```

[Federal Register Volume 75, Number 220 (Tuesday, November 16, 2010)]
[Rules and Regulations]
[Pages 69884-69889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28659]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-TX-0012; FRL-9226-2]

Approval and Promulgation of Implementation Plans; Texas; 
Emissions Banking and Trading of Allowances Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking a direct final action to approve portions of 
four revisions to the Texas State Implementation Plan (SIP) that create 
and amend the Emissions Banking and Trading of Allowances (EBTA) 
Program. The EBTA Program establishes a cap and trade program to reduce 
emissions of oxides of nitrogen (NOX) and sulfur dioxide 
(SO2) from participating electric generating facilities. The 
Texas Commission on Environmental Quality (TCEQ) originally submitted 
the EBTA program to EPA as a SIP revision on January 3, 2000. Since 
that time, the TCEQ has submitted SIP revisions for the EBTA Program on 
September 11, 2000; July 15, 2002; and October 24, 2006. EPA has 
determined that these changes to the Texas SIP comply with the Federal 
Clean Air Act (the Act or CAA) and EPA regulations, are consistent with 
EPA policies, and will improve air quality. This action is being taken 
under section 110 and parts C and D of the Act.

DATES: This direct final rule is effective on January 18, 2011 without 
further notice, unless EPA receives relevant adverse comment by 
December 16, 2010. If EPA receives such comment, EPA will publish a 
timely withdrawal in the Federal Register informing the public that 
this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2005-TX-0012, by one of the following methods:
    www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: Mr. Jeff Robinson at [email protected]. 
Please also cc the person listed in the FOR FURTHER INFORMATION CONTACT 
paragraph below.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     Fax: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-
R), at fax number 214-665-6762.
     Mail: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-
R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Jeff Robinson, Chief, Air 
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8:30 a.m. and 4:30 p.m. weekdays 
except for legal holidays. Special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2005-TX-0012. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
through http://www.regulations.gov or e-mail, if you believe that it is 
CBI or otherwise protected from disclosure. The http://www.regulations.gov website is an ``anonymous access'' system, which 
means that EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured 
and included as

[[Page 69885]]

part of the comment that is placed in the public docket and made 
available on the Internet. If you submit an electronic comment, EPA 
recommends that you include your name and other contact information in 
the body of your comment along with any disk or CD-ROM submitted. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters 
and any form of encryption and should be free of any defects or 
viruses. For additional information about EPA's public docket, visit 
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
the disclosure of which is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the Air 
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 
available by appointment for public inspection in the Region 6 FOIA 
Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays 
except for legal holidays. Contact the person listed in the FOR FURTHER 
INFORMATION CONTACT paragraph below to make an appointment. If 
possible, please make the appointment at least two working days in 
advance of your visit. A 15 cent per page fee will be charged for 
making photocopies of documents. On the day of the visit, please check 
in at the EPA Region 6 reception area on the seventh floor at 1445 Ross 
Avenue, Suite 700, Dallas, Texas.
    The State submittal related to this SIP revision, and which is part 
of the EPA docket, is also available for public inspection at the State 
Air Agency listed below during official business hours by appointment:
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning 
today's direct final action, please contact Ms. Adina Wiley (6PD-R), 
Air Permits Section, Environmental Protection Agency, Region 6, 1445 
Ross Avenue (6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone 
number is (214) 665-2115. Ms. Wiley can also be reached via electronic 
mail at [email protected].

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

Table of Contents

I. What action is EPA taking?
II. What did Texas submit?
III. What is the Emissions Banking and Trading of Allowances 
Program?
IV. What is EPA's evaluation of the Emissions Banking and Trading of 
Allowances Program?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What Action is EPA Taking?

    We are taking direct final action to approve portions of four 
revisions to the Texas SIP submitted by the Texas Commission on 
Environmental Quality (TCEQ) on January 3, 2000; September 11, 2000; 
July 15, 2002; and October 24, 2006. These four revisions create and 
amend the Emissions Banking and Trading of Allowances Program at 30 
Texas Administrative Code (TAC) Chapter 101, Subchapter H, Division 2. 
Specifically, we are approving through direct final action the adoption 
of 30 TAC sections 101.330-101.336, submitted on January 3, 2000; the 
revisions to 30 TAC section 101.333 submitted on September 11, 2000; 
the adoption of new 30 TAC section 101.338 submitted on July 15, 2002; 
and the revisions to 30 TAC section 101.338 and the adoption of new 30 
TAC section 101.339 submitted on October 24, 2006. Our analysis as 
presented in this rulemaking action and the accompanying Technical 
Support Document finds these revisions to the Texas SIP to be 
consistent with the CAA, 40 CFR Part 51, and EPA's Economic Incentive 
Program Guidance, ``Improving Air Quality with Economic Incentive 
Programs'' (EPA-452/R-01-001, January 2001).
    EPA's direct final approval of the EBTA program does not extend to 
the portions of the 4 SIP revisions that are not related to the EBTA 
program. Section II of this rulemaking action, titled ``What Did Texas 
Submit?'' further explains the state's SIP submittals and EPA's actions 
on the non-EBTA program provisions.
    We are publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no relevant adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if relevant adverse 
comments are received. This direct final rule will be effective on 
January 18, 2011 without further notice unless we receive relevant 
adverse comment by December 16, 2010. If we receive relevant adverse 
comments, we will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. We will 
address all public comments in a subsequent final rule based on the 
proposed rule. We will not institute a second comment period on this 
action. Any parties interested in commenting must do so now. Please 
note that if we receive adverse comment on an amendment, paragraph, or 
section of this rule and if that provision may be severed from the 
remainder of the rule, we may adopt as final those provisions of the 
rule that are not the subject of an adverse comment.

II. What did Texas submit?

    The TCEQ has submitted four SIP revisions concerning the EBTA 
Program. Below is an itemized listing of each of these submittals which 
details all sections submitted for EPA review and any rulemaking 
actions taken to date on these submissions.

January 3, 2000

     On December 16, 1999, the Texas Natural Resource 
Conservation Commission (TNRCC) (the predecessor agency to the TCEQ) 
adopted new provisions establishing the EBTA program, pursuant to 
Senate Bill 7, 76th Legislature, 1999 (SB 7). These new provisions 
created 30 TAC Chapter 101, Subchapter H, Division 2, Sections 101.330-
101.337. Governor George W. Bush submitted these provisions as a SIP 
revision in a letter dated January 3, 2000, for rule log number 99033-
116-AI.
     On December 16, 1999, TNRCC also adopted new provisions at 
30 TAC Chapter 116, Sections 116.18, 116.910-116.914, 116.916, 116.920-
116.922, 116.930, and 116.931 concerning the permitting of 
grandfathered electric generating facilities, also pursuant to Senate 
Bill 7. These provisions were also submitted to EPA on January 3, 2000, 
as part of rule project number 99033-116-AI.
     EPA is taking separate action on the provisions for the 
permitting of grandfathered electric generating facilities at 30 TAC 
Chapter 116, Sections 116.18, 116.910-116.914, 116.916, 116.920-
116.922, 116.930, and

[[Page 69886]]

116.931.\1\ See 75 FR 64235, October 19, 2010 at docket EPA-R06-OAR-
2005-TX-0031.
---------------------------------------------------------------------------

    \1\ A grandfathered facility is defined as a facility that is 
not a new facility, was constructed prior to August 30, 1971 (or no 
construction contract was executed on or before August 30, 1971 that 
specified a beginning construction date on or before February 29, 
1972) and has not been modified since August 30, 1971. EPA SIP-
approved this definition on April 14, 2010, see 75 FR 19468.
---------------------------------------------------------------------------

September 11, 2000

     On August 9, 2000, the TNRCC adopted amendments to the 
EBTA program at 30 TAC Chapter 101, Subchapter H, Division 2, Section 
101.333. Governor George W. Bush submitted these amendments as a SIP 
revision in a letter dated September 11, 2000, for rule log number 
1999-029B-116-AI.
     On August 9, 2000, TNRCC also adopted amendments to 30 TAC 
Chapter 101, Subchapter A, Section 101.27 for revised emission fees 
calculations. The TNRCC also adopted amendments to 30 TAC Chapter 116, 
Sections 116.10, 116.110, 116.116, 116.603, 116.620, 116.621, 116.710, 
116.715, 116.721, 116.722 and 116.750 pursuant to Senate Bill 766, 76th 
Legislature, 1999. All of these provisions were submitted to EPA on 
September 11, 2000, as part of rule log number 1999-029B-116-AI.
     On December 28, 2009, EPA returned the submittal of 30 TAC 
101.27 to the Texas Commission on Environmental Quality (TCEQ) as part 
of the Title V Operating Permit Program rather than a Title I program 
that is implemented through the SIP. TCEQ submitted a letter on January 
14, 2010, concurring with our assessment and withdrawing 30 TAC 101.27 
from consideration as a SIP submittal.
     On November 14, 2003, EPA approved the amendments to 30 
TAC Sections 116.110, 116.116, and 116.603. See 68 FR 64548.
     On April 14, 2010, EPA approved the amendments to 30 TAC 
Section 116.10(6) submitted on September 11, 2000. Also in this action 
EPA disapproved the amendments to 30 TAC Section 116.10(2) and took no 
action on 30 TAC Section 116.10(5)(F). See 75 FR 19468.
     On June 30, 2010, EPA issued a final disapproval of the 
Texas Flexible Permits Program, including disapproval of 30 TAC 
Sections 116.710, 116.715, 116.721, 116.722, and 116.750 submitted on 
September 11, 2000. See (75 FR 41312, July 15, 2010).
     The amendments to 30 TAC Section 116.620 remain open for 
review and action by EPA at a later date. EPA is under a consent decree 
deadline to take final action no later than October 31, 2011.
     The amendments to 30 TAC Section 116.621 were repealed by 
the TCEQ on March 1, 2006, as part of Rule Project Number 2003-066-116-
PR. No further action is needed by EPA on this section.

July 15, 2002

     On March 13, 2002, the TNRCC adopted new provisions in the 
EBTA Program for emission reductions achieved outside the United States 
at 30 TAC Chapter 101, Subchapter H, Division 2, Section 101.338. The 
Chairman of the TNRCC, Mr. Robert J. Huston, submitted this section as 
a SIP revision in a letter dated July 15, 2002, for rule project number 
2001-063-101-AI.
     On March 13, 2002, the TNRCC also adopted revisions to the 
Emission Credit Banking and Trading Program (referred to elsewhere in 
this document as the Emission Reduction Credit (ERC) Program) at 30 TAC 
Chapter 101, Subchapter H, Division 1, Section 101.302; the Mass 
Emissions Cap and Trade (MECT) Program at 30 TAC Chapter 101, 
Subchapter H, Division 3, Section 101.357, and the Discrete Emission 
Credit Banking and Trading Program (referred to elsewhere in this 
document as the Discrete Emission Reduction Credit (DERC) Program) at 
30 TAC Chapter 101, Subchapter H, Division 4, Section 101.372. The 
TNRCC also adopted new 30 TAC 117.571. All of these provisions were 
also submitted to EPA on July 15, 2002, as part of rule project number 
2001-063-101-AI.
     EPA fully approved the amendments to section 101.302 on 
September 6, 2006. See 71 FR 52698.
     EPA conditionally approved the amendments to section 
101.372 on September 6, 2006. See 71 FR 52703. The conditional approval 
of the DERC Program was converted to a full approval on May 18, 2010. 
See 75 FR 27644.
     EPA has taken no action to date on new section 101.357. 
This section is severable from our analysis and action on the EBTA 
program because the MECT Program is a separate, stand-alone cap and 
trade program specific to the Houston-Galveston-Brazoria (HGB) ozone 
nonattainment area. This action remains open for review and action at a 
later date by EPA.
     EPA has taken no action to date on new section 117.571. 
This section is severable from our analysis and action on the EBTA 
program because section 117.571 establishes provisions to allow the 
substitution of emissions reductions achieved under the Texas Emission 
Reduction Program (TERP) for NOX emission reductions 
required in the HGB and Dallas/Fort Worth ozone nonattainment areas. 
This section remains open for review and action at a later date by EPA.

October 24, 2006

     On October 4, 2006, the Texas Commission on Environmental 
Quality (TCEQ) adopted the repeal of 30 TAC Section 101.338 and new 30 
TAC Sections 101.338 and 101.339. The Chairman of the TCEQ, Ms. 
Kathleen Hartnett White, submitted these provisions as a SIP revision 
in a letter dated October 24, 2006, for rule project number 2005-054-
101-PR. In this SIP submittal cover letter, Chairman White requested 
that EPA take no federal action on 30 TAC Section 101.337 submitted on 
January 3, 2000; section 101.337 establishes requirements unique to the 
El Paso Region which will be state only requirements.
     On October 4, 2006, TCEQ also adopted revisions to the ERC 
program at 30 TAC Chapter 101, Sections 101.302, 101.305 and 101.306 to 
address the mandates of Texas Senate Bill 784 and the conditions of 
EPA's final conditional approval of the DERC Program, September 6, 
2006. See 71 FR 52703. Also at this time, the TCEQ adopted revisions to 
the DERC Program at 30 TAC Chapter 101, Sections 101.372, 101.373, 
101.375, 101.376, and 101.378 to address the mandates of Texas SB 784 
and the conditions of EPA's final conditional approval of the DERC 
Program, September 6, 2006. All of these revisions were submitted to 
EPA on October 24, 2006, as part of rule project number 2005-054-101-
PR.
     On April 30, 2010, EPA fully approved the amendments to 
the ERC and DERC Programs at 30 TAC Chapter 101, Sections 101.302, 
101.305, 101.306, 101.372, 101.373, 101.375, 101.376, and 101.378. See 
75 FR 27644 and 75 FR 27647, May 18, 2010.

III. What is the Emissions Banking and Trading of Allowances Program?

Why did Texas develop the EBTA Program?

    The TCEQ created the EBTA Program to implement the requirements of 
Texas SB 7, from the 76th Legislature, 1999, which deregulated the 
electric utility industry. Under SB 7, TCEQ was required to develop a 
permitting system and a mass cap and trade system to distribute 
allowances for use by electric generating facilities. The EBTA program 
is designed to achieve a 50 percent reduction in NOX 
emissions and a 25 percent reduction in SO2 emissions,

[[Page 69887]]

both based on 1997 heat input data, from participating sources. The 
permitting system required under SB 7 and established at 30 TAC Chapter 
116, Subchapter I, is being evaluated in a separate rulemaking action 
(See 75 FR 64235, October 19, 2010 at docket EPA-R06-OAR-2005-TX-0031).

How does the EBTA Program work?

    The EBTA Program is similar to the source specific emissions cap as 
described in EPA's Economic Incentive Program (EIP) Guidance, 
``Improving Air Quality with Economic Incentive Programs'' (EPA-452/R-
01-001, January 2001) (EIP Guidance). A source specific emissions cap 
(SSEC) allows a limited group of sources that are subject to a rate-
based emission limit to meet that requirement by accepting a mass-based 
emission limit, or cap, rather than complying directly with a rate-
based limit. Some attributes that characterize a successful SSEC 
include a well-defined group of sources, little potential for emissions 
to shift from included sources to excluded sources, and a relatively 
low level of uncertainty associated with the program. In the EBTA 
Program, the participating sources are limited to grandfathered and 
electing electric generating facilities (EGFs). An electing EGF is a 
facility permitted under 30 TAC Chapter 116, Subchapter B that elects 
to comply with the permitting program established in Texas SB 7 at 30 
TAC Chapter 116, Subchapter I.
    The EBTA divides Texas into three regions--East Texas, West Texas, 
and El Paso. The East Texas Region includes all counties traversed by 
or east of Interstate Highway 35 north of San Antonio or traversed by 
or east of Highway 37 south of San Antonio, also including Bexar, 
Bosque, Coryell, Hood, Parker, Somervell, and Wise Counties. The West 
Texas Region includes all counties not contained in the East Texas or 
El Paso Regions. The El Paso Region is defined at 30 TAC section 
101.330(13) as all of El Paso County, Ciudad Juarez, Mexico, and 
Sunland Park, New Mexico. Note that on October 24, 2006, TCEQ requested 
no Federal action on the portions of the EBTA that pertain to the El 
Paso region.
    To achieve the reductions of 50 percent NOX emissions 
and 25 percent SO2 emissions, the TCEQ established emission 
caps for each region. The caps consist of allowances allocated by the 
TCEQ to each facility in the EBTA initially by January 1, 2000, for 
grandfathered EGFs and by January 1, 2001, for electing EGFs. Beginning 
in 2004, the TCEQ will allocate the allowances to all facilities in the 
EBTA by May 1 of each year. The TCEQ will deposit the same amount of 
allowances into each grandfathered or electing EGF's compliance account 
at the beginning of each control period, with the exception that the 
allocation for electing EGFs may be adjusted to reflect new state or 
Federal requirements. An allowance is the authorization to emit one ton 
of NOX or SO2 during a control period and does 
not constitute a security or property right. All allowances will be 
allocated, transferred, or used as whole allowances. The control period 
for the EBTA is the 12-month period beginning May 1 of each year and 
ending April 30 of the following year, with the initial control period 
beginning May 1, 2003.
    A facility can choose to operate at, above, or below its allowance 
budget. A source operating below its allowance budget can bank or trade 
its allowances for use in subsequent control periods. A source 
operating above its allowance budget must purchase excess allowances 
from another source to demonstrate compliance with the cap. Beginning 
June 1, 2004, and no later than June 1 following the end of every 
control period, each facility must hold a quantity of allowances in its 
compliance account that is equal to or greater than the total emissions 
of air contaminant emitted during the control period just ending. If a 
facility's actual emissions of air contaminant during a control period 
exceed the amount of allowances held in the compliance account on June 
1, allowances for the next control period will be reduced by an amount 
equal to the emissions exceeding the allowances in the compliance 
account. This deduction does not preclude any additional enforcement 
action by the TCEQ.
    Facilities subject to the EBTA must submit a report to the TCEQ by 
June 30 of each year following the completed control period. This 
report must include the amount of emissions of each allocated air 
contaminant and a summary of all final trades for the preceding control 
period. Additionally, facilities subject to the EBTA will quantify and 
report emissions using the monitoring and reporting requirements of 30 
TAC 116.914 (See 75 FR 64235, October 19, 2010 at docket EPA-R06-OAR-
2005-TX-0031).
    A grandfathered or electing EGF may use emission reductions 
achieved from Mexico in lieu of allowances for compliance with the 
EBTA. The emission reductions may be criteria pollutants or precursors 
of criteria pollutants, with the exception of lead emissions. The 
reductions may be used in lieu of the same pollutant requirement (i.e., 
NOX reductions from Mexico are substituted for 
NOX requirements in Texas). Or, the reductions of criteria 
pollutants or their precursors may be substituted for emission 
reduction requirements for other criteria pollutants (i.e., reductions 
in CO emissions could be substituted for NOX or 
SO2 emission requirements). In the event the Mexican 
reduction is being substituted for a criteria pollutant requirement (CO 
for NOX or SO2), the substitution must result in 
greater health benefits and must be of equal or greater benefit to the 
overall air quality of the area; or the substitution occurs between 
criteria pollutants for which the area has been designated 
nonattainment. Generally, the use of reductions from outside the United 
States must be approved by the TCEQ executive director and the EPA, and 
the user of the emission reduction must:
    1. Demonstrate to the TCEQ executive director and to the EPA that 
the reduction is real, permanent, enforceable, quantifiable and surplus 
to any applicable Mexican, federal, state, or local law;
    2. Demonstrate that the use of the reduction does not cause 
localized health impacts, as determined by the TCEQ executive director 
and EPA;
    3. Submit all supporting information for calculations and modeling, 
and any additional information requested by the TCEQ executive director 
and EPA; and
    4. Be located within 100 kilometers of the Texas-Mexico border.
    Sources subject to the EBTA submit an annual compliance report to 
the TCEQ by June 30 of each year. This report details the amount of 
emissions of each allocated air contaminant and a summary of all final 
trades for the preceding control period. Through review of these 
reports, the TCEQ is able to determine which facilities are in 
compliance with the program.
    The TCEQ executive director will also develop a report no later 
than September 30th following each control period that includes the 
number of allowances allocated to each compliance account; the total 
number of allowances allocated under the EBTA program; the number of 
actual NOX and SO2 allowances subtracted from 
each compliance account based on the actual NOX and 
SO2 emissions from the site; and a summary of all trades 
completed under the EBTA program.
    Additionally, the TCEQ executive director will audit the program no 
later than three years after the effective date of the EBTA program, 
and every three years thereafter. The audit will evaluate the impact of 
the program on the state's ozone attainment demonstrations, the

[[Page 69888]]

availability and cost of allowances, compliance by the participants, 
and any other elements the executive director deems necessary. If any 
problems are identified, the executive director will recommend 
remedies, including the discontinuation of trading in whole or part. 
This audit will be submitted to the EPA and made available for public 
inspection within six months after the audit begins.

IV. What is EPA's evaluation of the Emissions Banking and Trading of 
Allowances Program?

    Generally, SIP rules must be enforceable and must not relax 
existing requirements. See Clean Air Act sections 110(a), 110(l), and 
193. EPA's review of the January 3, 2000; September 11, 2000; July 15, 
2002; and October 24, 2006 SIP revisions finds that all 4 SIP 
submittals are consistent with the requirements at 40 CFR part 51 and 
are considered complete SIP submittals in accordance with 40 CFR part 
51, Appendix V. This detailed analysis is available in the TSD for this 
rulemaking. Additionally, we reviewed the EBTA program with respect to 
EPA's EIP Guidance ``Improving Air Quality with Economic Incentive 
Programs'' (EPA-452/R-01-001, January 2001) (EIP Guidance). Our 
analysis, as detailed in the TSD accompanying this rulemaking, finds 
that the EBTA program is consistent with the criteria for discretionary 
source specific emissions cap programs. The EBTA program will provide 
compliance flexibility to participating EGFs and achieve the 
programmatic emission reduction goals of Texas SB 7. Further, EPA finds 
that the EBTA program is consistent with section 110(l) of the CAA and 
will not interfere with any applicable requirements concerning 
attainment and reasonable further progress towards attainment of the 
NAAQS or any other applicable requirements of the Act.

IV. Final Action

    EPA is taking direct final action to approve portions of four 
revisions to the Texas SIP submitted on January 3, 2000; September 11, 
2000; July 15, 2002; and October 24, 2006. Specifically, EPA is 
approving 30 TAC Chapter 101, Subchapter H, Division 2, Sections 
101.330-101.336, submitted on January 3, 2000; the revisions to 30 TAC 
section 101.333 submitted on September 11, 2000; the adoption of new 30 
TAC section 101.338 submitted on July 15, 2002; and the revisions to 30 
TAC section 101.338 and the adoption of new 30 TAC section 101.339 
submitted on October 24, 2006.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
action and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication of the rule in the Federal Register. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 18, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: November 5, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, EPA Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart SS--Texas

0
2. The table in Sec.  52.2270(c) entitled ``EPA-Approved Regulations in 
the Texas SIP'' is amended by adding a new centered heading titled 
``Division 2--Emissions Banking and Trading of Allowances'' immediately 
after the entry

[[Page 69889]]

for Section 101.311 under Chapter 101--General Air Quality Rules, 
Subchapter H--Emissions Banking and Trading, followed by new entries 
for sections 101.330, 101.331, 101.332, 101.333, 101.334, 101.335, 
101.336, 101.338 and 101.339.
    The additions read as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                                        EPA-Approved Regulations in the Texas SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           State approval/
          State citation                Title/subject      submittal date             EPA approval date                         Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Chapter 101--General Air Quality Rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Subchapter H--Emissions Banking and Trading
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Section 101.311...................  Program Audits and           11/10/04  9/6/06, 71 FR 52698...................
                                     Reports.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Division 2--Emissions Banking and Trading of Allowances
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 101.330...................  Definitions..........      12/16/1999  November 16, 2010 [Insert FR page
                                                                            number where document begins].
Section 101.331...................  Applicability........      12/16/1999  November 16, 2010 [Insert FR page
                                                                            number where document begins].
Section 101.332...................  General Provisions...      12/16/1999  November 16, 2010 [Insert FR page
                                                                            number where document begins].
Section 101.333...................  Allocation of              08/09/2000  November 16, 2010 [Insert FR page
                                     Allowances.                            number where document begins].
Section 101.334...................  Allowance Deductions.      12/16/1999  November 16, 2010 [Insert FR page
                                                                            number where document begins].
Section 101.335...................  Allowance Banking and      12/16/1999  November 16, 2010 [Insert FR page
                                     Trading.                               number where document begins].
Section 101.336...................  Emission Monitoring,       12/16/1999  November 16, 2010 [Insert FR page
                                     Compliance                             number where document begins].
                                     Demonstration, and
                                     Reporting.
Section 101.338...................  Emission Reductions        10/04/2006  November 16, 2010 [Insert FR page
                                     Achieved Outside the                   number where document begins].
                                     United States.
Section 101.339...................  Program Audits and         10/04/2006  November 16, 2010 [Insert FR page
                                     Reports.                               number where document begins].
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 2010-28659 Filed 11-15-10; 8:45 am]
BILLING CODE 6560-50-P
```