Federal Register / Vol. 79, No. 32 / Tuesday, February 18, 2014 / Proposed Rules 9123 

§ 961.8 Hearing Official authority and 

responsibilities. 

The Hearing Official’s authority 

includes, but is not limited to, the 

following: 

(a) Ruling on all motions or requests 

by the parties. 

(b) Issuing notices, orders or 

memoranda to the parties concerning 

the hearing proceedings. 

(c) Conducting telephone conferences 

with the parties to expedite the 

proceedings. The Hearing Official will 

prepare a Memorandum of Telephone 

Conference, which shall be transmitted 

to both parties and which serves as the 

official record of that conference. 

(d) Determining whether an oral 

hearing shall be conducted, the type of 

oral hearing to be held, and setting the 

place, date, and time for such hearing. 

(e) Administering oaths or 

affirmations to witnesses. 

(f) Conducting the hearing in a 

manner to maintain discipline and 

decorum while assuring that relevant, 

reliable and probative evidence is 

elicited on the issues in dispute, but 

irrelevant, immaterial or repetitious 

evidence is excluded. The Hearing 

Official in his or her discretion may 

examine witnesses to ensure that a 

satisfactory record is developed. 

(g) Establishing the record in the case. 

The weight to be attached to any 

evidence of record will rest within the 

discretion of the Hearing Official. 

Except as the Hearing Official may 

otherwise order, no proof shall be 

received in evidence after completion of 

an oral hearing or, in cases submitted on 

the written record, after notification by 

the Hearing Official that the record is 

closed. The Hearing Official may require 

either party, with appropriate notice to 

the other party, to submit additional 

evidence on any relevant matter; 

(h) Granting reasonable time 

extensions or other relief for good cause 

shown in the Hearing Official’s sole 

discretion. 

(i) Issuing the final decision. The 

decision must include the 

determination of the amount and 

validity of the alleged debt and, where 

applicable, the repayment schedule. 

§ 961.9 Opportunity for oral hearing. 

An oral hearing shall be conducted in 

the sole discretion of the Hearing 

Official. An oral hearing may be 

conducted in-person, by telephone, by 

video conference, or other appropriate 

means as directed by the Hearing 

Official. When the Hearing Official 

determines that an oral hearing shall not 

be conducted, the decision shall be 

based solely on the written submissions. 

The Hearing Official shall arrange for 

the recording and transcription of an 

oral hearing, which shall serve as the 

official record of the hearing. In the 

event of an unexcused absence, the 

hearing may proceed without the 

participation of the absent party. 

§ 961.10 Effect of Hearing Official’s 

decision; motion for reconsideration. 

(a) After the receipt of written 

submissions or after the conclusion of 

the hearing and the receipt of posthearing briefs, if any, the Hearing 

Official shall issue a written decision, 

which shall include the findings of fact 

and conclusions of law, relied upon. 

(b) The Hearing Official shall send 

each party a copy of the decision. The 

Hearing Official’s decision shall be the 

final administrative determination on 

the employee’s debt or repayment 

schedule. No reconsideration of the 

decision will be allowed unless a 

motion for reconsideration is filed 

within 10 days from receipt of the 

decision and shows good cause for 

reconsideration. Reconsideration will be 

allowed only in the discretion of the 

Hearing Official. A motion for 

reconsideration by the employee will 

not operate to stay a collection action 

authorized by the Hearing Official’s 

decision. 

§ 961.11 Consequences for failure to 

comply with rules. 

(a) The Hearing Official may 

determine that the employee has 

abandoned the right to a hearing, and 

that administrative offset may be 

initiated if the employee files his or her 

petition late without good cause; or files 

a withdrawal of the employee’s petition 

for a hearing. 

(b) The Hearing Official may 

determine that the administrative offset 

may not be initiated if the Postal Service 

fails to file the answer or files the 

answer late without good cause; or files 

a withdrawal of the debt determination 

at issue. 

(c) If a party fails to comply with 

these Rules or the Hearing Official’s 

orders, the Hearing Official may take 

such action as he or she deems 

reasonable and proper under the 

circumstances, including dismissing or 

granting the petition as appropriate. 

§ 961.12 Ex parte communications. 

Ex parte communications are not 

allowed between a party and the 

Hearing Official or the Official’s staff. Ex 

parte communication means an oral or 

written communication, not on the 

public record, with one party only with 

respect to which reasonable prior notice 

to all parties is not given, but it shall not 

include requests for status reports or 

procedural matters. A memorandum of 

any communication between the 

Hearing Official and a party will be 

transmitted to both parties. 

Stanley F. Mires, 

Attorney, Legal Policy & Legislative Advice. 

[FR Doc. 2014–03368 Filed 2–14–14; 8:45 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2013–0808; FRL–9906–62– 

Region-6] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Withdrawal of Federal Implementation 

Plan; Texas; Prevention of Significant 

Deterioration; Greenhouse Gas 

Tailoring Rule Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

portions of two revisions to the Texas 

State Implementation Plan (SIP) 

submitted by the Texas Commission on 

Environmental Quality (TCEQ) to EPA 

on October 5, 2010, and December 2, 

2013. Together, these two SIP submittals 

revise the Texas Prevention of 

Significant Deterioration (PSD) Program 

to provide for the regulation of 

greenhouse gas (GHG) emissions and 

clarify the applicability of Best 

Available Control Technology (BACT) 

for all PSD permit applications. The 

December 2, 2013, submittal is a request 

for parallel processing of revisions 

proposed by the TCEQ on October 23, 

2013. The December 2, 2013, submittal 

includes proposed revisions to the 

Texas SIP to provide the State of Texas 

with the express authority to regulate 

GHG emissions, issue PSD permits 

governing GHG emissions, establish 

appropriate emission thresholds for 

determining which new stationary 

sources and modifications to existing 

stationary sources become subject to 

Texas’s PSD permitting requirements for 

their GHG emissions, and revises 

several Minor New Source Review 

(NSR) provisions to specify that Minor 

NSR permit mechanisms cannot be used 

for authorizing GHG emissions. The 

December 2, 2013, SIP revision also 

defers until July 21, 2014, application of 

the PSD permitting requirements to 

biogenic carbon dioxide emissions from 

bioenergy and other biogenic stationary 

sources. The October 5, 2010, submittal 


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revises the Texas SIP to clarify that all 

PSD permits must undergo BACT 

review consistent with the requirements 

in the Federal and Texas PSD programs. 

EPA is proposing to approve portions of 

the October 5, 2010, and December 2, 

2013, SIP revisions to the Texas SIP and 

NSR permitting program as consistent 

with federal requirements for PSD 

permitting of GHG emissions. EPA is 

proposing to sever and take no action on 

the portion of the October 5, 2010, SIP 

revision which pertains to the Texas 

Minor NSR program for Qualified 

Facilities. EPA is also proposing to sever 

and take no action on the portion of the 

December 2, 2013, SIP revision that 

relates to the provisions of EPA’s July 

20, 2011, ‘‘Deferral for CO2 Emissions 

from Bioenergy and other Biogenic 

Sources Under the Prevention of 

Significant Deterioration (PSD) and Title 

V Programs’’ (Biomass Deferral Rule), as 

the DC Circuit Court of Appeals issued 

an order to vacate that rule on July 13, 

2013. EPA is also proposing to rescind 

the Federal Implementation Plan (FIP) 

for Texas, with three limited 

possibilities for retained authority, 

which was put in place to ensure the 

availability of a permitting authority for 

GHG permitting in Texas until final 

approval of the Texas SIP PSD GHG 

program. EPA is proposing this action 

under section 110 and part C of the 

Clean Air Act (CAA). 

DATES: Comments must be received on 

or before March 20, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2013–0808 by one of the following 

methods: 

• www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• EMail: Ms. Adina Wiley at 

wiley.adina@epa.gov. 

• Mail or Delivery: Ms. Adina Wiley, 

Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2013– 

0808. 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 

email, if you believe that it is CBI or 

otherwise protected from disclosure. 

The http://www.regulations.gov Web 

site 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 email 

comment directly to EPA without going 

through http://www.regulations.gov, 

your email 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 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: The index to the docket for 

this action is available electronically at 

www.regulations.gov and in hard copy 

at EPA Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available at 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment with the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253. 

FOR FURTHER INFORMATION 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 

wiley.adina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Table of Contents 

I. Background for Our Proposed Action 

A. History of EPA’s GHG-Related Actions 

B. EPA’s Biomass Deferral Rule 

C. EPA’s Tailoring Rule Step 3 

II. Summary of State Submittals 

A. October 5, 2010 

B. December 2, 2013 

III. EPA’s Analysis of the State Submittals 

A. Analysis of the October 5, 2010 State 

Submittal 

B. Analysis of the December 2, 2013 State 

Submittal 

i. Analysis of the Proposed Revisions to the 

Texas PSD Program 

ii. Analysis of the Proposed Non-PSD 

Revisions to the Texas SIP 

IV. EPA’s Analysis for Rescinding the Texas 

PSD FIP 

A. Evaluation of Rescission of the GHG 

PSD FIP at 40 CFR 52.2305(a), (b) and (c) 

B. Transition Process upon Rescission of 

the GHG PSD FIP for Pending GHG PSD 

Permit Applications and Issued GHG 

PSD Permits 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background for Our Proposed Action 

The CAA at section 110(a)(2)(C) 

requires states to develop and submit to 

EPA for approval into the SIP, 

preconstruction review and permitting 

programs applicable to certain new and 

modified stationary sources of air 

pollutants for attainment and 

nonattainment areas that cover both 

major and minor new sources and 

modifications, collectively referred to as 

the NSR SIP. The CAA NSR SIP 

program is composed of three separate 

programs: PSD, Nonattainment NSR 

(NNSR), and Minor NSR. PSD is 

established in part C of title I of the 

CAA and applies in areas that meet the 

National Ambient Air Quality Standards 

(NAAQS)—‘‘attainment areas’’—as well 

as areas where there is insufficient 

information to determine if the area 

meets the NAAQS—‘‘unclassifiable 

areas.’’ The NNSR SIP program is 

established in part D of title I of the 

CAA and applies in areas that are not in 

attainment of the NAAQS— 

‘‘nonattainment areas.’’ The Minor NSR 

SIP program addresses construction or 

modification activities that do not emit, 

or have the potential to emit, beyond 

certain major source thresholds and 

thus do not qualify as ‘‘major’’ and 

applies regardless of the designation of 

the area in which a source is located. 

EPA regulations governing the criteria 

that states must satisfy for EPA approval 

of the NSR programs as part of the SIP 

are contained in 40 CFR sections 

51.160—51.166. 

Texas submitted on October 5, 2010, 

and December 2, 2013, a collection of 

regulations for approval by EPA into the 

Texas SIP, including some regulations 

specific to the Texas PSD permitting 

program to clarify the applicability of 

BACT for all PSD permit applications 

and to provide for regulation of GHG 

emissions through the Texas PSD 

program. The October 5, 2010, submittal 

included revisions to the Permit 

Application requirements for the Texas 

NSR program at 30 TAC Section 116.111 


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1 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 2 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

3 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

4Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule.’’ 75 

FR 31514 (June 3, 2010). 

5 ‘‘Action To Ensure Authority To Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call,’’ 75 

FR 77698 (Dec. 13, 2010). Specifically, by notice 

dated December 13, 2010, EPA finalized a ‘‘SIP 

Call’’ that would require those states with SIPs that 

have approved PSD programs but do not authorize 

PSD permitting for GHGs to submit a SIP revision 

providing such authority. 

6 ‘‘Action To Ensure Authority To Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Failure To Submit State Implementation 

Plan Revisions Required for Greenhouse Gases,’’ 75 

FR 81874 (December 29, 2010). 

7 ‘‘Action To Ensure Authority To Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan,’’ 75 FR 82246 

(December 30, 2010). 

to clarify that federal BACT will be 

applied to all PSD permit applications, 

in addition to the application of Texas 

BACT process as required by the Texas 

Clean Air Act. The October 5, 2010, 

submittal also included revisions to the 

Texas Minor NSR Qualified Facilities 

Program, which is severable from 

today’s proposed action on the Texas 

PSD program. The December 2, 2013, 

submittal includes revisions to the 

Texas SIP and the Texas NSR program 

to (1) establish that the State of Texas 

has the express authority to regulate 

GHG emissions, (2) provide for the 

issuance of PSD permits governing GHG 

emissions, (3) establish appropriate 

emission thresholds for determining 

which new stationary sources and 

modification projects become subject to 

Texas’s PSD permitting requirements for 

their GHG emissions consistent with the 

‘‘PSD and Title V Greenhouse Gas 

Tailoring Final Rule’’ (75 FR 31514) 

hereafter referred to as the ‘‘Tailoring 

Rule’’, and (4) make revisions to the 

Texas Minor NSR program to limit the 

scope of GHG permitting to the Texas 

PSD program. The December 2, 2013, 

submittal also included provisions to 

adopt and implement EPA’s July 20, 

2011, GHG Biomass Deferral. 

We have evaluated the SIP 

submissions for whether they meet the 

CAA and 40 CFR Part 51, and are 

consistent with EPA’s interpretation of 

the relevant provisions. Today’s 

proposed action and the accompanying 

Technical Support Document (TSD) 

present our rationale for proposing 

approval of these regulations as meeting 

the minimum federal requirements for 

the adoption and implementation of the 

PSD SIP permitting programs. Note that 

Texas is currently subject to the PSD 

Federal Implementation Plan (FIP) at 40 

CFR 52.2305. See 76 FR 25178, May 3, 

2011. We are also proposing to rescind 

the PSD FIP for Texas when we finalize 

today’s proposed action. EPA is 

proposing to sever and take no action on 

the portions of the October 5, 2010, 

submittal that pertain to the Texas 

Minor NSR Qualified Facilities Program. 

EPA is proposing to sever and take no 

action on the portions of the December 

2, 2013, submittal that relate to the 

provisions of EPA’s Biomass Deferral for 

the reasons stated above. 

A. History of EPA’s GHG-Related 

Actions 

This section summarizes EPA’s recent 

GHG-related actions. Please see the 

preambles for the identified GHGrelated rulemakings for more 

information. 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHGs that, although for the most part 

are distinct from one another, establish 

the overall framework for today’s 

proposed action on the Texas SIP. Four 

of these actions include, as they are 

commonly called, the ‘‘Endangerment 

Finding’’ and ‘‘Cause or Contribute 

Finding,’’ which EPA issued in a single 

final action,1 the ‘‘Johnson Memo 

Reconsideration,’’ 2 the ‘‘Light-Duty 

Vehicle Rule,’’ 3 and the ‘‘Tailoring 

Rule.’’ 4 Taken together and in 

conjunction with the CAA, these actions 

established regulatory requirements for 

GHGs emitted from new motor vehicles 

and new motor vehicle engines; 

determined that such regulations, when 

they took effect on January 2, 2011, 

subjected GHGs emitted from stationary 

sources to PSD requirements; and 

limited the applicability of PSD 

requirements to GHG sources on a 

phased-in basis. EPA took this last 

action in the Tailoring Rule, which, 

more specifically, established 

appropriate GHG emission thresholds 

for determining the applicability of PSD 

requirements to GHG-emitting sources. 

PSD is implemented through the SIP 

system, and so in December 2010, EPA 

promulgated several rules to implement 

the new GHG PSD SIP program. 

Recognizing that some states had 

approved SIP PSD programs that did not 

apply PSD to GHGs, EPA issued a SIP 

call for 13 states (including Texas) on 

December 13, 2010, that would require 

those states with SIPs that have 

approved PSD programs but do not 

authorize PSD permitting for GHGs to 

submit a SIP revision providing such 

authority.5 EPA advised the States that 

as of January 2, 2011, if the States had 

not submitted, and EPA had not 

approved, a SIP revision establishing 

PSD permitting for GHGs, or if EPA had 

not promulgated a Federal 

Implementation Plan (FIP) by the same 

time, then sources with GHG emissions 

could, as a practical matter, be 

precluded from lawfully constructing or 

modifying due to the lack of a 

permitting authority to issue the 

required permit. 

All of the states identified in the SIP 

Call, except for Texas, either (i) 

submitted a corrective SIP revision to 

apply their CAA PSD programs to 

sources of GHG emissions promptly 

enough to avoid adverse impacts on 

their new or modifying sources, or (ii) 

did not object to EPA establishing a 

deadline for SIP revisions of December 

22, 2010. For the latter states, EPA 

published a finding of failure to submit 

the required SIP revision by the 

specified deadline and then 

immediately promulgated the GHG PSD 

FIP to ensure the availability of a 

permitting authority for GHG emitting 

sources subject to PSD requirements in 

those states.6 7

The State of Texas did not identify a 

GHG SIP revision deadline; therefore, 

EPA assigned a default twelve-month 

SIP revision deadline of December 1, 

2011. This meant that, absent further 

action, there would be no authority in 

Texas to issue PSD permits starting 

January 2, 2011. In that case, GHGemitting sources seeking to undertake 

construction or modification activities 

during almost all of 2011 would have no 

permitting authority available to issue a 

PSD permit until, at the earliest, 

December 2011. 

To remedy this situation, EPA 

determined that pursuant to CAA 

Section 110(k)(6), its prior approval of 

Texas’s PSD program ‘‘was in error’’ 

because, among other things the SIP 

failed to address all pollutants that 

would become subject to regulation in 

the future or provide assurance of 

Texas’s legal authority to do so. EPA 

corrected its previous full approval of 

Texas’s PSD SIP to be a partial approval 

and partial disapproval. The partial 

disapproval reflected the PSD SIP’s 

failure to address how PSD would apply 

to newly regulated pollutants. At the 

same time, EPA promulgated a FIP that 

applied PSD to GHGs, which are the 

newly regulated pollutants presently at 

issue. That FIP established EPA as the 

permitting authority, so that as of 

January 2, 2011, EPA could issue PSD 

permits to Texas’s GHG-emitting 


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8Texas, Wyoming and industry challenged the 

GHG PSD SIP Call rules in the D.C. Circuit. Texas 

and industry also challenged the Texas error 

correction rules in the D.C. Circuit. On July 26, 

2013, the D.C. Circuit handed down a single 

decision for two separate cases: (1) the challenge by 

Texas, Wyoming and industry to three related GHG 

PSD SIP Call rules (Utility Air Regulatory Group v. 

EPA, No. 11–1037), and (2) the challenge by Texas 

and industry to two related Texas GHG PSD error 

correction and FIP rules (Texas v. EPA, No. 10– 

1425). The decision dismisses challenges to both of 

these sets of rules by holding that none of the 

petitioners had standing to challenge any of the 

rules. 

9 ‘‘Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning 

Greenhouse Gas Emitting Sources in State 

Implementation Plans,’’ 75 FR 82536 (December 30, 

2010). The GHG PSD SIP Narrowing Rule does not 

apply to Texas because the GHG PSD FIP is in 

place. 

sources that sought to undertake 

construction or modification activities. 

EPA took this action in December 

2010, through an interim final 

rulemaking, without a prior proposal, 

under the ‘‘good cause’’ exception of 5 

U.S.C. Section 553(b)(B), in light of the 

need to establish a permitting authority 

by January 2, 2011. EPA further 

provided that the interim final 

rulemaking would expire by May 1, 

2011. At the same time, EPA proposed 

to take the same action through noticeand-comment rulemaking. By May 1, 

2011, EPA completed the notice-andcomment rulemaking by finalizing a 

rule that mirrored the interim final 

rulemaking by correcting the previous 

full approval of Texas’s PSD SIP 

provision to be a partial approval and 

partial disapproval, and by 

promulgating a FIP that established EPA 

as the permitting authority for GHGemitting sources.8

For other states, EPA recognized that 

many states had approved SIP PSD 

programs that do apply PSD to GHGs, 

but that do so for sources that emit as 

little as 100 or 250 tpy of GHG, and that 

do not limit PSD applicability to GHGs 

to the higher thresholds in the Tailoring 

Rule. Therefore, EPA issued the GHG 

PSD SIP Narrowing Rule.9 Under that 

rule, EPA withdrew its approval of the 

affected SIPs to the extent those SIPs 

covered GHG-emitting sources below 

the Tailoring Rule thresholds. EPA 

based its action primarily on the ‘‘error 

correction’’ provisions of CAA section 

110(k)(6). 

B. EPA’s Biomass Deferral Rule 

On July 20, 2011, EPA promulgated 

the final Biomass Deferral Rule. The 

Biomass Deferral delayed until July 21, 

2014, the consideration of CO2

emissions from bioenergy and other 

biogenic sources when determining 

whether a stationary source meets the 

PSD and Title V applicability 

thresholds. The D.C. Circuit Court 

issued its decision to vacate the Biomass 

Deferral Rule on July 12, 2013. 

C. EPA’s Tailoring Rule Step 3 

On July 12, 2012, EPA promulgated 

the final ‘‘Prevention of Significant 

Deterioration and Title V Greenhouse 

Gas Tailoring Rule Step 3 and GHG 

Plantwide Applicability Limits’’ (GHG 

Tailoring Rule Step 3 and GHG PALs). 

EPA’s rationale for the rule is available 

in the notice of final rulemaking at 77 

FR 41051. EPA finalized Step 3 by 

determining not to lower the current 

GHG applicability thresholds from the 

Step 1 and Step 2 levels because state 

permitting authorities had not had 

sufficient time and opportunity to 

develop the necessary infrastructure and 

increase their GHG permitting expertise 

and capacity, and the state permitting 

authorities and EPA had not had the 

opportunity to develop streamlining 

measures to improve permit 

implementation. See 77 FR 41051, 

41052. The Tailoring Rule Step 3 also 

promulgated revisions to our regulations 

under 40 CFR part 52 for better 

implementation of the federal program 

for establishing PALs for GHG 

emissions. A PAL establishes a sitespecific plantwide emission level for a 

pollutant that allows the source to make 

changes at the facility without triggering 

the requirements of the PSD program, 

provided that emissions do not exceed 

the PAL level. Under the EPA’s 

interpretation of the federal PAL 

provisions, such PALs are already 

available under PSD for non-GHG 

pollutants and for GHGs on a mass 

basis, and we revised the PAL 

regulations to allow for GHG PALs to be 

established on a CO2e basis as well. We 

also revised the regulations to allow a 

GHG-only source to submit an 

application for a CO2e-based GHG PAL 

while also maintaining its minor source 

status. We believe that these actions 

could streamline PSD permitting 

programs by allowing sources and 

permitting authorities to address GHG 

emissions one time for a source and 

avoid repeated subsequent permitting 

actions for a 10-year period. See 77 FR 

41051, 41052. 

The revisions to the PSD PAL rules 

for GHG permitting are voluntary for a 

state to adopt and implement. The 

December 2, 2013, submittal from Texas 

does not address the Tailoring Rule Step 

3 GHG PAL revisions. 

II. Summary of State Submittals 

A. October 5, 2010 

In a letter dated October 5, 2010, Mr. 

Bryan W. Shaw, Ph.D., Chairman of the 

TCEQ, submitted revisions to the Texas 

SIP that were adopted on September 15, 

2010, and became effective on October 

7, 2010. This submittal included the 

following revisions that were submitted 

primarily to address the Texas Minor 

NSR Qualified Facilities Program: 

• Substantive and non-substantive 

revisions to General Definitions for the 

Texas NSR Program at 30 TAC Section 

116.10, 

• New definitions at 30 TAC Section 

116.17 for the Texas Qualified Facilities 

Program, 

• Substantive and non-substantive 

revisions to the General Application 

Provisions for the Texas NSR Program at 

30 TAC Section 116.111, 

• Substantive revisions to the 

provisions for Changes to Facilities at 30 

TAC Section 116.116 specific to 

qualified facilities, and 

• Substantive and non-substantive 

revisions to the provisions for 

Documentation and Notification of 

Changes to Qualified Facilities at 30 

TAC Section 116.117. 

EPA’s proposed action today will only 

evaluate the revisions to the General 

Application requirements at 30 TAC 

Section 116.111 that are necessary to 

support the Texas PSD program, 

including the permitting of GHG 

emissions in Texas. EPA is severing and 

taking no action at this time on the 

remaining components of the October 5, 

2010, SIP submittal that address the 

Qualified Facilities program. By 

severing, we mean that the October 5, 

2010 submittal of the revisions to the 

General Application requirements at 30 

TAC Section 116.111 can be 

implemented independently of the 

portions of the submittal relating to the 

Texas Minor NSR Qualified Facilities 

program. EPA will evaluate and take 

action on the remaining portions of the 

October 5, 2010, SIP submittal at a later 

date. 

B. December 2, 2013 

In a letter dated December 2, 2013, 

Mr. Zak Covar, Executive Director of the 

TCEQ, requested parallel processing of 

the October 23, 2013, proposed new and 

amended rules to implement the 

requirements of Texas House Bill (HB) 

788, 83rd Legislature, 2013. Texas HB 

788 directed the TCEQ to adopt rules 

necessary to implement the 

requirements of EPA’s GHG Tailoring 

Rule and limit the regulation of GHGs 

only to the Texas PSD program. The 

December 2, 2013, parallel processing 

submittal consisted of the following 

revisions: 

• 30 TAC Chapter 39—Public Notice. 

The rules governing public notice for 

applications for air quality permits are 


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contained in Chapter 39. Emissions of 

GHGs will be covered under the Texas 

PSD program, and will therefore follow 

the same public notice provisions as 

other PSD permit applications in Texas. 

The TCEQ has made changes to indicate 

that certain items required by a PSD 

public notice may not be applicable to 

GHG PSD permit applications—such as 

an air quality analysis or a Class I 

impact analysis for GHGs. Additionally, 

Texas HB 788, from the 83rd 

Legislature, 2013, has specifically 

exempted GHG PSD permit applications 

from the Texas requirement to provide 

an opportunity for the contested case 

hearing process. 

Æ 30 TAC Section 39.411—Text of 

Public Notice. 

The TCEQ has proposed revisions to 

30 TAC Section 39.411 that will require 

the public notice for a GHG PSD permit 

application to include a statement that 

any person is entitled to request a 

public meeting or a notice and comment 

hearing. The TCEQ has also amended 

this section to include the phrase ‘‘as 

applicable’’ in reference to the air 

quality analyses that must be made 

available for review. Additionally, the 

TCEQ has proposed several 

typographical corrections throughout 

section 39.411. 

Æ 30 TAC Section 39.412—Combined 

Notice for Certain Greenhouse Gases 

Permit Applications. 

The TCEQ has proposed this new 

section to streamline the permit 

application process only for permit 

applications that have been transferred 

from EPA after the effective date of the 

FIP rescission, or for permit 

applications that were previously filed 

with EPA and EPA has already 

published a draft permit. This new 

section would allow a permit applicant 

to issue one public notice combining the 

requirements of the Texas first notice 

(Notice of Receipt of Application and 

Intent to Obtain Permit (NORI)) and the 

Texas second notice (Notice of 

Application and Preliminary Decision 

(NAPD)). 

Æ 30 TAC Section 39.419—Notice of 

Application and Preliminary Decision. 

The TCEQ has amended this section 

to add the phrase ‘‘as applicable’’ in 

reference to the air quality analysis that 

must be available for public review. 

Æ 30 TAC Section 39.420— 

Transmittal of the Executive Director’s 

Response to Comments and Decision. 

TCEQ has amended this section to 

include a new provision at 30 TAC 

Section 39.420(e)(4) that says public 

notice documents for GHG PSD permits 

do not need to include instructions on 

how to request a contested case hearing 

or requesting the commission reconsider 

the Executive Director’s decision. 

• 30 TAC Chapter 101—General Air 

Quality Rules. 

The TCEQ has amended the 

definitions and general rules germane to 

the Texas SIP to implement the 

requirements of Texas HB 788 and to 

provide authority to regulate GHGs. 

Æ 30 TAC Section 101.1—Definitions. 

D The TCEQ has proposed a new 

definition for GHGs at 30 TAC Section 

101.1(42). 

D The TCEQ has also proposed 

several amendments to the definition of 

Reportable Quantity at 30 TAC Section 

101.1(89) to establish that there is no 

reportable quantity for GHGs (except for 

the specific individual air contaminants 

found in the current definition of RQ), 

and establish a reportable quantity of 

5,000 pounds for 3-pentanone, 

1,1,1,2,2,4,5,5,5-nonafluoro-4- 

(trifluromethyl)-, CAS No. 756–13–8 

(hereafter referred to as C6 fluoroketone) 

rather than the default reportable 

quantity of 100 pounds. 

D The TCEQ has also proposed 

amendments to the definition of 

unauthorized emissions at 30 TAC 

Section 101.1(108) to exclude emissions 

of carbon dioxide (CO2) and methane 

(CH4). 

D The TCEQ has also proposed a 

number of non-substantive amendments 

to correct for renumbering and internal 

referencing to other TAC provisions. 

Æ 30 TAC Section 101.10—Emissions 

Inventory Requirements. 

D The TCEQ has proposed 

amendments to 30 TAC Section 

101.10(a)(3) to provide an exception for 

GHG emissions to the applicable criteria 

for which an owner or operator is 

required to submit emission inventories. 

D The TCEQ has also proposed nonsubstantive revisions for renumbering 

and formatting and to update references 

to other TAC provisions. 

Æ 30 TAC Section 101.201— 

Emissions Event Reporting and 

Recordkeeping Requirements. 

The TCEQ has proposed an 

amendment to specify that any 

emissions of GHG, individually or 

collectively, are not subject to emissions 

event reporting. 

• 30 TAC Chapter 106—Permits by 

Rule. 

The Texas Permits by Rule (PBR) 

program under 30 TAC Chapter 106, is 

one component of the SIP-approved 

Minor NSR program in Texas. The 

TCEQ has proposed amendments to the 

Minor NSR PBR program at 30 TAC 

Section 106.2 to clarify that emissions of 

GHG cannot be authorized through a 

PBR. Additionally, the TCEQ has 

proposed an amendment to 30 TAC 

Section 106.4 to specify that for sources 

that are only subject to PSD for GHG 

emissions, a PBR can still be used to 

authorize the non-PSD emissions; 

provided that the source obtains the 

GHG PSD construction permit prior to 

commencing construction. 

• 30 TAC Chapter 116—Control of 

Air Pollution by Permits for New 

Construction or Modification. 

The Texas PSD program and 

necessary implementing definitions are 

SIP-approved under 30 TAC Chapter 

116. With the exception of PBR which 

are codified at 30 TAC Chapter 106, the 

remainder of the SIP-approved Texas 

Minor NSR program is SIP-approved at 

30 TAC Chapter 116. The TCEQ has 

proposed several amendments to this 

chapter to provide for PSD permitting of 

GHG emissions and to limit the scope of 

the Texas Minor NSR programs to not 

include emissions of GHG. Specifically, 

the TCEQ has proposed the following: 

Æ 30 TAC Section 116.12— 

Nonattainment and Prevention of 

Significant Deterioration Definitions. 

D The TCEQ has proposed new 

definitions for the ‘‘CO2 equivalent’’ and 

the pollutant GHG. 

D The TCEQ has also proposed 

revisions to the definitions of ‘‘Federally 

Regulated NSR pollutant,’’ ‘‘major 

stationary source,’’ and ‘‘major 

modifications.’’ 

D The TCEQ has also proposed 

renumbering to accommodate the 

proposed new definitions. 

Æ 30 TAC Section 116.111—General 

Application. 

D The TCEQ has proposed an 

amendment to the general application 

provisions to require a PSD permit for 

GHG emissions that meet or exceed the 

thresholds for GHG PSD permitting 

established in new proposed section 

116.164. This amendment will specify 

that GHG permitting is statewide, 

without regard to an attainment 

designation for GHG permitting. 

Æ 30 TAC Section 116.160—Prevision 

of Significant Deterioration 

Requirements. 

D TCEQ has proposed an amendment 

to 30 TAC Section 116.160(a) to require 

new major sources of GHG emissions or 

major modifications of GHG emissions 

to comply with the PSD permitting 

program regardless of location of the 

source. 

D TCEQ has proposed amendments to 

30 TAC Section 116.160(b)(2) to include 

references to the netting requirements 

for GHG applicability thresholds 

established in new section 116.164. 

D TCEQ has also proposed an 

amendment to 30 TAC Section 

116.160(c) to clarify that emissions of 


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10The Texas PSD program incorporates the 

federal PSD definition of BACT at 40 CFR 

52.21(b)(12). This means that PSD BACT will be 

based on the maximum degree of reduction for each 

pollutant subject to regulation under the Act, taking 

into account energy, environmental, and economic 

impacts and other costs. The Texas BACT process 

will apply to all permitted facilities and 

contaminants—not just major sources—and is not 

held to the same rigor as the federal PSD BACT 

analysis. For example, minor NSR applicants only 

have to meet controls currently permitted as 

compared to the federal PSD requirement to use the 

most stringent control technology. 

GHG are subject to the applicability 

thresholds in new section 116.164. 

Æ 30 TAC Section 116.164— 

Prevention of Significant Deterioration 

Applicability for Greenhouse Gases 

Sources. 

The TCEQ has proposed a new 

subsection to the Texas PSD program 

specifically for the permitting of GHG 

emissions. This new subsection 

establishes the applicability thresholds 

developed by EPA in the GHG Tailoring 

Rule. 

Æ 30 TAC Section 116.169— 

Greenhouse Gas Transition. 

The TCEQ has proposed a new 

subsection to the Texas PSD program to 

address the transition process for permit 

applicants upon the effective date of the 

rescission of the GHG PSD FIP by the 

EPA Administrator. The proposed 

subsection does not identify the actions 

to be taken by EPA; it only establishes 

that upon the rescission of the FIP, the 

TCEQ will accept the transfer and 

review of pending permit applications. 

The actions to be taken by EPA during 

the transition process will be discussed 

in section IV.B. of this notice. 

• 30 TAC Chapter 122—Federal 

Operating Permits. 

The TCEQ proposed several 

amendments to the Texas Title V 

program on October 23, 2013; but only 

the proposed revisions to 30 TAC 

Section 122.122—Potential to Emit— 

have been submitted for parallel 

processing into the Texas SIP. In this 

proposed revision, the TCEQ amends 

the potential to emit provisions to 

clarify that existing sites must certify 

emissions of GHG below major source 

thresholds. Existing sites that are 

currently operating will have 90 days 

after EPA’s FIP rescission to certify 

emissions of GHGs to avoid 

applicability of Title V permitting. 

• The TCEQ December 2, 2013, 

commitment letter also addresses the 

requirement that the state provide the 

necessary assurances of its authority to 

address all future federally regulated 

pollutants under the Texas PSD 

program, in order to remove the PSD FIP 

at 40 CFR 52.2305(c). 

• The January 13, 2014, letter from 

TCEQ demonstrates its authority to 

administer the Texas PSD program for 

EPA issued GHG PSD permits. 

III. EPA’s Analysis of the State 

Submittals 

A. Analysis of the October 5, 2010, State 

Submittal 

As explained previously in section 

II.A., EPA’s analysis of the October 5, 

2010, submittal only addresses the 

submitted substantive and nonsubstantive revisions to the General 

Application provisions to the Texas 

NSR program at 30 Section TAC 

116.111. The substantive revision to 30 

TAC Section 116.111(a)(2)(C) clarifies 

when federal BACT will be applied to 

PSD permit applications. The TCAA 

requires the TCEQ to apply BACT to all 

facilities and to all contaminants 

emitted from said facilities that are 

permitted under the TCAA, including 

non-PSD sources and modifications. 

EPA refers to this process as ‘‘Texas 

BACT.’’ We view the application of 

Texas BACT, which would include 

BACT for Minor NSR permitting, to be 

a separate requirement from the 

application of federal BACT as required 

in EPA’s PSD regulations and the Texas 

SIP-approved PSD Program. To clarify 

the requirements of the TCAA and to 

ensure compliance with federal PSD 

regulations, the TCEQ has submitted 

revisions to the general application 

provisions at 30 TAC Section 

116.111(a)(2)(C). Pursuant to the 

submitted revisions, BACT consistent 

with the Texas Clean Air Act (Texas 

BACT) will be applied to all permit 

applications under the TCAA. However, 

prior to the application of Texas BACT, 

if the permit application is for a new 

source or modification subject to PSD, 

then BACT consistent with the federal 

PSD requirements and the SIP-approved 

Texas PSD program must be applied. 

The SIP-approved Texas PSD program at 

30 TAC Section 116.160(c)(1)(A) 

incorporates the requirements for BACT 

at 40 CFR 52.21(b)(12).10 The submitted 

revision clearly requires that all PSD 

subject applications go through federal 

PSD BACT in addition to Texas BACT; 

for PSD permit applications, federal 

BACT requirements will govern the 

permitting process if there is a 

discrepancy between the federal BACT 

and Texas BACT analysis. The TCEQ 

also submitted several non-substantive 

revisions made throughout 30 TAC 

Section 116.111 to spell out acronyms 

and to clarify/update cross-references. A 

complete listing of all the revisions is 

available in the accompanying TSD for 

this rulemaking. EPA proposes to 

approve the October 5, 2010, revisions 

to 30 TAC Section 116.111 as consistent 

with the PSD requirements at 40 CFR 

51.166. Further, we note that the 

substantive revision is consistent with 

and supportive of revisions to the Texas 

PSD program separately approved at 30 

TAC Section 116.160 on September 15, 

2010. See 75 FR 55978. 

B. Analysis of the December 2, 2013, 

State Submittal 

As described in the discussion in 

Section II.B of this proposal notice, the 

TCEQ proposed revisions to several 

portions of the Texas Air Code to 

implement the requirements of Texas 

HB 788 and to provide TCEQ the 

authority to regulate GHG emissions 

through the Texas PSD program. Texas 

HB 788 required further revisions to the 

Texas SIP and the Minor NSR program 

to ensure that GHG emissions would 

only be regulated via the PSD program 

as required through EPA’s GHG 

Tailoring Rule. The analysis in this 

section will be presented based on those 

revisions necessary for the PSD program 

and those that are non-PSD. 

EPA is parallel processing the 

revisions proposed on October 23, 2013, 

based on the request submitted on 

December 2, 2013. This means that EPA 

is proposing approval at the same time 

that Texas is completing the public 

comment and rulemaking process at the 

state level. The December 2, 2013, SIP 

revision request will not be complete 

and will not meet all the adequacy 

criteria until the state public process is 

complete and the SIP revision is 

submitted as a final adoption with a 

letter from the Governor or Governor’s 

designee. EPA is proposing to approve 

the SIP revision request after 

completion of the state public process 

and final submittal. 

i. Analysis of the Proposed Revisions to 

the Texas PSD Program 

Definitions To Effectuate Authority 

TCEQ has proposed several new 

definitions in the Texas SIP to adopt 

and implement the permitting of GHGs 

consistent with federal requirements. 

• TCEQ proposed new definitions at 

30 TAC Sections 101.1(42) and 

116.12(16) to adopt the definition of 

‘‘greenhouse gases’’. Based on our 

analysis, EPA proposes to find that the 

new definitions of GHG are consistent 

with the federal PSD definition at 40 

CFR 51.166(b)(48). 

• The TCEQ has also proposed a new 

definition for ‘‘carbon dioxide 

equivalent (CO2e)’’ at 30 TAC Section 

116.12(7)(A). Based on our analysis, 

EPA proposes to find that the definition 

at 30 TAC Section 116.12(7)(A) is 


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consistent with the provisions at 40 CFR 

51.166(b)(48)(ii)(a) and (b). 

• The TCEQ also proposed revisions 

to the definition of ‘‘potential to emit’’ 

at 30 TAC Section 122.122. EPA 

proposes to find that these revisions are 

necessary to update the SIP-approved 

definition to account for the permitting 

of GHG emissions. The Texas PSD 

program relies on a source’s potential to 

emit for establishing applicability of the 

PSD rules. 

EPA’s analysis is that the new 

definitions for GHG and CO2e at 30 TAC 

Sections 101.1(42), 116.12(16), and 

116.12(7A) are consistent with the Act 

and EPA regulations at 40 CFR 51.166. 

The proposed revisions to the definition 

of ‘‘potential to emit’’ at 30 TAC Section 

122.122 are necessary to ensure that 

PSD permitting applicability is 

calculated correctly. Therefore, we 

propose approval of the new definitions 

and propose to find that the final 

adoption of the definitions for 

‘‘greenhouse gases’’ and ‘‘CO2e’’ will 

effectuate the authority for the State of 

Texas to regulate emissions of GHG 

through the Texas SIP and the Texas 

PSD program. 

Public Notice for GHG PSD Permit 

Applications 

The December 2, 2013, proposed 

revisions included revisions to the 

Texas Public Notice requirements for 

PSD permitting at 30 TAC Chapter 39. 

On January 6, 2014, EPA approved the 

Texas public notice rules for PSD 

permitting for inclusion in the Texas 

SIP. See 79 FR 551. Our final approval 

found that the Texas public notice 

process of the Notice of Receipt of 

Application and Intent to Obtain Permit 

(NORI) and the Notice of Application 

and Preliminary Decision (NAPD) 

would satisfy all PSD-specific public 

notice requirements at 40 CFR 51.160, 

51.161 and 51.166(q). We note that 

Texas regulations require that non-GHG 

PSD permits are subject to the Texas 

Contested Case Hearing (CCH) process 

which EPA has determined is outside 

the scope of the Texas SIP. Texas HB 

788 specifically directed the TCEQ to 

adopt and implement regulations to 

issue GHG PSD permits; however these 

GHG PSD permits will be exempted 

from the Texas CCH process. This 

exemption required the TCEQ to revise 

the PSD public notice provisions at 30 

TAC Chapter 39 to address the special 

requirements for issuing separate GHG 

PSD permits. Additionally, the PSD 

public notice provisions were revised to 

accommodate the subset of pending 

permit applications that will be 

transferred to TCEQ from EPA upon the 

effective date of the GHG PSD FIP 

rescission. Because of these revisions to 

the PSD public notice rules, EPA finds 

it necessary to evaluate the Texas 

proposed revisions to 30 TAC Chapter 

39 with respect to the federal PSD 

requirements at 40 CFR 51.166(q) to 

ensure all federal requirements continue 

to be satisfied in the December 2, 2013, 

proposed SIP revision. 

Proposed 30 TAC Section 

116.111(a)(2)(I)(ii) requires that a 

proposed facility or modification that 

meets or exceeds the GHG emission 

thresholds defined in new 30 TAC 

Section 116.164 must comply with all 

applicable requirements in 30 TAC 

Chapter 116 for PSD permitting. One 

such applicable requirement for PSD 

permitting is the SIP-approved 

requirement at 30 TAC Section 

116.111(b)(2) which requires that 

Chapter 39 public notice provisions are 

followed for PSD permits declared 

administratively complete on or after 

September 1, 1999. Therefore, proposed 

30 TAC Section 116.111(a)(2)(I)(ii) and 

the existing SIP establish that the 

requirements found in 30 TAC Chapter 

39, Subchapters H and K apply to 

applications for the new major source or 

major modifications for facilities subject 

to Chapter 116, Subchapter B, Division 

6, Sections 116.164 and 116.169 for 

GHG PSD Permitting. Every application 

for a new major source or major 

modification subject to GHG PSD 

permitting requirements will therefore 

go through public notice with both the 

NORI and NAPD. Note that under the 

SIP, as of January 6, 2014, the applicant, 

rather than the state permitting 

authority, is the legally responsible 

party for satisfying the public notice 

requirements for PSD applications. For 

example, the applicant continues to be 

legally responsible for the publication of 

the NORI and NAPD, using the specific 

notice text provided through regulations 

by the TCEQ. The applicant is also 

legally responsible for providing copies 

of the public notice documents to the 

EPA Regional Office, local air pollution 

control agencies with jurisdiction in the 

county, and air pollution control 

agencies of nearby states that may be 

impacted by the proposed new source or 

modification. The applicant is required 

to follow the Texas public notice 

regulations, which specify the text for 

the notice documents and specify the 

additional agencies that will receive 

notice. 

The TCEQ has proposed revisions to 

the public notice text requirements at 30 

TAC Section 39.411 specific to GHG 

PSD permit applications at Sections 

39.411(e)(11), (e)(15), (e)(16), (f)(4) and 

(f)(8). These proposed revisions to the 

notice text require that, in addition to 

the text SIP-approved for PSD permits, 

the text of the public notice specifically 

for a GHG PSD permit must specify that 

any person is entitled to a public 

meeting or a notice and comment 

hearing from the commission and that 

the air quality analysis will be provided 

if applicable. Currently EPA does not 

require an air quality analysis for GHG 

PSD permits. In the event that an 

analysis is required in the future, the 

proposed revisions to the Texas Public 

Notice requirements will include the 

analysis as required without further 

rulemaking on the part of TCEQ. 

Similarly, the TCEQ has proposed 

revisions to the NAPD text requirements 

specific to GHG PSD Permit 

applications at 30 TAC Section 

30.419(e)(1) to state that an air quality 

analysis will be available for public 

notice as applicable. The proposed 

revisions to 30 TAC Section 39.420(e)(4) 

exempt applications for GHG PSD 

permits from the Texas CCH process. 

EPA is proposing to find that the GHG 

PSD specific revisions as discussed 

above continue to meet the 

requirements to provide opportunity for 

public comment and for information 

availability at 40 CFR 51.161 and 

51.166. The NORI and NAPD both 

identify locations where materials, 

including the draft permit and all 

technical materials supporting the 

decision, will be made available for 

public review. The TCEQ will also 

respond to each comment received 

when making a final permit decision. 

The TCEQ will provide opportunity for 

a public meeting on the permit 

application if requested. TCEQ has 

exempted the GHG PSD permit 

applications from the Texas-specific 

process of contested case hearings, 

which is outside the scope of the Texas 

SIP. 

The TCEQ has also proposed a new 

public notice process for the subset of 

GHG PSD permit applications that are 

transferred to TCEQ from the EPA upon 

the effective date of the GHG PSD FIP 

Rescission and where EPA has already 

proposed a draft permit. Proposed new 

Section 30 TAC 39.412 creates an 

optional Combined Notice process, to be 

used in lieu of the current SIP-approved 

process of a separate NORI and NAPD, 

to streamline the processing of these 

pending permit applications. Proposed 

new 30 TAC Section 39.412(a) 

establishes the applicability of this new 

section specifically to the subset of 

applications that were previously filed 

with EPA and which EPA proposed a 

draft permit prior to transfer to the 

TCEQ. Proposed new 30 TAC Section 

39.412(b) provides the streamlined 


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process for the subset of permit 

applications to be a Combined Notice 

addressing the requirements of both the 

NORI and NAPD in one notice 

document, in lieu of the SIP-approved 

process requiring a separate NORI and 

NAPD. The Combined Notice will 

identify a public location where the 

application, the preliminary 

determination and draft permit will be 

available for review and comment, in 

addition to a list of all the GHGs 

proposed to be emitted and an air 

quality analysis, as applicable. The 

Combined Notice will also provide 

instructions on submitting comments, a 

statement that a public meeting will be 

held if requested, and a statement that 

the comment period will be 30 days 

after the last publication of the 

Combined Notice. Additionally, the 

Combined Notice will state that any 

comments previously submitted to EPA 

regarding the GHG PSD permit 

application will not be included in the 

Executive Director’s response to 

comments unless the comments are 

submitted to the TCEQ during the 

comment period identified in the 

Combined Notice. EPA proposes to find 

the Combined Notice at 30 TAC Section 

39.412, specific to the subset of 

transferred permit applications where a 

draft permit was previously proposed by 

EPA, is consistent with all requirements 

of 40 CFR 51.166(q) for PSD public 

notice requirements. 

EPA’s analysis of the Texas public 

participation requirements, both for 

newly submitted GHG PSD permit 

applications and those transferred from 

EPA, demonstrates that the submitted 

provisions are consistent with the Act 

and EPA regulations at 40 CFR 51.160, 

51.161 and 51.166(q). Therefore, we 

propose approval of the new and 

revised sections in 30 TAC Chapter 39, 

submitted for parallel processing on 

December 2, 2013. 

Proposed Revisions To Establish PSD 

Authority and Appropriate Thresholds 

for GHG Permitting 

TCEQ has proposed several new 

provisions in the Texas NSR Program to 

adopt and implement the permitting of 

GHG emissions consistent with federal 

requirements in EPA’s GHG Tailoring 

Rule. The proposed regulations are 

substantively similar to the federal 

requirements for the permitting of GHGemitting sources subject to PSD. The 

detailed analysis in our TSD 

demonstrates that the regulatory 

revisions proposed on October 23, 2013, 

and submitted for parallel processing on 

December 2, 2013, establish that Texas 

has the authority to issue PSD permits 

for GHG-emitting sources subject to PSD 

consistent with the federal PSD 

requirements of EPA’s final GHG 

Tailoring Rule. The revisions also 

establish thresholds for determining 

which stationary sources and 

modification projects become subject to 

permitting requirements for GHG 

emissions under its PSD program. 

Specifically, the December 2, 2013, 

submittal satisfies the Tailoring Rule 

requirements in the following ways: 

• TCEQ proposed a new provision in 

the NSR Permit Application procedures 

at new subsection 30 TAC Section 

116.111(a)(2)(I)(ii) that explicitly 

requires that any proposed facility or 

modification that meets or exceeds the 

GHG thresholds established in new 

proposed section 30 TAC Section 

116.164 must comply with all 

applicable requirements of Chapter 116 

for PSD review. This new provision 

ensures that all PSD requirements such 

as BACT and public notice will be 

followed for GHG PSD permit 

applications. The October 5, 2010, 

revisions to 30 TAC Section 

116.111(a)(2)(C), previously discussed 

in this proposed rulemaking, 

complement the implementation of the 

Texas PSD program, especially with 

regard to the PSD permitting of GHG 

emissions. While the October 5, 2010, 

revisions are germane to the Texas PSD 

program and ensure that federal BACT 

consistent with EPA’s PSD regulations 

will apply to all PSD permit 

applications, we specifically note that 

the provision also applies to GHG PSD 

permits and ensures that federal BACT 

will be applied to all GHG PSD permit 

applications. EPA proposes to find that 

the October 5, 2010, revisions to 30 TAC 

Section 116.111(a)(2)(C) and the 

proposed new provision at 30 TAC 

Section 116.111(a)(2)(I)(ii) are necessary 

to implement the Texas GHG PSD 

permitting process. 

• TCEQ proposed revisions to the 

Texas PSD program rules at 30 TAC 

Section 116.160(a) to explicitly require 

any new major source of GHG emissions 

or major modification involving GHG 

emissions shall comply with the 

applicable requirements of the Texas 

PSD program. TCEQ proposed further 

revisions to the Texas PSD program at 

30 TAC Sections 116.160(b) and (c) to 

specify that the proposed new GHG 

emission thresholds established at 30 

TAC Section 116.164 must be used 

when evaluating a proposed new source 

or modification for PSD applicability. 

EPA proposes to find that the proposed 

revisions to the Texas PSD program at 

30 TAC Sections 116.160(a), (b), and (c) 

are necessary to implement the Texas 

GHG PSD permitting process. 

• TCEQ proposed new 30 TAC 

Sections 116.164 to establish the PSD 

applicability requirements for GHG 

sources. 

Æ EPA proposes to find that proposed 

new 30 TAC Section 116.164(a), which 

establishes the applicability statement 

for the GHG PSD permitting thresholds, 

is consistent with the federal 

requirement at 40 CFR 51.166(b)(48)(iv) 

to regulate GHG emissions through the 

PSD program. 

Æ EPA proposes to find that proposed 

new 30 TAC Section 116.164(a)(1) is 

consistent with the federal requirements 

at 40 CFR 51.166(b)(48)(iv)(a) for the 

regulation of a new major stationary 

source that is subject to PSD 

requirements for a non-GHG pollutant 

and will emit or have the potential to 

emit GHG emissions above the specified 

thresholds. 

Æ EPA proposes to find that proposed 

new 30 TAC Section 116.164(a)(2) is 

consistent with the federal requirements 

at 40 CFR 51.166(b)(48)(iv)(b) for the 

regulation of an existing major 

stationary source that is major for nonGHG and will emit or have the potential 

to emit GHG emissions above the 

specified thresholds. 

Æ EPA proposes to find that proposed 

new 30 TAC Section 116.164(a)(3) is 

consistent with the federal requirement 

at 40 CFR 51.166(b)(48)(v)(a) for the 

regulation of a new major stationary 

source that is subject to PSD only for 

GHG emissions based on the specified 

thresholds. 

Æ EPA proposes to find that proposed 

new 30 TAC Section 116.164(a)(4) is 

consistent with the federal requirements 

at 40 CFR 51.166(b)(48)(v)(b) for the 

regulation of an existing stationary 

source that is major for GHG emissions 

and proposes a major modification for 

GHG emissions above the specified 

thresholds. 

Æ EPA proposes to find that proposed 

new 30 TAC Section 116.164(a)(5) is 

consistent with the requirement at 40 

CFR 51.166(b)(1)(i)(C) for the regulation 

of an existing minor stationary source 

for non-GHG pollutants that would 

undertake a physical change or change 

in the method of operation that will 

cause the source to be a major stationary 

source by itself for GHG emissions at the 

specified thresholds. 

Æ Proposed new 30 TAC Section 

116.164(b) establishes that new 

stationary sources or existing stationary 

sources that make modifications 

involving emissions of GHG below the 

thresholds established in new 30 TAC 

Section 116.164(a) are not required to 

have an authorization for the GHG 

emissions through a PSD permit or other 

Texas Minor NSR permit authorizations 


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Federal Register / Vol. 79, No. 32 / Tuesday, February 18, 2014 / Proposed Rules 9131 

11EPA has separately promulgated mandatory 

reporting requirements for owners and operators of 

certain facilities that directly emit GHG emissions 

at 40 CFR part 98. See 74 FR 56260, October 30, 

2009. The Emission Inventory developed and 

maintained by a state permitting authority under 

the applicable SIP is separate from the requirements 

under 40 CFR part 98 and is not required to include 

GHG emissions data. 

12A ‘‘pending permit application’’ is any GHG 

PSD permit application submitted to EPA for which 

EPA has not yet issued a final permit to authorize 

the emissions of GHG by the signature date of EPA’s 

final approval of the Texas SIP rules and rescission 

of the FIP. 

such as a Standard Permit, PBR or 

Flexible Permit. EPA proposes to find 

that this new provision is consistent 

with EPA’s GHG Tailoring Rule where 

we have established that emissions of 

GHG are only subject to regulation 

above the Tailoring Rule thresholds. 

• TCEQ proposed new 30 TAC 

Section 116.169 to establish the 

authority for the TCEQ to accept the 

transfer of permit applications and 

associated materials upon the effective 

date of the GHG PSD FIP rescission. 

EPA proposes to find that new 30 TAC 

Section 116.169 is necessary for 

establishing the legal authority for 

TCEQ to implement the GHG PSD 

permitting program. 

ii. Analysis of the Proposed Non-PSD 

Revisions to the Texas SIP 

The December 2, 2013, submittal 

included several proposed revisions to 

the remainder of the Texas SIP and the 

Texas Minor NSR programs to satisfy 

the requirements of Texas HB 788 and 

restrict the permitting of GHG emissions 

only to the extent required under federal 

law. As such, the TCEQ proposed 

revisions to the definitions of 

‘‘reportable quantity’’ at 30 TAC Section 

101.1(89) to establish there is no 

reportable quantity for GHG emissions. 

TCEQ also proposed revisions to the 

Emission Inventory Requirements at 30 

TAC Section 101.10 to specify that 

emissions of GHG are not subject to the 

reporting requirements in the Emission 

Inventory. Similarly, the TCEQ 

proposed revisions to the Emissions 

Event Reporting and Recordkeeping 

Requirements to specify that emissions 

of GHG are not included in emissions 

event reporting. EPA proposes to find 

that these provisions are consistent with 

EPA’s GHG Tailoring Rule and our 

determination that emissions of GHG 

are only subject to regulation in the PSD 

program above the specified GHG 

thresholds. There are no federal 

requirements establishing reportable 

quantities or reporting requirements for 

emission inventories or emission events 

for GHG emissions.11

The December 2, 2013, submittal also 

proposed revisions to the Texas Minor 

NSR program at 30 TAC Sections 106.2, 

106.4, 116.610, and 116.611. The 

proposed revisions to the Texas Minor 

NSR Permits by Rule (PBR) Program at 

30 TAC Sections 106.2 and 106.4 clarify 

that a PBR cannot be used to authorize 

emissions of GHGs. Similarly, the 

proposed revisions to the Texas Minor 

NSR Standard Permit Program at 30 

TAC Sections 116.610 and 116.611 

clarify that a Standard Permit cannot be 

used to authorize emissions of GHGs. 

The Texas provisions also provide that 

if a source is subject to PSD 

requirements only for the emissions of 

GHGs, then a PBR or Standard Permit 

can be used to authorize the non-GHG 

pollutants. EPA proposes that the 

revisions to the PBR and Standard 

Permit are consistent with EPA’s 

Tailoring Rule to only regulate GHG 

emissions through the PSD program at 

or above the specified GHG PSD 

thresholds; therefore, these proposed 

revisions will ensure that GHG PSD 

requirements will not be circumvented. 

IV. EPA’s Analysis for Rescinding the 

Texas PSD FIP 

A. Evaluation of Rescission of the GHG 

PSD FIP at 40 CFR 52.2305(a), (b), and 

(c) 

EPA established the final Texas GHG 

PSD FIP on May 3, 2011, at 40 CFR 

52.2305(a), (b), and (c). These provisions 

remain in effect until EPA approves the 

state’s rules to address the permitting of 

GHG emissions consistent with federal 

requirements and EPA rescinds the FIP. 

The analysis presented in Section III of 

this rulemaking and the accompanying 

TSD demonstrate that the October 23, 

2013, proposed rules submitted for 

parallel processing on December 2, 

2013, adequately address all federal 

requirements for GHG PSD permitting. 

In addition, Mr. Zak Covar, former 

Executive Director of the TCEQ, 

submitted a commitment letter on 

December 2, 2013, that addresses the 

requirement that the state provide 

necessary assurances of its authority to 

address all future regulated pollutants 

under the Texas PSD program in order 

to remove the PSD FIP at 40 CFR 

52.2305(c). Based on the commitments 

in the December 2, 2013, letter and the 

October 23, 2013, proposed rulemaking 

for permitting emissions of GHG 

through the Texas PSD program, EPA 

proposes to find that the TCEQ has the 

authority under the Texas Clean Air Act 

to apply the Texas PSD program to all 

pollutants newly subject to regulation, 

including non-NAAQS pollutants into 

the future. EPA recognizes that the 

TCEQ may be required to proceed 

through a notice and comment rule 

development process, but this process 

in no way prevents the TCEQ from 

addressing the PSD requirements of the 

CAA. As such, we are proposing 

rescission of the Texas GHG PSD FIP at 

40 CFR 52.2305(a), (b), and (c), with 

three limited possibilities for retained 

authority as detailed below in Section 

IV.B. 

B. Transition Process Upon Rescission 

of the GHG PSD FIP for Pending GHG 

PSD Permit Applications and Issued 

GHG PSD Permits 

As explained throughout this notice, 

EPA is proposing approval of the 

December 2, 2013, submittal as 

consistent with the requirements for 

PSD permitting of GHG emissions under 

EPA’s GHG Tailoring Rule. Our analysis 

demonstrates the TCEQ has proposed 

necessary rule revisions to provide 

adequate authority to regulate GHG 

emissions using appropriate emission 

thresholds under the Texas PSD 

program. As such, EPA is 

simultaneously proposing to rescind the 

GHG PSD FIP and intends to finalize 

both actions simultaneously. We expect 

that the FIP rescission will be effective 

30 days after publication of the final 

approval of the Texas GHG PSD 

revisions. EPA has developed a process 

for transitioning pending permit 

applications and EPA issued permits to 

the TCEQ following the rescission of the 

FIP. Our transition process, titled 

‘‘Transition Process for Pending GHG 

PSD Permit Applications and Issued 

GHG PSD Permits Upon Rescission of 

the GHG PSD FIP’’ is available in the 

docket for this rulemaking and on the 

EPA Region 6 GHG Web site at http:// 

yosemite.epa.gov/r6/Apermit.nsf/AirP. 

The transition process is briefly 

summarized below. EPA believes that 

the transition process will ensure a 

smooth transfer of permitting authorities 

for GHG PSD permits in Texas and 

inform the regulated entities. Please 

note that this transition process is 

predicated on the fact that the TCEQ 

will proceed with final rulemaking to 

adopt the GHG PSD SIP rules and 

submit these rules to EPA for approval 

into the Texas SIP. If TCEQ is unable to 

submit a final SIP revision, EPA will not 

rescind the FIP and will therefore not 

initiate the transition process. 

EPA’s transition process addresses 

two components of the GHG PSD 

program—pending permit applications 

and issued permits.12 Through 

application of this transition process 

and in concert with the rescission of the 

GHG PSD FIP, EPA will retain GHG PSD 


emcdonald on DSK67QTVN1PROD with PROPOSALS
9132 Federal Register / Vol. 79, No. 32 / Tuesday, February 18, 2014 / Proposed Rules 

permitting authority at 40 CFR 52.2305 

in the following three limited instances: 

1. EPA will retain GHG PSD 

permitting authority for any applicants 

who select to remain with EPA for GHG 

PSD permit issuance. This option will 

be detailed in a letter to the permit 

applicant and will contain a deadline by 

which the applicant must inform EPA of 

its decision to remain with EPA. EPA 

will also maintain a list of all pending 

permit applications retained under 

EPA’s GHG PSD permitting authority on 

the EPA Region 6 GHG Web site, which 

will be referenced in any future final 

GHG PSD SIP approval and FIP 

rescission action EPA may take for 

Texas. 

2. EPA will retain the GHG PSD 

permitting authority for applicants with 

pending permits who fail to select a 

permitting authority by the deadline 

specified in the above referenced EPA 

letter to each permit applicant. 

3. EPA will retain GHG PSD 

permitting authority for issued permits 

for which either (a) the time for filing an 

administrative appeal has not expired or 

(b) all administrative and judicial 

appeal processes (including any 

associated remand action) have not been 

completed upon the signature date of 

any future EPA final action to approve 

TCEQ’s SIP submittal and rescind the 

GHG PSD FIP. In a letter dated January 

13, 2014, TCEQ requested approval to 

exercise its authority to administer the 

PSD program with respect to those 

sources that have final GHG PSD 

permits issued by EPA upon the 

effective date of the GHG PSD FIP 

rescission. This letter is available for 

review in the docket for this 

rulemaking. With respect to this 

transition process, a ‘‘final GHG PSD 

permit issued by EPA’’ is a permit 

where all final EPA actions have been 

taken and all administrative and judicial 

appeal opportunities have expired or 

processes have been concluded or 

completed. 

We note that as with any PSD permit 

application, an applicant may withdraw 

a pending application for any reason 

before the permit is issued. With respect 

to the permit applications for which 

EPA will retain permitting authority as 

specified in the transition process, 

EPA’s permitting authority will cease 

upon an applicant’s written request 

withdrawing the pending permit 

application before a final determination 

is made. 

For the permit applicants who elect to 

transfer to TCEQ for GHG PSD permit 

issuance, EPA will transfer the 

application, all related technical 

materials submitted by the applicant, 

the proposed draft permit and any 

comments received on the proposed 

draft permit to TCEQ. The TCEQ will 

require the applicant to comply with 

SIP-approved public notice rules. The 

applicant will either follow the current 

SIP-approved process of publishing a 

separate NORI and NAPD, or publish a 

combined NORI and NAPD notice 

pursuant to new proposed revisions at 

30 TAC Section 39.412. Further, 

pursuant to the Texas SIP, any 

comments submitted to EPA on the 

proposed draft permit must be 

resubmitted to the TCEQ during the 

TCEQ’s public comment period. EPA 

intends to identify on the EPA Region 

6 GHG Web site which applications 

with proposed draft permits have been 

transferred to TCEQ for issuance. EPA 

will endeavor to notify each commenter 

about the need to resubmit comments 

under the SIP-approved Texas public 

comment period provisions or the 

newly proposed revisions at 30 TAC 

Section 39.412. 

The TCEQ will assume full PSD 

responsibility for the administration and 

implementation of final GHG PSD 

permits issued by EPA upon notification 

from EPA that all administrative and 

judicial appeal processes have expired 

or have been completed or concluded 

(including any associated remand 

actions) for a specific permit or permit 

application. Assuming full PSD 

responsibility includes the authority to 

conduct general administration of these 

existing permits, authority to process 

and issue any and all subsequent PSD 

permit actions relating to such permits 

(e.g., amendments), and authority to 

enforce such permits. In the above 

referenced January 13, 2014, letter, the 

TCEQ explains that the provisions 

contained in element 1 of the Texas PSD 

Supplement (as adopted by the Texas 

Air Control Board on July 17, 1987) 

provide the TCEQ the authority to 

enforce all conditions of PSD permits 

issued for sources in Texas by EPA prior 

to full delegation of authority to 

implement the Texas PSD program. The 

TCEQ has affirmed that this provision 

continues to apply to the GHG PSD 

permits issued by EPA. Therefore, TCEQ 

has demonstrated it has the authority to 

administer EPA-issued GHG PSD 

permits. 

V. Proposed Action 

EPA has made the preliminary 

determination that the October 5, 2010, 

revisions to the Texas SIP that are part 

of this rulemaking are approvable 

because they are adopted and submitted 

in accordance with the CAA and EPA 

regulations regarding NSR permitting. 

EPA has made the preliminary 

determination that the December 2, 

2013, proposed revisions to the Texas 

SIP and request for parallel processing 

are in accordance with the CAA and 

EPA regulations regarding SIP 

development and GHG regulations. EPA 

invites the public to make comments on 

all aspects of the EPA proposed 

approval of the revisions to the Texas 

NSR SIP to provide for the regulation of 

GHG emissions and clarify the 

applicability of BACT for all PSD permit 

applications, and to submit comments 

by the date listed above. Therefore, 

under section 110 and part C of the Act, 

and for the reasons stated above, EPA 

proposes to approve the following 

revisions to the Texas SIP: 

• Substantive and non-substantive 

revisions to 30 TAC Section 116.111 

adopted on September 15, 2010, and 

submitted on October 5, 2010, to clarify 

the application of BACT to all PSD 

permit applications in the Texas NSR 

program; 

• Substantive and non-substantive 

revisions proposed October 23, 2013, 

and submitted for parallel processing on 

December 2, 2013, necessary to provide 

the TCEQ the authority to regulate GHG 

emissions under the Texas PSD 

Program: 

Æ Revisions to Public Notice 

requirements at 30 TAC Sections 

39.411(e)(11), (e)(15), (e)(16), (f)(4), 

(f)(8), 39.412(a)—(d), 39.419(e)(1), and 

39.420(e)(4). 

Æ Revisions to the entirety of the 

General Air Quality Definitions at 30 

TAC Sections 101.1. 

Æ Revisions to the Emission Inventory 

Requirements at 30 TAC Section 101.10. 

Æ Revisions to Emissions Event 

Reporting and Recordkeeping 

Requirements at 30 TAC Section 

101.201. 

Æ Revisions to the Permits by Rule 

Minor NSR program at 30 TAC Sections 

106.2 and 106.4. 

Æ Revisions to the Definitions for 

Texas NSR Permitting at 30 TAC 

Section 116.12. 

Æ Revisions to Permit Application 

provisions for Texas NSR Permitting at 

30 TAC Section 116.111. 

Æ Revisions to the Texas PSD 

Program at 30 TAC Section 116.160. 

Æ Proposed new 30 TAC Section 

116.164 to tailor the PSD thresholds for 

GHG permitting. 

Æ Proposed new 30 TAC Section 

116.169 to establish the transition 

process for GHG permitting. 

Æ Revisions to the Standard Permit 

Minor NSR program at 30 TAC Sections 

116.610 and 116.611. 

Æ Revisions to the definition of 

Potential to Emit at 30 TAC Section 

122.122. 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 32 / Tuesday, February 18, 2014 / Proposed Rules 9133 

Texas is subject to the FIP for PSD 

permitting of GHG emissions. This GHG 

PSD FIP remains in place and EPA 

remains the PSD permitting authority 

for GHG-emitting sources in Texas until 

EPA finalizes our proposed approval of 

the October 23, 2013, proposed 

revisions submitted for parallel 

processing on December 2, 2013, to the 

Texas SIP. Therefore, we propose that 

upon finalization of today’s action, EPA 

will rescind the GHG PSD FIP for Texas 

at 40 CFR 52.2305(a) and (b). However, 

as detailed in Sections IV.B.1–3 and our 

transition process, there are three 

limited possibilities for retained 

authority. First, EPA will retain GHG 

PSD permitting authority for any 

pending permit applications where the 

permit applicant has submitted a 

written request to remain with EPA for 

permit issuance. Second, EPA will 

retain GHG PSD permitting authority for 

any pending permit application where 

the applicant has not submitted a 

written request regarding permit 

authority, and EPA has made a 

proposed determination through a 

public noticed draft permit upon the 

signature date of EPA’s rescission of the 

GHG PSD FIP. EPA does not intend to 

retain any other authority over pending 

permit applications. Note, even for 

those cases where EPA announces it 

will retain permitting authority over an 

application, this authority will cease 

upon an applicant’s written request to 

EPA withdrawing the pending permit 

application before a final determination 

is made. Finally, EPA will retain GHG 

PSD permitting authority for any issued 

permit for which either the time for 

filing an administrative appeal has not 

expired or all administrative and 

judicial appeals processes have not been 

completed by the signature date of 

EPA’s final action to approve TCEQ’s 

SIP submittal. Texas is also subject to 

the FIP for PSD permitting for any other 

pollutants that become newly subject to 

regulation under the CAA after January 

2, 2011. We propose to find that the 

TCEQ has provided necessary and 

adequate assurances that the Texas PSD 

program will be revised in the future to 

address pollutants that become newly 

regulated under the CAA after January 

2, 2011, and that the TCEQ has the 

adequate authority under State law to 

regulate the new PSD pollutants. 

Therefore, we propose that upon 

finalization of today’s action, EPA will 

rescind the PSD FIP for Newly 

Regulated Pollutants for Texas at 40 

CFR 52.2305(c). 

EPA is severing and taking no action 

on the remainder of the October 5, 2010, 

SIP submittal for the adoption and 

implementation of the Texas Minor NSR 

Qualified Facilities Program. EPA is also 

severing and taking no action on the 

portions of the December 2, 2013, 

submittal concerning biomass GHG 

emissions at 30 TAC Section 

116.12(7)(B). The DC Circuit Court 

issued an order to vacate EPA’s Biomass 

Deferral Rule on July 12, 2013. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Clean Air 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 

proposes to approve 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, and incorporation by 

reference. 

Dated: February 4, 2014. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2014–03429 Filed 2–14–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2010–1055; FRL–9906–64– 

Region 6] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Mexico; Transportation Conformity 

and General Conformity Requirements 

for Bernalillo County 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

revisions to the New Mexico State 

Implementation Plan (SIP) at New 

Mexico Administrative Code 20.11.3 

and 20.11.4, concerning transportation 

conformity and general conformity rules 

for Bernalillo County, New Mexico. The 

plan revision is intended to ensure 

consistency with amendments to the 

federal Transportation Conformity Rule 

and the federal General Conformity 

Rule. These plan revisions meet 

statutory and regulatory requirements, 

and are consistent with EPA’s guidance. 

DATES: Written comments should be 

received on or before March 20, 2014. 

ADDRESSES: Please see the related direct 

final rule, which is located in the ‘‘Rules 

and Regulations’’ section of this Federal 

Register, for detailed instructions on 

how to submit comments. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Peace, Facility Assessment 

Section (6PD–A), Environmental 


emcdonald on DSK67QTVN1PROD with PROPOSALS