also is not clear 

which existing permits and their types 

and terms, limits, conditions and 

representations in the permit 

application, are not being moved into 

the Flexible Permit. Finally, there are 

not sufficient provisions in the 

submitted Program requiring the holder 

of a Flexible Permit to maintain 

recordkeeping sufficient to ensure that 

all terms and conditions of existing 

permits (including representations in 

the applications for such permits) that 

are incorporated into the Flexible 

Permit continue to be met. The 

submitted Program lacks adequate 

program requirements for the tracking of 

existing SIP permits’ Major and Minor 

NSR terms, limits and conditions, and 

whether or not such requirements are 

incorporated into a Flexible Permit. 

Minor and Major NSR permits, as well 

as Minor NSR SIP Permits by Rule and 

Standard Permits, can be incorporated 

into a Flexible Permit without any 

program requirement in place that 

ensures the SIP permits’ terms and 

conditions are included in the Flexible 

Permit. The submitted Program also 

allows holders of a Flexible Permit to 

make de facto amendments of existing 

SIP permits, including changes in the 

terms and conditions (such as 

throughput, fuel type, hours of 

operation) of Minor and Major NSR 

permits, without a preconstruction 

review by Texas. See section III.C.5 and 

section III.D.3 (response to comment 10) 

for further information. 

Therefore, the submitted Program 

does not require the retention of the 

conditions of Major NSR SIP permits 

upon the issuance of a Flexible Permit, 

as is required for a Minor NSR SIP 

revision and allows for revision of 

existing permits without adequate 

public notice and comment as required 

by 40 CFR 51.160–161. 

Several commenters claim that the 

submitted Program does contain an 

established and replicable method for 

determining an established emissions 

cap; others claim differently. The 

submitted Program does not describe in 

sufficient detail the calculation 

methodologies and underlying technical 

analyses used to determine a cap. It 

lacks specific, established, replicable 

procedures in the submitted regulations 

providing available means to determine 

independently, and for different 

scenarios, how the State will calculate 

a Flexible Permit’s cap and/or 

individual emissions limitations for a 

company’s site, plants on the site, major 

stationary sources on the site, a facility 

within a major stationary source on the 

site, facilities on the site, a group of 

units on the site, for one pollutant but 

not another, etc. The process also is not 

clear for how the emission cap is 

adjusted for the addition of new 

facilities. See 74 FR 48480, at 48491 and 

section III.D.2 for additional 

information. 

Therefore, the submitted Program 

lacks replicable procedures for the 

establishment of the emissions cap, as is 

required for a Minor NSR SIP revision. 

The submitted Program provides an 

alternative permit option but there is 

not sufficient information to determine 

whether this alternative is as stringent 

as the existing Texas Minor NSR SIP. 

Consequently, the submitted Program 

could create a risk of interference with 

NAAQS attainment, RFP, or any other 

requirement of the Act. Additionally, 

the legal test for whether an alternative 

Minor NSR permit approach can be 

approved is whether it is consistent 

with the need for a plan to include 

legally enforceable procedures to ensure 

that the State will not permit a source 

that will violate the control strategy or 

interfere with NAAQS attainment, as 

required by 40 CFR 51.160(a)–(b). 74 FR 

48480, at 48491. Therefore, we are 

disapproving the submitted Flexible 

Permits Program as a Minor NSR SIP 

revision because it does not meet 

sections 110(a)(2)(C) and 110(1) of the 

Act and 40 CFR 51.160. Without a 

replicable methodology for establishing 

the emission caps, the provision 

allowing director discretion whether or 

not to include a MRR condition in a 

Flexible Permit, the lack of sufficient 

MRR requirements and the lack of 

enforceability of the submitted Program, 

EPA lacks sufficient information to 

make a finding that the submitted 

Program, as a Minor NSR SIP program, 

will ensure protection of the NAAQS, 

and noninterference with the Texas SIP 

control strategies and RFP. See 74 FR 

48480, at 48492, and section III.A 

(response to comment 6) for further 

information. 

Based upon the above, overall, the 

submitted Program fails to include 

sufficient legally enforceable safeguards 

to ensure that the NAAQS and control 

strategies are protected. Therefore, EPA 

is disapproving the Program for not 

meeting the requirements for a Minor 

NSR SIP revision. 

D. The Texas Flexible Permits Program 

Does Not Meet the NSR Public 

Participation Requirements 

A commenter stated that any future 

changes in public participation aspects 

of the Flexible Permit Program should 

apply prospectively and should have no 

effect on existing permits. Another 

commenter stated that the submitted 

Program lacks the minimum public 

participation in 40 CFR 51.161 for a 

NSR SIP submittal and for a PSD SIP 

submittal, the public participation 

requirements in 40 CFR 51.166(q). 

Another commenter asserts that the 

submitted public participation program 

is robust and fully compliant with 

Federal requirements and in fact 

exceeds Federal requirements because 

of its broader scope and trial-type 

contested hearings process. 

The submitted rule is not severable 

from the Program because it relates to 

the public participation requirements of 

the submitted Program. We are 

disapproving the Texas Flexible Permits 

State Program, and we are disapproving 

the submitted 30 TAC 116.740, because 

this submitted rule for public 

participation is not severable from the 

submitted Program. See 74 FR 48480, at 

48490 and 48493 and section III.F for 

further information. 

E. Definition of ‘‘Account’’ 

TCEQ does not agree with EPA’s 

understanding of the term ‘‘account’’ as 

applied by TCEQ. It further states that 

it has integrated and translated the 

many Federal definitions of the ‘‘source’’ 

in an attempt to maintain consistent 

terminology between State and Federal 

programs. TCEQ comments that its 

definition of an ‘‘account’’ references the 

term ‘‘source’’ as defined in Texas law. 

According to TCEQ, within this rule, it 

interprets ‘‘sources’’ as being equivalent 

to multiple ‘‘facilities’’ (a discrete piece 

of equipment or source of air 

contaminants) under Texas Minor 

Source definitions. TCEQ further 

commented that a Flexible Permit 

cannot cover more than one major 

stationary source, as the term is used by 

EPA and TCEQ for Federal NSR 

purposes. See comment 1 under section 

III.E. To be approvable, a Flexible 

Permit cannot cover more than one 

major stationary source, as the term is 

used by EPA and TCEQ for Federal NSR 

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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 41333 

purposes. Other commenters note that 

the definition of ‘‘account’’ is tied to the 

definition of ‘‘site’’ at 30 TAC 101.1(1) 

and (87). This, in their view limits an 

account to a specific plant site. These 

commenters also point to the Title V 

rules as providing additional limitation. 

Citing 30 TAC 116.710(a)(1) and (4), 

these commenters point out that only 

one Flexible Permit may be issued at an 

account site and a Flexible Permit may 

not cover sources at more than one 

account site. In summary, these 

commenters conclude that if these rules 

are read together they provide sufficient 

safeguards against a major stationary 

source netting a significant emissions 

increase against a decrease occurring 

outside a site using a Flexible Permit. 

Another commenter comments if a 

Flexible Permit could be obtained for 

more than one site, the only reasonable 

construction of the rule would be 

‘‘* * * a facility, group of facilities, 

account or account * * *’’ but the rule 

is not so constructed because it does not 

extend a Flexible Permit to more than 

one site. After considering these 

comments EPA observes that that an 

account could include an entire 

company site, which could include 

multiple major stationary sources, the 

submitted SIP revisions may allow a 

major stationary source to net a 

significant emissions increase against a 

decrease occurring outside the 

stationary source from facilities on the 

account site that are covered under a 

Flexible Permit. An account may also 

allow an emission increase to be 

determined based on an evaluation of a 

subset of facilities within a major 

stationary source. See section III.E 

(response to comment 1) above and 74 

FR 48480, at 48489 for further 

information. The commenter’s reliance 

on the Title V rules does not identify a 

specific provision in the Texas Title V 

program that supports the commenter’s 

position. 

In summary, for the reasons stated 

above, the definition of ‘‘account’’ is not 

clearly limited to a single major 

stationary source and may include 

multiple major stationary sources, or in 

other circumstances, may include a 

subset of a major stationary source. The 

submitted Program is not approvable 

because it does not include legally 

enforceable procedures for ensuring that 

both the permit application and the 

State’s permitting processes (i.e., the 

State’s review, supporting technical 

information, the public notice and 

comment process, the record, and most 

importantly the structuring of each 

Flexible Permit in such a manner as to 

be clear) will clearly inform the public, 

other governmental agencies, or a court, 

which facilities are included under the 

permit and cap, and which are included 

under the permit but subject to 

individual limitations. See 74 FR 48480, 

at 48485 and section III.E for further 

information. 

V. Final Action 

EPA is disapproving the Texas 

Flexible Permits State Program 

submitted in a series of SIP revisions, 

identified in the Tables in section II of 

this preamble. These affected provisions 

are addressed in Texas’ November 29, 

1994 SIP revision submittal, as revised 

by severable portions in the March 13, 

1996, SIP revision submittal, and 

severable portions of the July 22, 1998 

SIP revision submittal that repealed and 

replaced portions of, as well as revised, 

the 1994 submittal and repealed and 

replaced all of the 1996 submittal; and 

as revised by severable portions in the 

October 25, 1999, September 11, 2000, 

April 12, 2001, September 4, 2002, 

October 4, 2002, and September 25, 

2003, SIP revision submittals. 

EPA is disapproving the submitted 

Texas Flexible Permits State Program as 

a Minor NSR SIP revision because it 

does not meet the Act and EPA’s 

regulations and is not consistent with 

applicable statutory and regulatory 

requirements as interpreted in EPA 

guidance and policy. We also are 

disapproving the submitted Texas 

Flexible Permits State Program as a 

substitute Major NSR SIP revision, 

because it does not meet the Act and 

EPA’s regulations and is not consistent 

with applicable statutory and regulatory 

requirements as interpreted in EPA 

guidance and policy. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

This final action has been determined 

not to be a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq., because this 

SIP disapproval under section 110 and 

subchapter I, part D of the Clean Air Act 

will not in-and-of itself create any new 

information collection burdens but 

simply disapproves certain State 

requirements for inclusion into the SIP. 

Burden is defined at 5 CFR 1320.3(b). 

Because this final action does not 

impose an information collection 

burden, the Paperwork Reduction Act 

does not apply. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. For 

purposes of assessing the impacts of 

today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. This rule will not 

have a significant impact on a 

substantial number of small entities 

because SIP approvals and disapprovals 

under section 110 and part D of the 

Clean Air Act do not create any new 

requirements but simply approve or 

disapprove requirements that the States 

are already imposing. 

Furthermore, as explained in this 

action, the submissions do not meet the 

requirements of the Act and EPA cannot 

approve the submissions. The final 

disapproval will not affect any existing 

State requirements applicable to small 

entities in the State of Texas. Federal 

disapproval of a State submittal does 

not affect its State enforceability. After 

considering the economic impacts of 

today’s rulemaking on small entities, 

and because the Federal SIP disapproval 

does not create any new requirements or 

impact a substantial number of small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

7410(a)(2). 

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41334 Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 ‘‘for State, local, or tribal 

governments or the private sector.’’ EPA 

has determined that the disapproval 

action does not include a Federal 

mandate that may result in estimated 

costs of $100 million or more to either 

State, local, or tribal governments in the 

aggregate, or to the private sector. This 

Federal action determines that preexisting requirements under State or 

local law should not be approved as part 

of the Federally approved SIP. It 

imposes no new requirements. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have Federalism 

implications.’’ ‘‘Policies that have 

Federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This action does not have Federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely disapproves certain State 

requirements for inclusion into the SIP 

and does not alter the relationship or 

the distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, Executive Order 13132 

does not apply to this action. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (59 FR 22951, November 9, 

2000), because the SIP EPA is 

disapproving would not 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. This final rule does 

not have tribal implications, as specified 

in Executive Order 13175. It will not 

have substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

This action does not involve or impose 

any requirements that affect Indian 

Tribes. Thus, Executive Order 13175 

does not apply to this action. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it is not 

an economically significant regulatory 

action based on health or safety risks 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997). This SIP 

disapproval under section 110 and 

subchapter I, part D of the Clean Air Act 

will not in-and-of itself create any new 

regulations but simply disapproves 

certain State requirements for inclusion 

into the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through the Office 

of Management and Budget, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

The EPA believes that this action is 

not subject to requirements of Section 

12(d) of NTTAA because application of 

those requirements would be 

inconsistent with the Clean Air Act. 

Today’s action does not require the 

public to perform activities conducive 

to the use of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

(February 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

action. In reviewing SIP submissions, 

EPA’s role is to approve or disapprove 

State choices, based on the criteria of 

the Clean Air Act. Accordingly, this 

action merely disapproves certain State 

requirements for inclusion into the SIP 

under section 110 and subchapter I, part 

D of the Clean Air Act and will not inand-of itself create any new 

requirements. Accordingly, it 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. 

K. Congressional Review Act 

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 rule 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). 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Rules and Regulations 41335 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 13, 

2010. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule 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, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: June 30, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7410 et seq. 

Subpart SS—Texas 

■ 2. Section 52.2273 is amended by 

adding a new paragraph (c) to read as 

follows: 

§ 52.2273 Approval status. 

* * * * * 

(c) EPA is disapproving the Texas SIP 

revision submittals under 30 TAC 

Chapter 116—Control of Air Pollution 

by Permits for New Construction or 

Modification as follows: 

(1) The following provisions under 30 

TAC Chapter 116, Subchapter A— 

Definitions: 

(i) Portion of the definition of 

‘‘modification of existing facility’’ in 30 

TAC 116.10(11)(F), submitted March 13, 

1996; repealed and readopted June 17, 

1998 and submitted July 22, 1998; 

adopted August 9, 2000 and submitted 

September 11, 2000; and revised August 

21, 2002 and submitted September 4, 

2002; 

(ii) 30 TAC 116.13—Flexible Permit 

Definitions, adopted November 16, 1994 

and submitted November 29, 1994; 

repealed and readopted June 17, 1998 

and submitted July 22, 1998; 

(2) The following provision in 30 TAC 

Chapter 116, Subchapter B—New 

Source Review Permits, Division 1— 

Permit Application: 30 TAC 

116.110(a)(3)—Applicability, adopted 

November 16, 1994 and submitted 

November 29, 1994; repealed and 

readopted June 17, 1998 and submitted 

July 22, 1998; 

(3) The following sections in 40 TAC 

Chapter 116, Subchapter G—Flexible 

Permits: 

(i) 30 TAC 116.710—Applicability— 

adopted November 16, 1994 and 

submitted November 29, 1994; revised 

June 17, 1998 and submitted July 22, 

1998; and adopted August 9, 2000 and 

September 11, 2000; 

(ii) 30 TAC 116.711—Flexible Permit 

Application—adopted November 16, 

1994 and submitted November 29, 1994; 

revised June 17, 1998 and submitted 

July 22, 1998; revised March 7, 2001 

and submitted April 12, 2001; and 

revised August 21, 2002 and submitted 

September 4, 2002; 

(iii) 30 TAC 116.714—Application 

Review Schedule—adopted November 

16, 1994 and submitted November 29, 

1994, and revised June 17, 1998 and 

submitted July 22, 1998; 

(iv) 30 TAC 116.715—General and 

Special Conditions—adopted November 

16, 1994 and submitted November 29, 

1994; revised June 17, 1998 and 

submitted July 22, 1998; adopted 

August 9, 2000 and submitted 

September 11, 2000; revised March 7, 

2001 and submitted April 12, 2001; 

revised August 21, 2002 and submitted 

September 4, 2002; and revised August 

20, 2003 and submitted September 25, 

2003; 

(v) 30 TAC 116.716—Emission Caps 

and Individual Limitations—adopted 

November 16, 1994 and submitted 

November 29, 1994; 

(vi) 30 TAC 116.717—Implementation 

Schedule for Additional Controls— 

adopted November 16, 1994 and 

submitted November 29, 1994; 

(vii) 30 TAC 116.718—Significant 

Emission Increase—adopted November 

16, 1994 and submitted November 29, 

1994; 

(viii) 30 TAC 116.720—Limitation on 

Physical and Operational Changes— 

adopted November 16, 1994 and 

submitted November 29, 1994; 

(ix) 30 TAC 116.721—Amendments 

and Alterations—adopted November 16, 

1994 and submitted November 29, 1994; 

revised June 17, 1998 and submitted 

July 22, 1998; and revision adopted 

August 9, 2000 and submitted 

September 11, 2000; 

(x) 30 TAC 116.722—Distance 

Limitations—adopted November 16, 

1994 and submitted November 29, 1994; 

and revision adopted August 9, 2000 

and submitted September 11, 2000; 

(xi) 30 TAC 116.730—Compliance 

History—adopted November 16, 1994 

and submitted November 29, 1994; and 

revised June 17, 1998 and submitted 

July 22, 1998; 

(xii) 30 TAC 116.740—Public Notice 

and Comment—adopted November 16, 

1994 and submitted November 29, 1994; 

revised June 17, 1998 and submitted 

July 22, 1998; and revision adopted 

September 2, 1999 and submitted 

October 25, 1999; 

(xiii) 30 TAC 116.750—Flexible 

Permit Fee—adopted November 16, 

1994 and submitted November 29, 1994; 

revised June 17, 1998 and submitted 

July 22, 1998; adopted August 9, 2000 

and submitted September 11, 2000; and 

revision adopted September 25, 2002 

and submitted October 4, 2002; 

(xiv) 30 TAC 116.760—Flexible 

Permit Renewal—adopted November 16, 

1994 and submitted November 29, 1994. 

[FR Doc. 2010–16776 Filed 7–14–10; 8:45 am] 

BILLING CODE 6560–50–P 

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