Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 64235 

based on a 6 hour average. Particulate 

testing shall be performed annually as 

required by paragraph (e)(3) of this 

section. This test with 2 hour test runs 

may be substituted and used to 

demonstrate compliance with the 

particulate limits in paragraph (d)(2) of 

this section. 

(2) Particulate Matter from units 4 and 

5 shall be limited to 0.015 lb/MMbtu for 

each unit as measured by the average of 

3 test runs with each run collecting a 

minimum of 60 dscf of sample gas and 

with a duration of at least 120 minutes. 

Sampling shall be performed according 

to 40 CFR Part 60 Appendices A–1 

through A–3, Methods 1 through 4 and 

Method 5 or Method 5e. The averaging 

time for any other demonstration of the 

particulate matter compliance or 

exceedence shall be based on a 6 hour 

average. 

(3) No owner or operator shall 

discharge or cause the discharge of 

emissions from the stacks of Units 1, 2, 

3, 4 or 5 into the atmosphere exhibiting 

greater than 10% opacity, excluding 

uncombined water droplets, averaged 

over any six (6) minute period. 

(4) Plantwide nitrogen oxide emission 

limits. 

(i) The plantwide nitrogen oxide 

limit, expressed as nitrogen dioxide, 

shall be 0.11 lb/MMbtu as averaged over 

a rolling 30 calendar day period. NO2

emissions for each calendar day shall be 

determined by summing the hourly 

emissions measured in pounds of NO2

for all operating units. Heat input for 

each calendar day shall be determined 

by adding together all hourly heat 

inputs, in millions of BTU, for all 

operating units. Each day the thirty day 

rolling average shall be determined by 

adding together that day and the 

preceding 29 days pounds of NO2 and 

dividing that total pounds of NO2 by the 

sum of the heat input during the same 

30 day period. The results shall be the 

30 day rolling pound per million BTU 

emissions of NOX. 

(ii) The interim NOX limit for each 

individual boiler with SCR control shall 

be as follows: 

(A) Unit 1 shall meet a rolling 30 

calendar day NOX limit of 0.21 lb/ 

MMBtu, 

(B) Unit 2 shall meet a rolling 30 

calendar day limit of 0.17 lb/MMBtu, 

(C) Unit 3 shall meet a rolling 30 

calendar day limit of 0.16 lb/MMBtu, 

(D) Units 4 and 5 shall meet a rolling 

30 calendar day limit of 0.11 lb/MMBtu, 

each. 

(iii) Testing and monitoring shall use 

the 40 CFR part 75 monitors and meet 

the 40 CFR part 75 quality assurance 

requirements. In addition to these 40 

CFR part 75 requirements, relative 

accuracy test audits shall be performed 

for both the NO2 pounds per hour 

measurement and the heat input 

measurement. These shall have relative 

accuracies of less than 20%. This testing 

shall be evaluated each time the 40 CFR 

part 75 monitors undergo relative 

accuracy testing. 

(iv) If a valid NOX pounds per hour 

or heat input is not available for any 

hour for a unit, that heat input and NOX

pounds per hour shall not be used in the 

calculation of the 30 day plant wide 

rolling average. 

(v) Upon the effective date of the 

plantwide NOX average, the owner or 

operator shall have installed CEMS and 

COMS software that complies with the 

requirements of this section. 

(j) Dust. Each owner or operator shall 

operate and maintain the existing dust 

suppression methods for controlling 

dust from the coal handling and ash 

handling and storage facilities. Within 

ninety (90) days after promulgation of 

this paragraph (j), the owner or operator 

shall develop a dust control plan and 

submit the plan to the Regional 

Administrator. The owner or operator 

shall comply with the plan once the 

plan is submitted to the Regional 

Administrator. The owner or operator 

shall amend the plan as requested or 

needed. The plan shall include a 

description of the dust suppression 

methods for controlling dust from the 

coal handling and storage facilities, ash 

handling, storage and landfilling, and 

road sweeping activities. Within 18 

months of promulgation of this 

paragraph (j) each owner or operator 

shall not emit dust with opacity greater 

than 20 percent from any crusher, 

grinding mill, screening operation, belt 

conveyor, or truck loading or unloading 

operation. 

[FR Doc. 2010–26262 Filed 10–18–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0031; FRL–9215– 

1] 

Approval and Promulgation of Air 

Quality Implementation Plans; Texas; 

Revisions to Rules and Regulations for 

Control of Air Pollution; Permitting of 

Grandfathered and Electing Electric 

Generating Facilities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

partially approve and partially 

disapprove revisions of the Texas State 

Implementation Plan (SIP) submitted by 

the Texas Commission on 

Environmental Quality (TCEQ, or 

Commission) on January 3, 2000, and 

July 31, 2002, as supplemented on 

August 5, 2009. These revisions are to 

regulations of the TCEQ which relate to 

application and permitting procedures 

for grandfathered electric generating 

facilities (EGFs). The revisions address 

a mandate by the Texas Legislature 

under Senate Bill 7 to achieve nitrogen 

oxide (NOX), sulfur dioxide (SO2) and 

particulate matter (PM) emission 

reductions from grandfathered EGFs. 

These emissions reductions will 

contribute to achieving attainment and 

help ensure attainment and continued 

maintenance of the National Ambient 

Air Quality Standards (NAAQS) for 

ozone, sulfur dioxide, and particulate 

matter in the State of Texas. As a result 

of these mandated emissions reductions, 

in accordance with section 110(l) of the 

Federal Clean Air Act, as amended (the 

Act, or CAA), partial approval of these 

revisions will not interfere with 

attainment of the NAAQS, reasonable 

further progress, or any other applicable 

requirement of the Act. EPA is 

proposing that the revisions, but for a 

severable provision, meet section 110, 

part C, and part D of the Federal Clean 

Air Act (the Act or CAA) and EPA’s 

regulations. Therefore, EPA is proposing 

to approve the revisions but for a 

severable portion that allows collateral 

emissions increases of carbon monoxide 

(CO) created by the imposition of 

technology controls to be permitted 

under the State’s Standard Permit (SP) 

for Pollution Control Projects (PCP). 

EPA is proposing to disapprove this 

severable portion concerning the 

issuance of a PCP SP for the CO 

collateral emissions increases. EPA is 

taking comments on this proposal and 

plans to follow with a final action. 

DATES: Written comments must be 

received on or before November 18, 

2010. 

ADDRESSES: Submit your comments, 

identified by Docket No. R06–OAR– 

2005–TX–0031, by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Follow the on-line instructions for 

submitting comments. 

• U.S. EPA Region 6 ‘‘Contact Us’’ 

Web site: http://epa.gov/region6/ 

r6comment.htm. Please click on ‘‘6PD 

(Multimedia)’’ and select ‘‘Air’’ before 

submitting comments. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
64236 Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 

• E-mail: Mr. Rick Barrett at: 

barrett.richard@epa.gov. Please also 

send a copy by e-mail to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section below. 

• Fax: Mr. Rick Barrett, Air Permits 

Section (6PD–R), at fax number 214– 

665–7263. 

• Mail: Mr. Rick Barrett, Air Permits 

Section (6PD–R), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

• Hand or Courier Delivery: Mr. Rick 

Barrett, Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. Such deliveries are 

accepted only between the hours of 8 

a.m. and 4 p.m. weekdays except for 

legal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket No. EPA–R06–OAR–2005–TX– 

0031. 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 that you consider to be CBI or 

otherwise protected from disclosure. 

The http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through http://www.regulations.gov, 

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal is also available 

for public inspection at the State Air 

Agency listedbelow 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. 

Rick Barrett, Air Permits Section (6PD– 

R), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

214–665–7227; fax number 214–665– 

7263; e-mail address: 

barrett.richard@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘our,’’ 

and ‘‘us’’ refers to EPA. 

Outline 

I. Texas Senate Bill 7 

II. What action is EPA proposing? 

A. January 3, 2000 Submittal 

B. July 31, 2002 Submittal 

III. Why are we proposing to partially 

approve and partially disapprove this SIP 

submittal? 

A. January 3, 2000 Submittal 

B. July 31, 2002 Submittal 

C. CAA 110(l) Analysis 

IV. Proposed Action 

V. Statutory and Executive Order Reviews 

I. Texas Senate Bill 7 

Texas Senate Bill 7 (SB 7), formed 

under the 76th Texas State Legislature, 

1999, amended the Texas Utilities Code 

(TUC), Title 2, Public Utility Regulatory 

Act, Subtitle B, Electric Utilities, and 

created a new Texas Utilities Code 

Chapter 39, ‘‘Restructuring of Electric 

Utility Industry.’’ SB 7 requires the 

TCEQ to establish a regulatory program 

implementing the statute’s mandatory 

emissions reductions for ‘‘grandfathered 

facilities’’ under the Texas Utilities Code 

section 39.264. A ‘‘grandfathered 

facility’’ is one that existed at the time 

the Legislature amended the Texas 

Clean Air Act (TCAA) in 1971. 

These facilities were not required to 

comply with (i.e., grandfathered from) 

the then new requirement to obtain 

permits for construction or 

modifications of facilities that emit air 

contaminants. Texas began permitting 

new and modified sources in 1971, and 

sources built before Texas’ permitting 

rules became effective were not required 

to obtain permits for air emissions as 

long as they were not modified as 

defined under Texas’ New Source 

Review SIP program. 

Section 39.264 of the TUC now 

requires EGFs that existed on January 1, 

1999, to obtain a permit from the 

Commission even though these sources 

were not previously required to obtain 

a permit under the TCAA, section 

382.0518(g). 

Section 39.264 of the TUC specifically 

requires owners or operators of 

grandfathered EGFs to apply for a 

permit to emit nitrogen oxides (NOX) 

and, for coal-fired grandfathered EGFs, 

sulfur dioxide (SO2) and particulate 

matter (PM) through opacity limitations. 

These applications were due on or 

before September 1, 2000. A 

grandfathered EGF that does not obtain 

a permit may not operate after May 1, 

2003, unless the Commission finds good 

cause for an extension. Section 39.264 

of the TUC requires that for the 12- 

month period beginning May 1, 2003, 

and for each 12-month period following, 

annual emissions of NOX from 

grandfathered EGFs not exceed 50% of 

the NOX emissions reported to the 

Commission for 1997. Furthermore, it 

requires that emissions of SO2 from 

coal-fired grandfathered EGFs not 

exceed 75% of the SO2 emissions 

reported to the Commission in 1997. In 

addition, TUC section 39.264(e) requires 

electric generating facility permits 

(EGFPs) for coal-fired, grandfathered 

EGFs to contain appropriate opacity 

limitations provided by the 

commission’s rules in 30 Texas 

Administrative Code (TAC) Ch.111.111, 

‘‘Requirements for Specified Sources.’’ 

As described in more detail below, the 

emission limitations may be satisfied by 

using control technology or by 

participating in the banking and trading 

of allowances under Texas’ Emission 

Banking and Trading of Allowances 

(EBTA) program. 

Overall, SB 7 mandates specific 

pollution reduction in an area, while 


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1TCEQ does not interpret ‘‘new control methods’’ 

to include the use of combustion techniques. 

Consequently, no PCP SP is required. Also, if a 

grandfathered facility chooses to impose add-on 

controls, this does not fall under the PCP SP 

requirement either. As a result, a PCP SP is required 

only for collateral emissions of CO. 

allowing individual sources flexibility 

in how they meet emissions reductions. 

As participants in the program, EGFs 

must obtain a permit allocating them a 

certain level of emissions which they 

cannot exceed. In each defined region, 

the total level of emissions is restricted, 

or capped, to a level consistent with the 

SB 7 statutory goals. The individual 

EGF, to meet its allocated emissions 

level, can either choose to install 

pollution controls, shut down 

operations, or purchase allowances from 

another source that already reduced 

emission levels below its permitted 

amount. 

To achieve SB 7’s mandate, the TCEQ 

made revisions to 30 TAC Ch.116, 

‘‘Control of Air Pollution by Permits for 

New Construction or Modification,’’ by 

establishing an allowance and 

permitting program for regulating 

grandfathered EGFs under Subchapter I. 

TCEQ concurrently adopted Chapter 

101, Subchapter H, ‘‘Emissions Banking 

and Trading,’’ that establishes a regional 

cap and trade system to distribute 

emission allowances for use by EGFs. 

The new Division 2, Chapter 101, 

Subchapter H, concerning EBTA, sets 

out the allowance system to be used to 

assist grandfathered and electing EGFs 

in meeting the emission reduction 

requirements of TUC, section 39.264. 

Together, the two rules define categories 

of EGFs that are eligible to use the 

trading system. As discussed above, the 

first category consists of grandfathered 

facilities. The second category of EGFs 

consist of currently permitted EGFs that 

are not subject to the permitting 

requirements mandated by SB 7, yet 

elect to participate in the allowance 

trading system. These are referred to as 

‘‘electing’’ EGFs and participation in the 

permitting program will allow electing 

EGFs to obtain allowances under the 

EBTA. 

The purpose of the proposed 

rulemaking by EPA is to partially 

approve and partially disapprove the 

TCEQ’s permit and emission control 

requirements for grandfathered and 

electing EGFs and related permit 

application, monitoring, reporting and 

public notice procedures. Specifically, 

the permit application requirements, 

methods for monitoring and reporting 

emissions and public notice procedures 

for grandfathered and electing EGFs are 

the subject of this proposal action. 

Please note that EPA’s action on 30 TAC 

Chapter 101, Subchapter H, Division 2, 

concerning Emissions Banking and 

Trading of Allowances, is being 

proposed in a separate notice and is 

evaluated in a separate TSD. (RME 

Docket R06–OAR–2005–TX–0012). 

The revisions to TCEQ’s 30 TAC, 

Chapter 116, concerning the permitting 

of grandfathered EGFs, will achieve the 

Legislature’s SB 7 emissions reductions 

goals. Compliance with these revisions 

will cause decreased air emissions of 

NOX, SO2, and PM, due to the shutdown 

of the source, participation in the EBTA, 

or installation of pollution controls on 

grandfathered sources that had 

previously been exempt from having to 

use pollution controls. Because the 

revisions will cause additional emission 

reductions from these sources, they will 

better serve to protect the public health 

and welfare. The revisions will also 

continue to contribute to improvement 

of air quality and attainment or 

maintenance of the federal air quality 

standards. Overall, these provisions 

serve to improve the existing SIP. 

Lastly, these provisions meet the 

requirement in 40 CFR 51.160(a) that 

each plan include legally enforceable 

procedures to determine whether the 

construction or modification of a 

facility, building, structure, or 

installation, or combination of these 

will result in (1) A violation of 

applicable portions of the control 

strategy; or (2) interference with 

attainment or maintenance of a national 

standard in the State in which the 

proposed source (or modification) is 

located or in a neighboring State. 

II. What action is EPA proposing? 

We are proposing to partially approve 

and partially disapprove the revision to 

Title 30, Chapter 116, of the TAC 

submitted by the State of Texas on 

January 3, 2000. We are also proposing 

to fully approve the revision to Title 30, 

Chapter 116, of the TAC submitted by 

the State of Texas on July 31, 2002. The 

January 3, 2000 submittal concerns 

Subchapter A: ‘‘Definitions,’’ section 

116.18; and Subchapter I: ‘‘Electric 

Generating Facility Permits,’’ sections 

116.910–914, 116.916, 116.920–922, 

116.930, and 116.931. We are proposing 

to fully approve all of this 2000 

submittal but for the severable reference 

in 30 TAC 116.911(a)(2) that, if 

approved, would allow the use of a 

Texas PCP SP for the permitting of the 

CO collateral emissions increases. We 

are proposing to disapprove this 

reference in submitted 30 TAC 

116.911(a)(2) allowing the use of a PCP 

SP for the collateral CO emissions. The 

July 31, 2002 submittal concerns 

Subchapter A: ‘‘Definitions,’’ sections 

116.10 and 116.18; and Subchapter I: 

‘‘Electric Generating Facility Permits,’’ 

sections 116.910, 116.911, 116.913, 

116.917, 116.918, 116.921, 116.926, 

116.928, and 116.930. The TCEQ 

adopted these revisions on December 

16, 1999, and May 22, 2002, 

respectively. 

Please note that in the July 31, 2002 

submittal concerning Subchapter A: 

‘‘Definitions,’’ section 116.10 is 

severable and previously acted on as 

approvable in a separate rulemaking 

(see explanation below). 

EPA intends to take final action on 

the submitted SB 7 SIP by December 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). 

A. January 3, 2000 Submittal 

In the January 3, 2000 submittal, 

TCEQ submitted new rules to Chapter 

116, including Subchapter A: 

‘‘Definitions,’’ delineating certain 

definitions of words and terms used in 

Subchapter I; and Subchapter I: ‘‘Electric 

Generating Facility Permits,’’ 

implementing the applicability 

requirements for grandfathered and 

electing electric generating facilities. 

Representative sections of Subchapter I 

include: 116.911, Electric Generating 

Facility Permit Application; 116.913, 

General and Special Conditions; 

116.914, Emissions Monitoring and 

Reporting Requirements; and 116.921, 

Notice and Comment Hearings for Initial 

Issuance. 

In 116.911, owners or operators of 

grandfathered or electing EGFs shall 

submit an application to TCEQ to 

authorize nitrogen oxides (NOX) 

emissions and, if applicable, sulfur 

dioxide (SO2) and particulate matter 

(PM) emissions before September 11, 

2000. The section requires the 

application to specify various 

requirements under 116.911(a)(1)–(4), 

(b)(1)–(2), (c)–(d). Section 116.911 

contains one subsection, 116.911(a)(2), 

‘‘Control method,’’ which references 

section 116.617, Standard Permits for 

Pollution Control Projects (PCPs). Under 

116.911(a)(2), if an EGF permit 

applicant proposes the use of new 

control methods 1 in its initial 

application, then compliance with 

particular subsections in 116.617 is 

required and TCEQ may require air 

dispersion modeling or ambient 

monitoring. The Texas PCP SP is not 

part of the Texas NSR SIP. Moreover, 

EPA has proposed to disapprove it on 

September 23, 2009. See 74 FR 48467. 

Final action was signed on August 31, 

2010, under the BCCA consent decree. 


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Furthermore, the DC Circuit Court of 

Appeals issued a court decision, New 

York v. EPA, No. 02–1387 (June 24, 

2005) that addressed the use of PCPs 

and disapproved their use for Major 

NSR requirements. In that decision, the 

court vacated the provisions of the 2002 

NSR Reform rule that specifically 

related to Clean Units and Pollution 

Control Projects. 

In response to the court’s decision, 

EPA filed a Petition for Rehearing or 

Rehearing En Banc and Request for 

Clarification on August 8, 2005. In that 

Petition, EPA requested clarification 

that the court’s ruling on PCP’s applies 

only prospectively. On December 9, 

2005, the DC Circuit ordered that ‘‘EPA’s 

request for clarification as to any 

retroactive effect of the ruling on 

Pollution Control Projects be denied.’’ 

The court also stated that because there 

was no specific retroactive application 

of this provision before the court, it was 

premature to rule on this request. Based 

on TCEQ’s Technical Supplement, EPA 

believes that any collateral emissions 

increases due to controls installed to 

limit NOX, SO2 or PM under the 

submitted 30 TAC 911(a)(2) are above 

the significance level for Prevention of 

Significant Deterioration (PSD) review 

for CO collateral emissions increases 

only, and that these collateral CO 

increases are located at only two PCP SP 

permitted plants. Therefore, in only two 

instances were there collateral CO 

emissions increases that obtained a 

Texas PCP SP rather than a Major NSR 

SIP permit. They obtained their PCP SP 

before the court decision was issued. 

Furthermore, based upon the Technical 

Supplement, EPA believes that all of the 

resultant collateral CO increases across 

the State of Texas (including those from 

the two plants) do not interfere with 

attainment or maintenance of the 

NAAQS for CO, et al., nor cause or 

contribute to increase in PSD 

increments, much less a violation of any 

NAAQS. Nevertheless, based on the 

above court decision and the PCP SP not 

being part of the Texas NSR SIP, the 

submitted subsection 116.911(a)(2) is 

not approvable, and therefore we are 

proposing to disapprove this submitted 

subsection for collateral increases of CO 

emissions. Note that the entire State of 

Texas is currently in attainment for CO. 

Section 116.913 contains general 

conditions applicable to every EGF 

permit, and allows the TCEQ to include 

special conditions in individual 

permits. Under 116.913, an EGF permit 

authorizes nitrogen oxides (NOX) 

emissions from all grandfathered or 

electing electric generating facilities 

(EGF); and sulfur dioxide (SO2) 

emissions and particulate matter 

emissions, through opacity limitations, 

for coal-fired grandfathered or electing 

EGFs. The grandfathered or electing 

EGF must comply with Chapter 101, 

Subchapter H, Division 2 of this title, 

relating to EBTA, including the 

requirement to maintain allowances in a 

compliance account. Facilities subject to 

the EBTA shall quantify and report 

emissions using the monitoring and 

reporting requirements of section 

116.914. As noted previously, EPA’s 

action on Chapter 101, Subchapter H, 

Division 2, is being proposed in a 

separate action (RME Docket R06–OAR– 

2005–TX–0012). 

Section 116.914, specifies the 

monitoring and reporting requirements 

for EGFPs. The rule authorizes the use 

of Continuous Emission Monitoring 

(CEM) under the Acid Rain Program, 

which contains monitoring 

requirements for SO2 for affected units. 

Since the acid rain program already 

requires extensive monitoring, this 

section authorizes the use of that 

monitoring for EGF’s that are subject to 

the acid rain program for compliance 

with Subchapter I. EGFs not subject to 

the Acid Rain Program would have 

three choices in monitoring: the EGF 

may choose to meet either the Part 75 

monitoring requirements, or the 

requirements of Title 40 CFR part 60; or, 

the EGF may provide an alternative 

monitoring plan that would be 

incorporated into the permit conditions. 

This alternate monitoring plan must 

meet state and federal requirements for 

approval. Monitoring and reporting 

requirements provisions related to the 

EBTA rule are set forth in 

section101.336(a), per 30 TAC Chapter 

116.914. 

Section 116.921 contains the hearing 

requirements for the initial issuance of 

EGFPs. If a hearing is requested by a 

person who may be affected by 

emissions from the grandfathered or 

electing EGF, and that request is 

reasonable, the commission will hold a 

hearing. The section requires that notice 

of hearing on a draft EGFP be published 

in the public notice section of one issue 

of a newspaper of general circulation in 

the municipality or the nearest 

municipality where the EGF is located. 

The notice must be published at least 30 

days prior to a hearing. 

The State of Texas submitted the SIP 

revision to EPA after adequate notice 

and public hearing on January 3, 2000. 

The Technical Supplement was 

submitted on August 5, 2009. See our 

Technical Support Document, 

Attachment C, for more details. 

B. July 31, 2002 Submittal 

In the July 31, 2002 submittal, Texas 

submitted new and amended rules to 

Chapter 116, which include Subchapter 

A: ‘‘Definitions,’’ delineating certain 

definitions of words and terms used in 

Subchapter I; Subchapter H: ‘‘Permits for 

Grandfathered Facilities,’’ Division 1, 

‘‘General Applicability;’’ Division 2, 

‘‘Small Business Stationary Source 

Permits,’’ ‘‘Pipeline Facilities Permits,’’ 

and ‘‘Existing Facility Permits;’’ Division 

3, ‘‘Existing Facility Flexible Permits;’’ 

and Subchapter I: ‘‘Electric Generating 

Facility Permits.’’ In addition, Texas 

submitted TAC Chapter 39, ‘‘Public 

Notice,’’ which includes Subchapter H: 

‘‘Applicability and General Provisions,’’ 

and Subchapter K: ‘‘Public Notice of Air 

Quality Applications.’’ 

EPA is acting only on Subchapter A: 

‘‘Definitions,’’ and Subchapter I: 

‘‘Electric Generating Facility Permits’’ of 

Chapter 116 from the July 31, 2002 

submittal. The above-referenced 

provisions contained in the Subchapter 

H of Ch. 116 and the Subchapter K of 

Chapter 39 are severable and not part of 

today’s proposal action. Other revisions 

to Ch.116 establish requirements and 

procedures in Subchapter H for the 

permitting of grandfathered facilities in 

accordance with 5.02–5.04 of House Bill 

(HB) 2912, 77th Legislature, 2001, and 

Section 78 of HB 2914, 77th Legislature, 

2001, which establishes an incentive 

program for the reduction of emissions 

of nitrogen oxides from certain 

grandfathered reciprocating internal 

combustion engines associated with 

pipelines. These severable submittals 

will be acted on in separate 

rulemakings. 

The submitted amendments to 

Subchapter A, Section 116.10, ‘‘General 

Definitions,’’ revise the definition of 

‘‘grandfathered facility’’ to be consistent 

with TCAA, section 382.0518(g). The 

revised definition clarifies that a 

grandfathered facility is one 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. This 

definition is severable and previously 

acted on as approvable in a separate 

rulemaking (See 75 FR 19468, April 14, 

2010). Therefore, it now is part of the 

Texas NSR SIP already. 

The submitted amendments to 

Subchapter A, Section 116.18, ‘‘Electric 

Generating Facility Permits Definitions,’’ 

add a definition for ‘‘natural gas-fired 

electric generating facility’’ for 

consistency only with the EGF permit 


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Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 64239 

requirements of HB 2912. HB 2912 

provides that a natural gas fired EGF 

includes a facility that was designed to 

burn both natural gas and fuel oil. The 

amendments also include a definition 

for ‘‘normal annual operating schedule,’’ 

to establish the normal annual operating 

schedule at an EGF site. 

The submitted amendments to 

Subchapter I, Electric Generating 

Facility Permits, implement the portions 

of TCAA, section 382.0518, which 

create a new EGF permit. Representative 

sections of Subchapter I include: 

116.911, Electric Generating Facility 

Permit Application; 116.913, General 

and Special Conditions; 116.917, 

Electric Generating Facility Permit 

Application for Certain Grandfathered 

Coal-Fired Electric Generating Facilities 

and Certain Grandfathered Facilities 

Located at Electric Generating Facility 

Sites; and 116.918, Additional General 

and Special Conditions for 

Grandfathered Coal-Fired Electric 

Generating Facilities and Certain 

Grandfathered Facilities Located at 

Electric Generating Facility Sites. 

Under amended section 116.911, 

Electric Generating Facility Permit 

Application, a new EGF permit will 

allow the owners or operators of EGFs 

who have already applied for a permit 

required by SB 7 to apply for a permit 

for: (1) Generators that do not generate 

electric energy for compensation and are 

not used more than 10% of the annual 

operating schedule; and (2) auxiliary 

fossil-fuel-fired combustion facilities 

that do not generate electric energy and 

do not emit more than 100 tpy of any 

air contaminant. The adopted changes 

will also allow coal-fired EGFs which 

were required to apply for a permit 

under SB 7 to apply for an EGF permit 

for criteria pollutants other than NOX, 

SO2, and PM as it relates to opacity. 

Section 116.913, General and Special 

Conditions, is amended to update the 

conditions of any permit issued under 

Subchapter I, including the pollutants 

or allowances that may be authorized 

for each permit, and the requirements of 

the SB 7 allowance trading program for 

the additional equipment which may be 

permitted under Subchapter I. The 

commission will issue a permit to these 

facilities. 

Section 116.917, Electric Generating 

Facility Permit Application for Certain 

Grandfathered Coal-Fired Electric 

Generating Facilities and Certain 

Grandfathered Facilities Located at 

Electric Generating Facility Sites 

outlines the application requirements 

for grandfathered coal-fired EGFs which 

choose to permit their additional criteria 

pollutants, and the auxiliary generators 

and the additional combustion 

equipment which can now be permitted 

under Subchapter I. To be consistent 

with the current review process for 

permits and applicable federal 

requirements, 116.917 requires the 

owner or operator of a grandfathered 

facility applying for an EGF permit to 

demonstrate that the facility meets 

applicable federal New Source 

Performance Standards (NSPS) and 

National Emission Standard for 

Hazardous Air Pollutants (NESHAP). If 

applicable, facilities would be required 

to comply with PSD and nonattainment 

review as specified in Chapter 116, 

Subchapter B, New Source Review 

Permits. 

Section 116.918, Additional General 

and Special Conditions for 

Grandfathered Coal-Fired Electric 

Generating Facilities and Certain 

Grandfathered Facilities Located at 

Electric Generating Facility Sites 

identifies some of the general and 

special conditions which may be 

included in any permit issued under the 

adopted section 116.917. The holders of 

a permit shall comply with all such 

conditions. General conditions include: 

Sampling requirements, equivalency of 

methods, recordkeeping, maximum 

allowable emission rates, maintenance 

of emission control, and compliance 

with rules. The holders of permits shall 

also comply with all special conditions 

contained in the permit document. 

The State of Texas submitted the SIP 

revision to EPA after adequate notice 

and public hearing on July 31, 2002. See 

our Technical Support Document, 

Attachment B, for more details. 

III. Why are we proposing to partially 

approve and partially disapprove the 

January 3, 2000 submittal and approve 

the July 31, 2002 SIP submittal? 

A. January 3, 2000 Submittal 

Regarding the January 3, 2000 

submittal, it is the intent of SB 7 that for 

the 12-month period beginning May 1, 

2003, and for each 12-month period 

following, annual emissions of NOX

from grandfathered EGFs not exceed 

50% of the NOX emissions reported to 

the Commission for 1997. Furthermore, 

it is the intent of the legislation that 

emissions of SO2 from coal-fired EGFs 

not exceed 75% of the SO2 emissions 

reported to the Commission in 1997, 

and to contain appropriate opacity 

limitations by way of permitting the 

emissions of particulate matter. These 

provisions will cause additional 

emission reductions and ensure better 

protection of public health and welfare, 

and improve the existing SIP. These 

provisions, with the exception of 

116.911(a)(2) discussed above, meet the 

requirement in 40 CFR 51.160(a) that 

each plan include legally enforceable 

procedures to determine whether the 

construction or modification of a 

facility, building, structure, or 

installation, or combination of these 

will result in (1) A violation of 

applicable portions of the control 

strategy; or (2) interference with 

attainment or maintenance of a national 

standard in the State in which the 

proposed source (or modification) is 

located or in a neighboring State. 

The revision also meets 40 CFR 

51.160(e) by identifying a type of facility 

that will be subject to review under 40 

CFR 51.160(a). In this case, TCEQ 

specifically identified grandfathered 

and electing electric generating 

facilities. See our Technical Support 

Document, Attachment A, for more 

details. 

B. July 31, 2002 Submittal 

Regarding the July 31, 2002 submittal, 

this rulemaking allows the owners or 

operators of previously grandfathered 

and electing EGFs who have already 

applied for a permit required by SB 7 to 

also obtain a permit for all air 

contaminants, certain generators and 

auxiliary fossil fuel fired combustion 

facilities The adopted changes will also 

allow coal fired EGFs which were 

required to apply for a permit under SB 

7 to apply for an EGF permit for criteria 

pollutants other than NOX, SO2, and PM 

as it relates to opacity. The permits 

issued for these facilities are expected to 

result in reduced emissions of air 

contaminants and improved compliance 

with state and federal air pollution 

control requirements. Further, these 

permits should achieve better protection 

of public health and welfare, and 

improve the existing SIP. These 

provisions meet the requirement in 40 

CFR 51.160(a) that each plan include 

legally enforceable procedures to 

determine whether the construction or 

modification of a facility, building, 

structure, or installation, or combination 

of these will result in (1) a violation of 

applicable portions of the control 

strategy; or (2) interference with 

attainment or maintenance of a national 

standard in the state in which the 

proposed source (or modification) is 

located or in a neighboring state. 

The revision also meets 40 CFR 

51.160(e) by identifying a type of facility 

that will be subject to review under 40 

CFR 51.160(a). In this case, Texas 

specifically identified grandfathered 

and electing electric generating 

facilities. See our Technical Support 

Document, Attachment B, for more 

details. 


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64240 Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 

C. CAA 110(l) Analysis 

Each revision to an implementation 

plan submitted by a State under this Act 

shall be adopted by such State after 

reasonable notice and public hearing. 

The Administrator shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (as defined 

in section 171), or any other applicable 

requirement of this Act. EPA is 

proposing to approve these revisions 

because they improve the SIP in 

accordance with Section 110 of the Act. 

The reductions achieved through the 

SB7 program are throughout the State of 

Texas and include reducing precursors 

to ozone (NOx), SO2 emissions, and PM 

emissions. The NOx emissions 

reductions in certain regions of the State 

were assumed in Texas’ ozone 

attainment demonstration plans and 

will provide benefits in reducing ozone 

concentrations in nonattainment areas 

and near nonattainment areas, as well as 

attainment areas. There are no SO2 

nonattainment areas in Texas. The only 

PM–10 nonattainment area in Texas is 

the El Paso geographic area. Any 

reductions in PM10 emissions due to 

these revisions should contribute to 

attainment of the PM10 NAAQS in that 

area. Further, EPA believes that any 

collateral emissions increases in carbon 

dioxide (CO) due to controls installed to 

limit NOx do not interfere with 

attainment or maintenance of the 

NAAQS for CO, nor cause or contribute 

to increase in any PSD increments. 

Texas is also currently in attainment for 

CO. Further, the permitting of 

grandfathered sources will benefit the 

public due to reductions of air 

contaminants emitted from affected 

EGFs, and present the opportunity for 

public participation and comment in the 

permitting procedures for formerly 

grandfathered EGFs and other 

participating EGFs. The program 

establishes requirements, procedures, 

deadlines and responsibilities for EGF 

permit applications for facilities 

formerly exempt from permit 

requirements. 

IV. Proposed Action 

EPA is proposing to partially approve 

and partially disapprove revisions to the 

Texas SIP that include 30 TAC Chapter 

116, Subchapter A: ‘‘Definitions,’’ 

section 116.18; and Subchapter I: 

‘‘Electric Generating Facility Permits,’’ 

sections 116.910–914, 116.916, 

116.920–922, 116.930, and 116.931, 

which Texas submitted on January 3, 

2000. 

EPA is proposing to approve all of the 

January 3, 2000, SIP revision submittal 

as part of the Texas NSR SIP but for 30 

TAC 116.911(a)(2). EPA is proposing to 

disapprove the submitted severable 30 

TAC 116.911(a)(2) for collateral 

emissions increases of CO that are 

allowed to be permitted under the Texas 

PCP SP. 

Further, EPA is proposing to approve 

revisions to the Texas SIP that include 

30 TAC Chapter 116, Subchapter A: 

‘‘Definitions,’’ section 116.18; and 

Subchapter I: ‘‘Electric Generating 

Facility Permits,’’ sections 116.910, 

116.911, 116.913, 116.917, 116.918, 

116.921, 116.926, 116.928, and 116.930, 

which Texas submitted on July 31, 

2002. We are proposing to take no 

action on Chapter 116, Subchapter H: 

‘‘Permits for Grandfathered Facilities,’’ 

which Texas submitted on July 31, 

2002. The State understands that EPA 

will take future action on Subchapter H 

because it is independent from 

Subchapters A and I, and action is not 

necessary at this time. 

The January 3, 2000 and July 31, 2002 

submittals address the applicability and 

permitting requirements for 

grandfathered and electing electric 

generating facilities. The revisions will 

contribute to improvement in overall air 

quality in Texas. There will be no 

increase in ozone, SO2, and PM 

concentration levels because of 

approving the revisions. We have 

evaluated the State’s submittal, 

determined that it meets the applicable 

requirements of the CAA and EPA air 

quality regulations, and is consistent 

with EPA policy. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under the Executive 

Order. 

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 

proposed 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). 

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. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant impact on a 

substantial number of small entities. 

This rule does not impose any 

requirements or create impacts on small 

entities. This proposed SIP disapproval 

under section 110 and subchapter I, part 

D of the Clean Air Act will not in-andof itself create any new requirements 

but simply disapproves certain State 

requirements for inclusion into the SIP. 

Accordingly, it affords no opportunity 

for EPA to fashion for small entities less 

burdensome compliance or reporting 

requirements or timetables or 

exemptions from all or part of the rule. 

The fact that the Clean Air Act 

prescribes that various consequences 

(e.g., higher offset requirements) may or 

will flow from this disapproval does not 

mean that EPA either can or must 

conduct a regulatory flexibility analysis 

for this action. Therefore, this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

We continue to be interested in the 

potential impacts of this proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

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 proposed 


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Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 64241 

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 action proposes to 

disapprove pre-existing requirements 

under State or local law, and 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 proposing 

to disapprove 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. 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 proposed 

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 proposed 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 OMB, 

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. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 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 

proposed 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 

proposes to disapprove 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Nitrogen 

oxides, Nonattainment, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

dioxide. 

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

Dated: October 8, 2010. 

Lawrence E. Starfield, 

Acting Regional Administrator, Region 6. 

[FR Doc. 2010–26259 Filed 10–18–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[Docket: EPA–R10–OAR–2010–0433; FRL– 

9214–8] 

Determination of Attainment for PM10: 

Eagle River PM10 Nonattainment Area, 

Alaska 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposed to determine 

that the Eagle River nonattainment area 

in Alaska attained the National Ambient 

Air Quality Standard for particulate 

matter with an aerodynamic diameter of 

less than or equal to a nominal ten 

micrometers (PM10) as of December 31, 

1994. 

DATES: Comments must be received on 

or before November 18, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2010–0433, by any of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 


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