Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 81371 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG 2011–1038] 

Safety Zone; San Francisco New 

Year’s Eve Fireworks Display, San 

Francisco, CA 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

the safety zone for the annual San 

Francisco New Year’s Eve Fireworks 

Display in the Captain of the Port, San 

Francisco area of responsibility during 

the dates and times noted below. This 

action is necessary to protect life and 

property of the maritime public from the 

hazards associated with the fireworks 

display. During the enforcement period, 

unauthorized persons or vessels are 

prohibited from entering into, transiting 

through, or anchoring in the safety zone, 

unless authorized by the Patrol 

Commander (PATCOM). 

DATES: The regulations in 33 CFR 

165.1191 will be enforced from 11 a.m. 

on December 31, 2011 to 12:30 a.m. on 

January 1, 2012. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this notice, call 

or email Ensign William Hawn, U.S. 

Coast Guard Sector San Francisco; 

telephone (415) 399–7442 or email at 

D11-PF-MarineEvents@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

The Coast Guard will enforce a 100 

foot safety zone in the navigable waters 

around the fireworks barge off of Pier 50 

in position 37°46′28′′ N., 122°23′06′′ W. 

(NAD 83) from 11 a.m. on December 31, 

2011 until 11:55 p.m. on December 31, 

2011 during the loading, transit, and 

arrival of the fireworks barge to the 

display location off of Pier 2 in position 

37°47′42.6′′ N. 122°23′19.1′′ W. 

(NAD83). Upon the commencement of 

the fireworks display, scheduled to take 

place from 11:55 p.m. on December 31, 

2011 to 12:15 a.m. on January 1, 2012, 

the safety zone will increase in size and 

encompass the navigable waters 1,000 

feet around the display location near 

Pier 2 in position 37°47′42.6′′ N. 

122°23′19.1′′ W. (NAD83) for the annual 

San Francisco New Year’s Eve 

Fireworks Display in 33 CFR 165.1191. 

Under the provisions of 33 CFR 

165.1191, unauthorized persons or 

vessels are prohibited from entering 

into, transiting through, or anchoring in 

the safety zone during all applicable 

effective dates and times, unless 

authorized to do so by the PATCOM. 

Additionally, each person who receives 

notice of a lawful order or direction 

issued by an official patrol vessel shall 

obey the order or direction. 

The PATCOM is empowered to forbid 

entry into and control the regulated 

area. The PATCOM shall be designated 

by the Commander, Coast Guard Sector 

San Francisco. The PATCOM may, upon 

request, allow the transit of commercial 

vessels through regulated areas when it 

is safe to do so. 

This notice is issued under authority 

of 33 CFR 165.1191 and 5 U.S.C. 552(a). 

In addition to this notice in the Federal 

Register, the Coast Guard will provide 

the maritime community with extensive 

advance notification of the safety zone 

and its enforcement period via the Local 

Notice to Mariners. 

If the Captain of the Port determines 

that the regulated area need not be 

enforced for the full duration stated in 

this notice, a Broadcast Notice to 

Mariners may be used to grant general 

permission to enter the regulated area. 

Dated: December 8, 2011. 

Cynthia L. Stowe, 

Captain, U.S. Coast Guard, Captain of the 

Port San Francisco. 

[FR Doc. 2011–33234 Filed 12–27–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2008–0638; FRL–9613–7] 

Approval and Disapproval and 

Promulgation of Implementation Plans; 

Texas; Infrastructure and Interstate 

Transport Requirements for the 1997 

Ozone and the 1997 and 2006 PM2.5

NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is partially 

approving and partially disapproving 

submittals from the state of Texas 

pursuant to the Clean Air Act (CAA or 

Act) that address the infrastructure 

elements specified in the CAA section 

110(a)(2), necessary to implement, 

maintain, and enforce the 1997 8-hour 

ozone and 1997 and 2006 fine 

particulate matter (PM2.5) national 

ambient air quality standards (NAAQS 

or standards). We are determining that 

the current Texas State Implementation 

Plan (SIP) meets the infrastructure 

requirements for the 1997 8-hour ozone 

and the 1997 and 2006 PM 2.5 NAAQS 

at 110(a)(2)(A), (B), (E), (F), (G), (H), (K), 

(L), (M), and portions of (C), (D)(ii) and 

(J). We are determining that the current 

Texas SIP does not meet the 

infrastructure requirements for the 1997 

8-hour ozone and the 1997 and 2006 

PM2.5 NAAQS at 110(a)(2) for portions 

of (C), (D)(ii) and (J). The EPA is also 

partially approving and partially 

disapproving SIP revisions submitted by 

the state of Texas for the purpose of 

addressing the provisions of CAA 

section 110(a)(2)(D)(i) for the 1997 8- 

hour ozone NAAQS and the 1997 and 

2006 PM2.5 NAAQS. These SIP revisions 

address the requirement that the Texas 

SIP have adequate provisions to prohibit 

air emissions from adversely affecting 

another state’s air quality through 

interstate transport. The EPA is partially 

approving and partially disapproving 

the provisions of these SIP submissions 

that emissions from sources in Texas do 

not interfere with measures required in 

the SIP of any other state under part C 

of the CAA to prevent significant 

deterioration of air quality, with regard 

to the 1997 8-hour ozone NAAQS and 

the 1997 and 2006 PM2.5 NAAQS. The 

partial disapprovals herein are because 

Texas has stated it cannot issue permits 

for and does not intend to regulate 

greenhouse gas (GHG) emissions. The 

EPA is also approving SIP revisions that 

modify the Texas SIP for Prevention of 

Significant Deterioration (PSD) to 

include nitrogen oxides (NOX) as an 

ozone precursor. This action is being 

taken under section 110 and part C of 

the Act. 

DATES: This rule is effective on January 

27, 2012. 

ADDRESSES: The EPA established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2008–0638. All 

documents in the docket are listed at 

www.regulations.gov. Although listed in 

the index, some information is not 

publicly available, e.g., Confidential 

Business Information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 Freedom of 

Information Act (FOIA) Review Room 

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

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81372 Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 

1The specific submittals and our actions are 

detailed in Section II of this rulemaking. 

2By severable, we mean that the portions of the 

SIP revision that address NOX as a precursor can 

be implemented independently of the remaining 

portions of the submittal, without affecting the 

stringency of the submitted rules. In addition, the 

remaining portions of the submittal are not 

necessary for approval of the provisions addressing 

NOX as a precursor. 

3As noted in the proposed rulemaking for this 

action, the May 1, 2008 submittal addresses the 

1997 ozone and PM2.5 standards; it does not address 

the 2006 PM2.5 standard. The November 23, 2009 

submittal addresses the 110(a)(2) infrastructure and 

interstate transport elements for the 2006 PM2.5

NAAQS. 

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. Please make the 

appointment at least two working days 

in advance of your visit. There is a fee 

of 15 cents per page 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. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Carrie Paige, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733; 

telephone (214) 665–6521; fax number 

(214) 665–7263; email address 

paige.carrie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means the EPA. 

Table of Contents 

I. Background 

II. What action is the EPA taking? 

A. What is the EPA approving in this action? 

B. What is the EPA disapproving in this 

action? 

III. Comments 

A. What comments did the EPA receive on 

the September 22, 2011 action for Texas? 

B. General Format 

C. Comments That Address the 

Consideration of Existing SIP Provisions 

D. Comments That Address 

Implementation Issues 

E. Comments That Address Greenhouse 

Gases (GHGs) 

F. Comments That Address Section 

110(a)(2)(E) 

G. Comments That Address Sections 

110(a)(2)(B) and 110(a)(2)(J) 

H. Comments That Address Best Available 

Control Technology (BACT) 

I. Comments That Address Regulation of 

PM2.5

J. Comments That Address Single Source 

Ozone Modeling 

K. Comments That Address Cumulative Air 

Quality Impacts 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

The background for today’s action is 

discussed in detail in our September 22, 

2011 proposal to partially approve and 

partially disapprove revisions 1 to the 

Texas SIP (76 FR 58748). In that action, 

we proposed to partially approve and 

partially disapprove the current Texas 

SIP for meeting the provisions of the 

CAA sections 110(a)(1) and 110(a)(2) 

(i.e., 110(a)(2)(A)–(C), (D)(ii), (E)–(H), 

and (J)–(M)) for the 1997 ozone and the 

1997 and 2006 PM2.5 NAAQS. We also 

proposed to approve severable 2

portions of revisions to the Texas PSD 

SIP that address NOX as a precursor to 

ozone, submitted by the TCEQ to the 

EPA on March 11, 2011 and May 26, 

2011. 

Our September 22, 2011 proposal 

provides a detailed description of the 

revisions and the rationale for the EPA’s 

proposed actions, together with a 

discussion of the opportunity to 

comment. The public comment period 

for these actions closed on October 24, 

2011. See the Technical Support 

Document (TSD) and our proposed 

rulemaking at 76 FR 58748 for more 

information. 

II. What action is the EPA taking? 

The EPA is partially approving and 

partially disapproving submittals from 

the state of Texas pursuant to the CAA 

that address the infrastructure elements 

specified in section 110(a)(2) of the Act, 

necessary to implement, maintain, and 

enforce the 1997 8-hour ozone and 1997 

and 2006 PM2.5 standards. 

A. What is the EPA approving in this 

action? 

The EPA is approving portions of the 

December 12, 2007; March 11, 2008; 

April 4, 2008; and November 23, 2009 

submissions from Texas, determining 

that the following section 110(a)(2) 

elements are contained in the current 

Texas SIP and provide the infrastructure 

for implementing the 1997 ozone and 

1997 and 2006 PM2.5 standards: 

Emission limits and other control 

measures (section 110(a)(2)(A)); ambient 

air quality monitoring/data system 

(section 110(a)(2)(B)); the program for 

enforcement of control measures, except 

for the portion that addresses GHGs 

(section 110(a)(2)(C)); international and 

interstate pollution abatement, except 

for the portion that addresses GHGs 

(section 110(a)(2)(D)(ii)); adequate 

resources (section 110(a)(2)(E)); 

stationary source monitoring system 

(section 110(a)(2)(F)); emergency power 

(section 110(a)(2)(G)); future SIP 

revisions (section 110(a)(2)(H)); 

consultation with government officials 

(section 110(a)(2)(J)); public notification 

(section 110(a)(2)(J)); PSD and visibility 

protection, except for the PSD portion 

that addresses GHGs (section 

110(a)(2)(J)); air quality modeling/data 

(section 110(a)(2)(K)); permitting fees 

(section 110(a)(2)(L)); and consultation/ 

participation by affected local entities 

(section 110(a)(2)(M)). 

We are also approving portions of the 

May 1, 2008 (Texas Interstate Transport 

SIP) and the November 23, 2009 

submissions from Texas, demonstrating 

that Texas has adequately addressed one 

of the four required elements (or prongs) 

of the CAA section 110(a)(2)(D)(i), the 

element that requires that the SIP 

prohibit air emissions from sources 

within a state from interfering with 

measures required to prevent significant 

deterioration of air quality in any other 

state.3 We are determining that 

emissions from sources in Texas do not 

interfere with measures to prevent 

significant deterioration of air quality in 

any other state for the 1997 8-hour 

ozone NAAQS or the 1997 and 2006 

PM2.5 NAAQS (CAA section 

110(a)(2)(D)(i)(II)), except for the 

portions that address GHGs. We are not 

addressing the three remaining prongs 

of section 110(a)(2)(D)(i) for the 1997 8- 

hour ozone and 1997 and 2006 PM2.5

NAAQS, that pertain to prohibiting air 

emissions within Texas from: (1) 

Significantly contributing to 

nonattainment in any other state, (2) 

interfering with maintenance of the 

relevant NAAQS in any other state and 

(3) interfering with measures required to 

protect visibility in any other state. We 

will take action on the three remaining 

prongs of section 110(a)(2)(D)(i) for 

these three NAAQS, which addresses 

interstate transport, in separate 

rulemakings. 

In conjunction with our finding that 

the Texas SIP meets the section 

110(a)(1) and (2) infrastructure and 

interstate transport SIP elements listed 

above for the three NAAQS, we are also 

approving severable portions of the SIP 

revisions submitted by the TCEQ to the 

EPA on March 11, 2011 and a correction 

submitted on May 26, 2011. These 

portions address revisions to 30 TAC 

sections 101.1 and 116.12. The revisions 

to 116.12 add PSD to the title of the 

section, such that the section will 

address Nonattainment and Prevention 

of Significant Deterioration Review 

Definitions and thus provide that NOX

is an ozone precursor for the PSD 

program; and add the definition of 

Federally Regulated NSR Pollutant, 

which identifies volatile organic 

compounds (VOCs) and NOX as 

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Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 81373 

4See 76 FR 58750–53. 

precursors in all attainment and 

unclassifiable areas. Thus, the 

definitions for Major stationary source, 

Major modification, and the table 

identifying the Significant Level for 

emission thresholds for major sources 

and major modifications apply under 

PSD. These revisions addressing PSD 

also specify that a major source that is 

major for VOCs or NOX shall be 

considered major for ozone and provide 

that the significant emission threshold 

for ozone (identified as VOC, NOX) is 40 

tons per year (tpy). The EPA intends to 

act on the remaining Texas New Source 

Review (NSR) SIP revisions at a later 

date. The inclusion of these 

requirements in the SIP means that 

Texas has met the requirement to treat 

NOX as a precursor for ozone as 

necessary to implement the 1997 ozone 

standard. 

B. What is the EPA Disapproving in this 

Action? 

We are determining that portions of 

three section 110(a)(2) elements are not 

contained in the current Texas SIP and 

thus do not provide the infrastructure 

for implementing the 1997 ozone and 

1997 and 2006 PM2.5 standards. We are 

therefore disapproving portions of the 

December 12, 2007; March 11, 2008; 

April 4, 2008; and November 23, 2009 

submissions from Texas, and 

determining that the current Texas SIP 

does not meet the infrastructure 

requirements for the 1997 8-hour ozone 

and the 1997 and 2006 PM2.5 NAAQS at 

110(a)(2) for portions of (C), (D)(ii) and 

(J) because Texas has stated it cannot 

issue permits for and does not intend to 

regulate greenhouse gas (GHG) 

emissions. 

We are also disapproving the portion 

of the Texas Interstate Transport SIP 

element that prohibits GHG emissions 

from sources within Texas from 

interfering with measures required to 

prevent significant deterioration of air 

quality in any other state (section 

110(a)(2)(D)(i)). 

For the disapproved infrastructure 

elements (the portions of section 

110(a)(2)(C), section 110(a)(2)(D)(ii), and 

section 110(a)(2)(J) described in this 

section), the EPA remains obligated to 

implement a FIP at the same time the 

disapproval is finalized. The EPA’s 

disapproval here, however, does not 

engender an additional statutory 

obligation, because the EPA has already 

promulgated a FIP for the Texas PSD 

program to address permitting GHGs at 

or above the Tailoring Rule thresholds 

(76 FR 25178). As noted earlier, we will 

take action on the remaining three 

prongs of section 110(a)(2)(D)(i), which 

addresses interstate transport, in a 

separate rulemaking. 

III. Comments 

A. What comments did the EPA receive 

on the September 22, 2011 action for 

Texas? 

We received five comment letters on 

the proposed rulemaking. These 

comments are available for review in the 

docket for this rulemaking. The 

comment letters came from the 

following sources: 

1. October 24, 2011 letter from Gabriel 

Clark-Leach, for Environmental Integrity 

Project and on behalf of Public Citizen 

and the Sustainable Energy and 

Economic Development (SEED) 

Coalition. 

2. October 24, 2011 letter from 

Tangela Niemann, Texas Commission 

on Environmental Quality. 

3. October 24, 2011 letter from 

Matthew G. Paulson, Baker Botts for the 

BCCA Appeal Group. 

4. October 24, 2011 letter from 

Matthew G. Paulson, Baker Botts for the 

Texas Industry Project. 

5. October 24, 2011 letter from Elena 

Saxonhouse, for Sierra Club and on 

behalf of its members in Texas and 

states downwind of Texas, such as 

Arkansas, Louisiana and Oklahoma. 

B. General Format 

Our responses to comments (RTCs) 

received follow a general format of 

summarizing the comment or group of 

similar comments, and then providing 

our response to that particular summary 

of comments. Thus the general format 

provided herein is ‘‘Comment’’ and then 

‘‘Response.’’ The RTCs in Sections III– 

C and D however, do not follow the 

general format, but still provide a 

summary of the comments with our 

responses. 

C. Comments That Address the 

Consideration of Existing SIP Provisions 

Two commenters objected generally 

to the EPA’s statements in the proposal 

concerning substantive issues the 

Agency considers outside the scope of 

actions on infrastructure SIP 

submissions. In the proposal, the EPA 

explained that in the context of acting 

upon the infrastructure SIP submissions 

required by section 110(a)(1) and (2), the 

Agency must determine what 

substantive issues states and the EPA 

need to address in this specific type of 

SIP submission. In particular, the EPA 

noted four substantive issues that may 

exist in the previously existing SIPs that 

the Agency wanted to be clear were not 

among the issues that states and the 

EPA are addressing in actions on 

infrastructure SIPs: (i) Start-up, shutdown, malfunction (SSM) provisions; 

(ii) director’s discretion provisions; (iii) 

minor source NSR provisions; and (iv) 

NSR Reform related provisions.4

One commenter expressed that it was 

‘‘not sympathetic’’ to the EPA’s 

assertion that an action on an 

infrastructure SIP is ‘‘not the 

appropriate time and place to address 

all potential existing SIP problems.’’ 

Instead, the commenter argued that the 

EPA’s position that it could act on 

‘‘deficient’’ portions of the existing SIP 

at another time through more 

appropriate statutory mechanisms is 

inconsistent with the requirements of 

section 110(a)(2), and with section 

110(k)(3). The commenter noted that the 

latter provision of the CAA only 

contemplates a partial EPA approval of 

a state’s SIP submission if that part 

‘‘meets all the applicable requirements.’’ 

The EPA disagrees with the premise 

of the commenter that the Agency must 

address all possible substantive issues 

in existing SIPs in the context of acting 

on an infrastructure SIP submission, 

whether in a full or partial approval. As 

explained in the proposal, the EPA 

considers action on the infrastructure 

SIP submissions required by section 

110(a)(1) and (2) to be an exercise to 

assure that a state’s SIP meets the basic 

structural requirements for the new or 

revised NAAQS, not a time to address 

all potential defects in existing SIP 

provisions. The EPA believes this 

approach is permissible under the 

statute because the individual 

provisions of section 110(a)(2) are 

worded in ways that require 

interpretation and do not explicitly 

require that the EPA address certain 

issues in existing SIPs that the EPA 

identified in the proposal. 

Moreover, the commenter’s reference 

to section 110(k)(3) as permitting a 

partial approval only when the part 

approved ‘‘meets all applicable 

requirements’’ suggests that the 

commenter believes either that the EPA 

is deferring action on issues that are 

integral to action on an infrastructure 

SIP, or alternatively that the EPA is 

approving the infrastructure SIP with 

respect to the substantive issues in the 

existing SIP that the EPA explicitly 

indicated it was not acting upon. In 

either case, the EPA believes that the 

commenter is mistaken on this point. As 

explained in more detail in the 

proposal, the EPA specifically noted 

certain issues that it considers outside 

the scope of an action on an 

infrastructure SIP as required by section 

110(a)(1) and (2), and explained the 

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81374 Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 

statutory basis for this position. 

Therefore, the EPA does not agree that 

it is deferring action on substantive 

issues that are integral to acting on an 

infrastructure SIP, e.g., the EPA does not 

agree that it is necessary to address 

existing SSM provisions already in the 

SIP in the context of acting on an 

infrastructure SIP submission. As the 

EPA also explained in the proposal, the 

agency intentionally highlighted 

specific substantive issues that it 

considers outside the scope of an action 

on an infrastructure SIP because it did 

‘‘not want states, regulated entities, or 

members of the public to be under the 

misconception that the Agency’s 

approval of the infrastructure SIP 

submission of a given state should be 

interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state.’’ 76 FR 58750. In other words, the 

EPA’s approval of the state’s 

infrastructure SIP should not be viewed 

as approving an existing deficient 

provision in the state’s SIP, such as an 

exemption for excess emissions during 

SSM events that does not meet CAA 

requirements. To the contrary, the EPA 

explicitly noted that if there were 

problematic provisions in the state’s 

existing SIP with respect to the four 

issues identified as outside the scope of 

action on an infrastructure SIP, the EPA 

may elect to deal with those issues 

separately in another action. 

The other commenter likewise 

objected in general to the EPA’s view 

that certain substantive issues are 

beyond the scope of an action on an 

infrastructure SIP, but also critiqued the 

specific explanations and rationale 

provided by the EPA for its position in 

the proposal. The commenter raised 

four specific arguments in response to 

the EPA’s reasoning: (1) The existence 

of other tools to rectify SIP deficiencies 

does not make an infrastructure SIP 

approvable; (2) a SIP cannot meet ‘‘basic 

structure’’ requirements if it contains 

known deficiencies; (3) it may not be 

possible to review every provision of a 

SIP in acting on an infrastructure SIP, 

but the EPA has to consider any issues 

that commenters bring to the EPA’s 

attention; and (4) the EPA action on a 

state SIP submission that relies on 

existing SIP provisions combined with 

the Agency’s decision not to examine 

certain types of deficiencies in the 

existing SIP provisions ‘‘deprives the 

public of any opportunity to comment 

upon or challenge the submissions.’’ We 

will address these concerns in turn. 

First, the commenter argued that the 

mere existence of other statutory tools, 

such as a section 110(k)(5) SIP call, to 

address SIP deficiencies ‘‘has no 

bearing’’ on the fundamental question of 

whether the EPA should approve a 

state’s infrastructure SIP submission if 

the underlying SIP contains any 

deficiencies. The commenter reasoned 

that the ability of the EPA to use section 

110(k)(5) to rectify a problem does not 

mean that the EPA should not address 

the problem when acting on an 

infrastructure SIP for a new or revised 

NAAQS. Indeed, the commenter asserts 

that if the existing provisions in a SIP 

could be the basis for a section 110(k)(5) 

SIP call, then those issues ‘‘should be 

addressed during the SIP approval 

process for the new NAAQS.’’ 

The EPA agrees that the mere 

existence of other statutory tools to 

address SIP deficiencies, such as a 

section 110(k)(5) SIP call, does not per 

se answer the question of whether the 

EPA must address all potential existing 

SIP deficiencies in the context of acting 

on a state’s infrastructure SIP 

submission. However, the EPA did not 

make such an argument in the proposal. 

The EPA’s point in noting the existence 

of other statutory tools to address 

existing SIP deficiencies was merely 

that the availability of these tools 

supported the EPA’s reasonable reading 

of section 110(a)(2) as not requiring that 

any and all possible issues in the 

existing SIP be addressed in the context 

of acting on an infrastructure SIP 

submittal, when those issues are not 

explicitly among those that must be 

addressed in this context. As explained 

in more detail in the proposal, the EPA 

believes that the provisions of section 

110(a)(2) are in some cases ambiguous 

and it is necessary to interpret what 

they require in the specific context of 

the infrastructure SIP as contemplated 

in section 110(a)(1). The EPA pointed to 

other statutory tools such as a section 

110(k)(5) SIP call as support for its 

reading of the statute that permits the 

EPA to address existing SIP deficiencies 

outside of an action on an infrastructure 

SIP, because Congress provided other 

mechanisms for the EPA to use as 

appropriate for such problems. To 

reiterate, the EPA believes that even 

though it is not necessary to address a 

particular issue while acting on an 

infrastructure SIP submission, it should 

not be viewed as precluding the EPA 

from separately exercising other 

authority such as section 110(k)(5) to 

address any existing deficiency in the 

SIP. Thus the EPA indicated that it may 

take steps to address such problems via 

a SIP call or other means. 

Second, the commenter disagreed 

with the EPA’s view that a state could 

meet basic structural requirements for a 

SIP even if there may be potential 

deficiencies in the existing SIP. The 

commenter focused in particular on the 

description of the deficiencies as merely 

‘‘potential’’ deficiencies and asserted 

that the EPA cannot acknowledge 

deficiencies and nevertheless approve 

the infrastructure SIP submission as 

meeting the requirements of section 

110(a). According to the commenter, 

there is ‘‘no ‘basic structure’ 

requirement in Section 110(a)’’ and that 

if there were such a requirement the 

EPA must evaluate the basic structure of 

the state’s SIP ‘‘as it actually exists.’’ 

With respect to this point, the EPA 

disagrees with the commenter’s view 

that the specific SIP submission 

required in section 110(a)(1) and (2) 

within three years after the 

promulgation of a new or revised 

NAAQS is not intended to be a 

submission directed at basic structural 

requirements for a SIP. The commenter 

can take issue with the EPA’s 

characterization or terminology when 

the agency refers to ‘‘basic structure’’ 

requirements, but the fact remains that 

the agency has to evaluate whether the 

SIP submission in question meets the 

various requirements of section 

110(a)(2), as applicable, in this specific 

type of SIP submission. 

As the EPA articulated in the 

proposal, the various elements of 

section 110(a)(2) address a host of 

different issues, some of which entail 

legal authority requirements, some of 

which entail substantive requirements, 

and some of which entail both. Many of 

the elements of section 110(a)(2) are 

ambiguous with respect to what they 

require in the context of an 

infrastructure SIP. In order to act on the 

infrastructure SIP, the EPA has to 

interpret the provisions of section 

110(a)(2) to ascertain which of those 

provisions apply to this specific type of 

SIP submission, and how they apply. 

The commenter objected to the EPA’s 

approach, but did not support its 

contentions with specific arguments 

based upon the actual wording of 

section 110(a)(2), nor did the 

commenter explain how or why it 

disagreed with the interpretation of the 

statutory language provided by the EPA 

in the proposal. Having had to 

determine which issues are properly 

within the scope of an action on an 

infrastructure SIP, for informational 

purposes the EPA sought to make clear 

that its action should not be construed 

as reapproving existing provisions of 

certain types because the EPA considers 

those issues that may be dealt with 

separately. The EPA did not, therefore, 

determine definitively whether the 

state’s existing SIP contained any of 

these types of provisions that may be 

deficiencies, hence the agency referred 

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Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 81375 

to any such provisions as ‘‘potential’’ 

deficiencies. Contrary to the 

commenter’s view, the EPA believes it 

is appropriate to refer to any such 

provisions as potential deficiencies, 

until such time that the EPA can 

undertake the requisite analysis and 

undergo the proper procedures to 

establish that any such provisions are in 

fact inconsistent with the requirements 

of the CAA. 

Third, the commenter objected to the 

EPA’s statement that it is reasonable to 

defer action on a deficient provision in 

an existing SIP because it is not possible 

‘‘for [the] EPA to consider whether 

every provision of every SIP in every 

state meets the current requirements of 

the federal Clean Air Act.’’ The 

commenter asserted that it was not 

asking the EPA ‘‘to evaluate every word 

of the Texas SIP,’’ but rather that it 

believes that the EPA must evaluate the 

SIP for the four substantive issues that 

the Agency concluded were outside the 

scope of infrastructure SIP actions as 

well as any other substantive issue that 

the commenter brings to the EPA’s 

attention in this rulemaking context. 

With respect to this point, the EPA 

believes that the commenter 

misunderstood the reason that the 

Agency stated that it is not required to 

review SIPs for all possible existing 

deficiencies when evaluating an 

infrastructure SIP submission, including 

any related to the four issues 

specifically identified in the proposal. 

The EPA noted this practical point as 

part of explaining its view that where 

the specific requirements of the 

provisions of section 110(a)(2) are 

ambiguous, it is appropriate for the EPA 

to interpret the statute in a way that 

makes logical and feasible sense. Thus, 

for example, because the provisions of 

section 110(a)(2) do not explicitly 

provide that the SIP submission 

required by section 110(a)(1) after the 

promulgation of a new or revised 

NAAQS must rectify any and all 

potential substantive issues concerning 

any pre-existing SSM provisions in the 

state’s SIP, the EPA concluded that it 

was reasonable to interpret the statute as 

not requiring the EPA to address that 

issue in this specific action on an 

infrastructure SIP submission. The SSM 

issue in and of itself is complex and 

could take substantial time and 

resources by both the state and EPA to 

identify, evaluate, and address as 

necessary any such provisions. 

Rather than a basic structural SIP 

requirement for a new or revised 

NAAQS, such as having state law 

authority to carry out the SIP, an 

overarching permitting program in 

place, or a monitoring network 

deployed, such an SSM issue might 

arise in the context of an individual 

existing emission limit that might apply 

only to a small number of sources of a 

certain type as part of the nonattainment 

area plan for a particular geographic 

area within the state. The EPA does not 

disagree that such a provision might be 

problematic in and of itself and that 

once examined through the appropriate 

mechanisms could prove to be 

inconsistent with the CAA and EPA’s 

policy guidance on excess emissions. 

However, such a provision could be but 

one substantive issue among many in 

the existing SIP for which in depth 

analysis as part of the action on an 

infrastructure SIP is not practicable. To 

attempt to do such an analysis in this 

action would detract from the larger 

exercise to assure that the state SIP 

meets basic structural requirements for 

a new or revised NAAQS. 

The EPA agrees that where the 

specific provisions of section 110(a)(2) 

clearly indicate that the EPA should 

evaluate a state’s infrastructure SIP 

submission with respect to a given 

issue, the EPA must do so. Thus, the 

EPA has evaluated the state’s 

submission on an element by element 

basis in the proposal, and explained 

why the agency believes that the state 

has or has not met the various 

individual requirements of section 

110(a)(2), as applicable and as the EPA 

interprets them. For example, the EPA 

explained in detail why the agency 

believes that the state has adequately 

complied with section 110(a)(2)(A) 

concerning enforceable emissions limits 

and other control measures; section 

110(a)(2)(B) concerning air quality 

monitoring. By contrast, the EPA 

explained in detail why the agency 

believes that the state has not met the 

requirements of a component of section 

110(a)(2)(C) with respect to permitting 

new or modified sources for all federally 

regulated pollutants including GHGs. It 

does not follow, however, that the 

specific provisions of section 110(a)(2) 

require the EPA to address any and all 

issues within the existing SIP in the 

context of acting on an infrastructure 

SIP submission, and the EPA has noted 

four such substantive issues that it 

believes are outside the scope of this 

exercise as explained in more detail in 

the proposal. 

Where commenters raise concerns 

with a state’s compliance with an 

element of section 110(a)(2) that the 

EPA agrees is germane to the 

infrastructure SIP, the EPA is 

responding to those comments 

separately in this action. 

Fourth, the commenter opposed the 

EPA’s view that some substantive issues 

should be addressed separately from 

action on the infrastructure SIP on the 

grounds that this approach would 

deprive the public from any opportunity 

to comment upon or challenge the 

state’s submission. The commenter 

evidently believes that because the 

state’s infrastructure SIP submission did 

not include new provisions and merely 

confirmed how the existing SIP meets 

the applicable requirements of section 

110(a)(2) that this precluded any 

comment on the merits of the state’s 

submission. 

The EPA shares the commenter’s 

concern with adequate public process 

and opportunity to comment on a state’s 

infrastructure SIP submission. In this 

context, however, the EPA disagrees 

with the commenter’s implication that 

the EPA should address any and all 

possible issues relating to the existing 

SIP in any action on a pending SIP 

submittal. First, the mere fact that the 

state’s infrastructure SIP submission 

does not include actual revisions to the 

existing EPA-approved SIP does not 

alter the fact that it is a SIP submission 

and therefore its contents are subject to 

notice and comment, to the extent that 

the issues raised are germane to the 

action in question. To the extent that an 

issue is applicable in the context of the 

infrastructure SIP submission, the EPA 

itself is scrutinizing the content of the 

submission for compliance with the 

CAA, and when the Agency proposes 

action on the submission it is providing 

notice and inviting public comment on 

its proposed action. This does not 

automatically mean, however, that it is 

appropriate for the EPA to address, and 

for the public to comment upon, all 

possible substantive issues relating to 

the existing SIP beyond those that the 

EPA interprets as applicable for 

evaluation in the context of this specific 

type of SIP submission. The same 

principle, applied more precisely to the 

actual submission at hand, suggests that 

it is reasonable for the EPA to determine 

that certain substantive issues are 

outside the scope of the infrastructure 

SIP process and may be assessed 

separately in another context. This 

decision does not foreclose public 

comment on such issues, it merely 

indicates that public comment on such 

issues should occur at the point when 

the EPA is taking an action that more 

appropriately addresses the specific 

issue. 

Additionally, the EPA notes that 

although the Texas infrastructure SIP 

submission was comprised of the state’s 

explanations of why the state believes 

its existing SIP meets the applicable 

requirements of section 110(a)(2), that 

approach has not precluded public 

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81376 Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 

5The PBR rules were approved into the Texas SIP 

at 68 FR 64543, November 14, 2003. The alterations 

rules were approved into the Texas SIP at 67 FR 

58697, September 18, 2002. 

comment on the relevant issues. The 

commenter’s own comments illustrate 

that this process affords the public an 

opportunity to comment on the EPA’s 

proposed action on the infrastructure 

SIP submission. Where those comments 

raise concerns about issues properly 

within the scope of an action on an 

infrastructure SIP, the EPA is evaluating 

those comments as part of this action. 

Finally, one commenter more 

specifically objects to the EPA’s 

evaluation of the state’s infrastructure 

SIP submissions with respect to the 

minor NSR permitting program in 

Texas. The commenter expresses 

concern that the state has ‘‘failed to 

implement its minor source NSR 

program in a way that complies with 

federal requirements’’ and claims that 

‘‘because Texas’s failures undermine its 

ability to implement, maintain, and 

enforce the new NAAQS, [the] EPA’s 

action on Texas’s submissions fails to 

comply with the clear and unambiguous 

requirements of section 110(a)(2)(C).’’ 

As further explanation of its concerns, 

the commenter contends in more 

detailed comments that the ‘‘Permit by 

Rule’’ (PBR) provisions in the Texas SIP 

must be limited to narrowly defined 

source categories and include a 

mechanism for pre-construction 

application and agency review. Another 

commenter echoes these statements, and 

additionally contends the PBR 

provisions do not allow for adequate 

public participation. According to the 

commenters, these concerns preclude 

the EPA approving the state’s 

infrastructure SIP submissions. 

Additionally, the commenters contend 

another component of Texas’s SIPapproved minor NSR program, permit 

‘‘alterations,’’ fails to meet the 

requirements of section 110(a)(2). One 

commenter states the alterations rules 

interfere with NAAQS attainment 

strategies, fail to prevent circumvention 

of NSR permitting requirements for 

major stationary sources, and 

undermine public participation in the 

permitting process. Another commenter 

also states the alteration provisions 

violate 40 CFR part 51 notice 

requirements, fail to provide adequate 

mechanisms for denial for cause, and 

fail to protect the NAAQS. 

The EPA disagrees with the 

commenter’s view that concerns with 

certain components of the minor NSR 

program in the Texas SIP preclude 

approval of the state’s infrastructure SIP 

submissions for the ozone and PM2.5

NAAQS. In the case of the minor NSR 

permitting requirements for a SIP, the 

EPA agrees that section 110(a)(2)(C) 

provides the general statutory basis for 

this program and for the agency’s 

regulations that govern such programs. 

However, in the proposal and in this 

response, the EPA explains that the EPA 

considers action on the infrastructure 

SIP submissions required by section 

110(a)(1) and (2) to be an exercise to 

assure that a state’s SIP meets the basic 

structural requirements for the new or 

revised NAAQS, not a time to address 

all potential substantive defects, or 

alleged defects, in existing SIP 

provisions Therefore, EPA considers an 

evaluation of any component of a state’s 

existing minor NSR program to be 

outside the scope of an infrastructure 

SIP review rather than an unambiguous 

requirement of the EPA’s action on an 

infrastructure SIP with regard to section 

110(a)(2)(C). The specific concerns the 

commenters raise are over the PBR and 

alterations rules, which were approved 

into the Texas SIP as components of the 

minor NSR program.5 Because an action 

upon an infrastructure SIP is not the 

correct place to evaluate the 

commenter’s specific substantive 

concerns about existing components of 

the state’s minor NSR program that the 

commenters consider defective, the EPA 

will not address those concerns at this 

time. As with the other substantive 

issues that the EPA determined to be 

outside the scope of infrastructure SIP 

actions, the EPA notes that the CAA 

provides other mechanisms to address 

existing substantive deficiencies in SIPs, 

including potential deficiencies with a 

state’s minor NSR program. 

D. Comments That Address 

Implementation Issues 

Comment: One commenter states that 

if provisions in Texas’s existing SIP are 

facially deficient, or if the EPA is aware 

of the state’s inadequate implementation 

of facially sufficient SIP-approved 

provisions, then the submitted 

infrastructure SIP is also deficient with 

respect to section 110(a)(2) requirements 

for the relevant NAAQS. The 

commenter states the EPA is aware of 

Texas’s inadequate implementation of 

the SIP, and posits the EPA does not 

have discretion to approve Texas’s 

infrastructure SIP if there is improper 

implementation of the existing SIP or 

deficiencies in the existing SIP. 

Response: The EPA agrees with the 

commenter that facial deficiencies in 

SIP provisions could preclude the EPA 

from approving an infrastructure SIP 

submittal that relies on those 

provisions. The commenter’s statements 

highlight an important issue concerning 

the distinction between a state’s SIP 

meeting the requirements of the CAA on 

its face (i.e., facial sufficiency of the SIP) 

and a state’s actual compliance with 

those SIP requirements (i.e., adequacy of 

implementation of the SIP), and the 

question of when implementation 

concerns should be considered an issue 

in the context of acting on a state’s 

infrastructure SIP. 

However, it is important to note as 

explained in our previous response to 

comment under B, the EPA is not 

evaluating potential deficiencies for 

substantive issues it has determined to 

be outside the scope of action on an 

infrastructure SIP. Because the EPA has 

determined certain substantive issues to 

be outside the scope of action on an 

infrastructure SIP, the EPA accordingly 

is not evaluating those provisions for 

facial sufficiency. For the EPA’s action 

on submitted provisions it has 

determined to appropriately be within 

the scope of an infrastructure SIP, the 

EPA has evaluated whether the SIP 

provisions identified or submitted by 

the state as part of that submission are 

facially sufficient to meet the applicable 

requirements of section 110(a)(2) of the 

CAA. In its analysis of the state’s 

infrastructure SIP submission, the EPA 

evaluated the provisions submitted 

within the scope of the infrastructure 

SIP for facial sufficiency against the 

relevant elements of section 110(a)(2). In 

the proposal, the EPA explicitly 

evaluated the state’s submission on a 

requirement by requirement basis and 

explained its views on the adequacy of 

the state’s SIP for purposes of meeting 

the infrastructure SIP requirements. 

Where the EPA had concerns about the 

facial adequacy of the state’s 

infrastructure SIP submission, the 

Agency proposed disapproval of the 

submission (e.g., deficiencies 

concerning adequate regulation of GHGs 

in the PSD permitting program that are 

inconsistent with the requirements of 

section 110(a)(2)(C)). Aside from the 

GHG component of the PSD element of 

section 110(a)(2)(C), the EPA believes 

that the other portions of the 

infrastructure SIP submission facially 

meet the applicable requirements of 

section 110(a)(2). 

The commenter also contends that a 

state’s failure to implement an 

otherwise facially sufficient SIP, in 

contravention of statutory requirements, 

could also preclude the EPA’s approval 

of a state’s infrastructure SIP. First, the 

EPA does not believe that any concerns 

whatsoever regarding adequate 

implementation of the SIP should be the 

basis for a disapproval of an 

infrastructure SIP. 

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Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 81377 

6As discussed below, the Error Correction Rule 

identified, and issued a partial disapproval for, 

flaws in the Texas SIP PSD program that were 

broader than the lack of application to GHGs. 

7 ‘‘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; 

Final Rule,’’ 75 FR 77698 (December 13, 2010). 

8 ‘‘Determinations Concerning Need for Error 

Correction, Partial Approval and Partial 

Disapproval, and Federal Implementation Plan 

Regarding Texas’s Prevention of Significant 

Deterioration Program,’’ Interim Final Rule, 75 FR 

82430 (December 30, 2010) (Interim Final Error 

Correction Rule); ‘‘Determinations Concerning Need 

for Error Correction, Partial Approval and Partial 

Disapproval, and Federal Implementation Plan 

Regarding Texas’s Prevention of Significant 

Deterioration Program,’’ Final Rule, 76 FR 25187 

(May 3, 2011) (Error Correction Rule). 

The EPA acknowledges, as 

commenter asserts, there have been 

instances regarding particular 

components of the Texas Major NSR 

PSD SIP permitting program where the 

EPA itself has raised concerns with the 

state about implementation issues. The 

EPA is continuing to evaluate its review 

of the implementation issues that have 

arisen at this time but believes that it 

may move forward with finalizing its 

proposed approval in the absence of a 

final EPA determination pursuant to 

110(m) and 179(a)(4) that the SIP is not 

being implemented adequately. EPA has 

not finalized such a determination. EPA 

believes that such a determination 

would undermine the approvability of 

SIP language that is otherwise facially 

sufficient. 

The EPA is not determining in this 

action that the implementation concerns 

that have arisen do not exist, but that 

the EPA will continue to examine and 

analyze the implementation concerns 

we are currently aware of and have 

already communicated to the state, as 

well as any others we become aware of 

in the future. It is important to note that 

EPA has already taken a number of 

actions to attempt to correct some issues 

with SIP implementation, including 

disapproval of certain proposed SIP 

packages and objections to individual 

Title V permits that did not include all 

applicable SIP requirements. If the EPA 

determines that outstanding 

implementation issues are sufficiently 

serious it will take appropriate action, 

which could include the use of other 

regulatory tools, including the issuance 

of a SIP call, making a finding of failure 

to implement, or taking measures to 

address specific permits pursuant to the 

EPA’s case by case permitting oversight. 

Which action would be appropriate 

would depend on the nature and extent 

of the particular implementation 

problems at issue. The commenters raise 

additional specific contentions 

regarding problems with 

implementation of particular 

components of the PSD NSR SIP 

program. The EPA will respond to those 

comments in the following relevant 

subsections. 

E. Comments That Address Greenhouse 

Gases (GHGs) 

Comment: The EPA received 

identically phrased comments from two 

industry groups on this proposal. These 

commenters support the EPA’s proposal 

to the extent of the proposed partial 

approval of Texas’s infrastructure SIP, 

but oppose the proposal to the extent of 

the proposed partial disapproval of the 

SIP. The commenters make two 

objections as the basis of their 

opposition to the partial disapproval. 

The commenters’ first objection is that 

the EPA’s proposed disapproval is based 

on grounds that are outside this 

rulemaking. They explain that, in their 

view, this rulemaking relates to the 

requirements of CAA section 110 for the 

1997 ozone and 1997 and 2006 PM2.5

NAAQS, and that the GHG permitting 

requirements—which were the subject 

of the EPA’s proposed disapproval—are 

not related to those NAAQS 

requirements. 

Response: We disagree with these 

comments. The premise of these 

comments seems to be that CAA PSD 

permitting requirements apply on a 

pollutant-by-pollutant basis, but that 

premise is incorrect. Those 

requirements apply on a source-bysource basis for all pollutants emitted by 

that source that meet the PSD 

applicability thresholds. For example, a 

new source that triggers PSD because of 

its emissions of ozone precursors or 

PM2.5 is also subject to PSD for any 

other conventional pollutants that it 

emits above the applicable significance 

levels and for GHGs, if it emits those 

above the Tailoring Rule thresholds. 

Accordingly, for the ozone and PM2.5

NAAQS Texas infrastructure SIP to be 

fully approvable, that SIP must include 

the appropriate PSD requirements for all 

other pollutants, including GHGs. Thus, 

contrary to the commenters’ objections, 

those PSD requirements are related to— 

and, in fact, are part and parcel of—the 

ozone and PM2.5 infrastructure SIP. 

Because the infrastructure SIP fails to 

include some of those requirements, the 

EPA must disapprove that SIP to that 

extent.6

Comment: The commenters’ second 

objection is that disapproval of the 

infrastructure SIP is ‘‘redundant’’ in 

light of what we call the GHG PSD SIP 

Call or, simply, the SIP Call,7 and what 

we call the Texas GHG PSD Error 

Correction Rule, or, simply, the Error 

Correction Rule.8 The commenters add 

that they have ‘‘serious concerns about, 

among other things, the extent to which 

the GHG SIP Call and [Error Correction 

Rule] have a sound basis in the CAA 

* * *. In light of the highly 

questionable basis for these past actions, 

* * * there is no reason for [the] EPA 

to introduce the legal uncertainty 

associated with the federal program for 

GHG permitting at Texas sources to the 

straightforward and unrelated action’’ 

concerning the infrastructure SIP. The 

commenters incorporate by reference 

their comments on the SIP Call and the 

Error Correction Rule, in which they 

argue that those rules are not authorized 

under the CAA. 

Response: We disagree with these 

comments. The infrastructure SIP action 

is not unrelated to or redundant in light 

of the EPA’s past actions regarding GHG 

permitting. As explained in the proposal 

for this infrastructure SIP action, the 

Texas infrastructure SIP submittals do 

not include revisions to the SIP, but 

document how the current Texas SIP 

already includes the required 

infrastructure elements. Our proposed 

determination evaluated how section 

110(a)(2) elements, including the PSD 

element of section 110(a)(2)(C), are 

contained in the current Texas SIP. In 

the two recent actions cited by 

commenters, the EPA identified 

substantial deficiencies in the Texas 

PSD SIP provisions. In the SIP Call, 

promulgated under CAA section 

110(k)(5) on December 13, 2010, the 

EPA determined that the Texas PSD SIP 

is substantially inadequate to meet CAA 

requirements because it does not apply 

PSD requirements to GHG-emitting 

sources. Accordingly, the EPA issued a 

‘‘SIP call’’ for Texas, which required the 

state to revise its SIP as necessary to 

correct the inadequacy. The EPA also 

established the deadline of December 1, 

2011 for Texas to submit the corrective 

SIP revision. See 75 FR 77698. 

In the Error Correction Rule, we stated 

that Texas’s PSD SIP was flawed 

because it ‘‘failed to address or to 

include assurances of adequate legal 

authority * * * for the application of 

PSD to each newly regulated pollutant, 

including non-NAAQS pollutants, 

under the CAA,’’ among them GHGs 

(see 76 FR 25178, 25192). Accordingly, 

we stated that our approval of the SIP 

with those flaws was in error. Although 

our approval took place in 1992, and 

concerned SIP submittals in the late 

1980s, we made clear that Texas had 

never corrected those flaws and, in fact, 

in the context of participating in the 

EPA’s CAA rulemakings concerning 

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81378 Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 

9As noted above, the EPA is not reopening those 

determinations in this rulemaking. 

GHGs in 2010, had made statements that 

highlighted those flaws. As a result, 

under CAA section 110(k)(6), we revised 

our previous approval of the SIP to be 

a partial approval and partial 

disapproval. Further, we promulgated a 

FIP, the scope of which was 

commensurate with the error that we 

were correcting. We explained that we 

were promulgating a FIP to apply 

appropriate measures to assure that the 

EPA’s PSD regulatory requirements will 

apply to non-NAAQS pollutants that are 

newly subject to regulation under the 

CAA that the Texas PSD program does 

not already cover. At present, the only 

pollutant is GHGs. Therefore, the EPA’s 

FIP will apply the EPA regulatory PSD 

program for the GHG portion of PSD 

permits for GHG-emitting sources in 

Texas, and the EPA commits to take 

whatever steps are appropriate if, in the 

future, Texas fails to apply PSD to 

another newly regulated non-NAAQS 

pollutant. Id. 

Therefore the SIP Call and the Error 

Correction Rule are not only 

inextricable from, but are also important 

for today’s rulemaking. As described in 

those prior actions, the EPA determined 

that the Texas PSD SIP provisions have 

deficiencies. Texas’s infrastructure SIP 

includes those same PSD provisions. 

Accordingly, the EPA is fully justified 

in disapproving the Texas infrastructure 

SIP to the extent those PSD provisions 

are deficient. 

Contrary to the commenters’ 

statements, the fact that the EPA 

determined the deficiencies in the SIP 

Call and Error Correction Rule also does 

not make the current rulemaking 

‘‘redundant.’’ As we explain in the 

proposal for this rulemaking, Texas is 

required to have an infrastructure SIP 

that meets the applicable requirements 

of CAA section 110(a)(2). That 

obligation is not changed by the fact that 

the EPA conducted previous 

rulemakings—the SIP Call and Error 

Correction Rule—that determined that 

Texas’s SIP PSD program has 

deficiencies. 

As noted above, the industry 

commenters on this infrastructure 

rulemaking commented on the SIP call 

and the Error Correction Rule, and we 

responded to those comments, during 

the course of those rulemakings. See 75 

FR 77698, 77705–77716 (SIP Call); 

Response to Comment on Proposed 

Rule, ‘‘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,’’ December 2010; 76 FR 25178, 

25192–25205 (Error Correction Rule); 

‘‘Determinations Concerning Need for 

Error Correction, Partial Approval and 

Partial Disapproval, and Federal 

Implementation Plan Regarding Texas’s 

Prevention of Significant Deterioration 

Program; Proposed Rule—Response to 

Comments (April 2011) (response to 

comments for Error Correction Rule). As 

of the date of the current rulemaking, 

Texas has not submitted the corrective 

SIP revision required by the SIP Call, 

and has taken no action to remedy the 

flaws that were the basis for the Error 

Correction Rule. Texas has challenged 

both rulemakings in the U.S. Court of 

Appeals for the DC Circuit. 

In addition, contrary to the 

commenters’ statements, their 

objections to the SIP Call and Error 

Correction Rule are not relevant in the 

current rulemaking. As noted above, 

those rulemakings made determinations 

that the Texas SIP PSD program has 

deficiencies. Commenters had the 

opportunity to, and did, comment on 

those rulemakings, and have brought 

challenges to those rulemakings in 

court. The EPA is not re-opening those 

determinations in this rulemaking. 

These determinations apply in this 

rulemaking to the extent the SIP PSD 

provisions at issue in the SIP Call and 

Error Correction rules are the same as 

the SIP provisions at issue in the current 

rulemaking. In the alternative, if the 

comments are relevant, then we respond 

to them by incorporating by reference 

our responses to comments in the SIP 

Call and Error Correction Rule, cited 

above. 

As we noted in the proposal for this 

rulemaking, Texas did not submit 

additional SIP provisions to assure that 

its 1997 PM2.5 and ozone, and 2006 

PM2.5, infrastructure SIPs met the 

substantive requirements of CAA 

section 110(a)(2). See 76 FR 58748, 

58750. Rather, in 2008 and 2009, Texas 

took the position that its existing SIP 

provisions meet the infrastructure SIP 

requirements, including CAA section 

110(a)(2)(C) and (D)(i)(II). Id. Among its 

existing SIP provisions are the PSD 

provisions that the EPA subsequently, 

in the 2010 SIP Call and the 2011 Error 

Correction Rule, determined to have 

deficiencies. Accordingly, the EPA’s 

determination in the SIP Call that 

Texas’s SIP PSD program is deficient 

because it does not apply PSD to GHGs, 

and the EPA’s determination in the 

Error Correction Rule that Texas’s SIP 

PSD program is deficient because it does 

not address, or provide assurances of 

adequate legal authority to address, 

pollutants newly subject to regulation— 

including non-NAAQS pollutants, 

among them GHGs—apply as well for 

purposes of the current rulemaking. In 

this manner, the SIP Call and Error 

Correction Rule provide the basis for 

our disapproval in the current 

rulemaking of the Texas SIP for failing 

to meet the infrastructure requirements 

for the 1997 ozone and PM2.5 NAAQS 

and the 2006 PM2.5 NAAQS with respect 

to the PSD requirements of CAA section 

110(a)(2)(C) that concern GHGs and that 

concern the applicability of PSD to 

pollutants newly subject to regulation. 

The same determinations in the SIP 

Call and the Error Correction Rule that 

the Texas SIP PSD program has 

deficiencies provide a basis for our 

disapproval in the current rulemaking of 

the Texas SIP for failing to meet the 

infrastructure requirements under CAA 

section 110(a)(2)(D)(i)(II),9 under which 

Texas’s SIP must contain adequate 

provisions prohibiting emissions that 

interfere with any other state’s required 

PSD program; and under CAA section 

110(a)(2)(D)(ii), under which Texas’s 

SIP must require new or modified 

sources to notify neighboring states of 

potential impacts from such sources. As 

discussed in the proposal for this 

rulemaking, Texas’s PSD program is the 

primary measure that must be included 

to meet the requirements of section 

110(a)(2)(D)(i)(II). See 76 FR 58748, 

58760. The EPA’s determinations in the 

SIP Call and the Error Correction Rule 

that the Texas SIP does not meet PSD 

requirements because it has the 

deficiencies of failing to apply to GHGs 

or to address pollutants newly subject to 

regulation means that the infrastructure 

SIP fails to meet the requirements of (i) 

section 110(a)(2)(D)(i)(II) because the 

PSD program has the same deficiencies, 

and (ii) section 110(a)(2)(D)(ii) because, 

by not addressing pollutants newly 

subject to regulation, the infrastructure 

SIP does not require new or modifying 

sources that emit those pollutants to 

notify neighboring states of potential 

impacts. 

F. Comments That Address Section 

110(a)(2)(E) 

Comment 1: The commenter states 

that Texas does not have adequate 

authority to enforce the SIP pursuant to 

section 110(a)(2)(E) specifically because 

of Article 6 of Senate Bill 12, Texas state 

legislation passed in 2007. The 

commenter states the EPA’s position is 

Senate Bill 12 does not disallow the 

EPA’s approval of the infrastructure SIP 

for section 110(a)(2)(E) in part because 

the legislation does not alter the 

enforcement authority ascribed to the 

EPA, citizens, and other parties other 

than the TCEQ by the CAA. According 

to the commenter’s assertion, under 

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10A self-certified violation is a violation certified 

by the source. Category B violations are identified 

in the TCEQ Enforcement Initiation Criteria (EIC); 

the EIC is in the docket for this rulemaking. 

section 110(a)(2)(E) the TCEQ may not 

cede its authority to other parties and 

must have authority to enforce all 

infractions and not just repeat 

infractions, and because Senate Bill 12 

partially undermines the state’s 

enforcement authority the Texas 

infrastructure SIP does not meet section 

110(a)(2)(E). The commenter also states 

that the EPA’s separate evaluation of 

Senate Bill 12 under the Agency’s Title 

V authority does not make the 

infrastructure SIP any more compliant 

with section 110 requirements. 

Response: Regarding the commenter’s 

assertion that under section 110(a)(2)(E) 

the TCEQ must have authority to 

enforce all infractions and cannot cede 

this authority to others, Senate Bill 12 

(SB 12) does not preclude the TCEQ 

from taking certain types of enforcement 

actions against sources covered under 

SB12. The TCEQ has authority to 

impose injunctive relief with respect to 

all violations from the sources including 

those for which the legislation altered 

the TCEQ’s enforcement authority (76 

FR 58748). Senate Bill 12, codified at 

TWC Section 7.00251, by its own 

statutory terms alters the TCEQ’s 

enforcement authority for ‘‘violations 

based on information [the TCEQ] 

receives as required by Title V of the 

Clean Air Act’’ upon first infraction. In 

particular, Senate Bill 12 alters the 

TCEQ’s enforcement authority with 

respect to particular self-certified10

violations, further classified as 

‘‘Category B’’ violations, documented in 

a Title V deviation report. Under the 

Title V regulations states must 

specifically have the authority to collect 

civil penalties for the violation of any 

applicable requirement; any permit 

condition; any fee or filing requirement; 

any duty to allow or carry out 

inspection, entry or monitoring 

activities or, any regulation or orders 

issued by the permitting authority. This 

provision is in contrast to the more 

general requirements for the states to 

have an enforcement program under 

Title I. The EPA reads SB 12 to not 

legislatively impede the TCEQ’s 

enforcement authority to seek injunctive 

relief for any violations, and as 

described in the proposal, also does not 

impede the TCEQ from collecting 

penalties for repeat infractions. 

Therefore, the state has the authority to 

subject all infractions to some level of 

enforcement. Because the TCEQ has 

generic enforcement authorities evinced 

by various state statute provisions 

described in the proposal, the authority 

to seek injunctive relief for all violations 

and authority to seek penalties and 

injunctive relief for repeat infractions, 

and SB 12 did not alter the CAA 

enforcement authority of the EPA or 

other parties, the EPA determined this 

state legislation did not bar the EPA’s 

approval and these facts conjunctively 

supported the EPA’s proposal for 

approval of the infrastructure SIP as 

meeting section 110(a)(2)(E), as 

discussed in our proposal. 

The EPA’s approval is based on the 

specific facts described in this 

rulemaking regarding the effects of SB 

12. As discussed in our proposal, the 

EPA is evaluating SB 12 pursuant to its 

Title V authority as the legislation, by 

the face of its own terms, alters the 

TCEQ’s enforcement authority with 

respect to violations based on 

information the TCEQ receives as 

required by Title V of the CAA upon 

first infraction. The EPA reiterates that 

for the bases described in this response 

to comment and the proposal for this 

action, such as generic enforcement 

authority under state statutory 

provisions, the EPA finds the Texas SIP 

meets the infrastructure SIP 

requirements for section 110(a)(2)(E). As 

described in the proposal, Title V is 

subject to statutory and regulatory 

mechanisms outside the scope of 

section 110(a), and the scope of this SIP 

action is limited to determining whether 

the existing SIP meets certain 

infrastructure and interstate transport 

SIP requirements of section 110(a)(2) 

with respect to the 1997 8-hour ozone 

and 1997 and 2006 PM2.5 NAAQS. The 

reasons for the EPA’s proposed 

determination of approvability under 

section 110(a)(2)(E) are discussed in this 

response and in the proposal, and are 

separate and adequate bases that do not 

preclude the agency’s evaluation of this 

legislation under Title V. 

Comment 2: The TCEQ agrees with 

the EPA’s proposed finding for this 

action that the SIP meets the 

infrastructure SIP requirements for 

adequate enforcement authority and 

resources pursuant to section 

110(a)(2)(E). However, the commenter 

considers the EPA’s discussion of 

Senate Bill 12 as inappropriate for 

inclusion in the proposal for this 

rulemaking because the commenter 

contends the EPA’s stated awareness 

regarding Senate Bill 12, a Title V 

program, has no bearing on the 

evaluation of the Texas SIP which is 

solely a Title I program. The commenter 

concludes it fails to see the purpose 

served by the EPA’s discussion of 

Senate Bill 12 in the proposed action. 

Response: The EPA appreciates the 

commenter’s support for the proposed 

finding pursuant to section 110(a)(2)(E). 

Though the EPA’s evaluation of SB 12 

under Title V ultimately does not factor 

into the EPA’s proposed approval of the 

infrastructure SIP for reasons explained 

in the proposal and in our response to 

Comment 1 under this subsection, the 

EPA believes it was not inappropriate in 

this particular matter that involved an 

overlapping concern—the adequacy of 

the state’s enforcement authority—to 

put interested parties and the public on 

notice that the agency is evaluating this 

matter, albeit under another part of the 

Act. 

G. Comments That Address Sections 

110(a)(2)(B) and 110(a)(2)(J) 

Comment: One commenter states that 

the Texas SIP does not provide for 

appropriate monitoring of ambient air 

quality, particularly for ozone. The 

commenter also states that the EPA’s 

prior approvals of the Texas Statewide 

Air Quality Surveillance network and 

the 2010 Annual Air Monitoring 

Network Plan (AAMNP) do not nullify 

the EPA’s need to evaluate Texas’s 

monitoring program in this rulemaking. 

The commenter additionally cites to the 

EPA’s raising concerns regarding the 

2010 AAMNP with the TCEQ in a 

separate communication without 

discussion of those concerns in this 

rulemaking as negating a basis for 

approval of the Texas SIP for meeting 

the requirements of 110(a)(2)(B). The 

commenter also states that the AAMNP 

does not discuss ozone monitoring. The 

commenter also states that many gaps 

remain in the State’s air monitoring 

network in the Houston area and only 

a few Houston ozone monitoring 

stations are equipped with Automated 

Gas Chromatographs, which measure 

highly reactive volatile organic 

compounds (HRVOCs). 

Response: As the comment indicates, 

the EPA has approved the Texas 

Statewide Air Quality Surveillance 

Network and its 2010 Annual Air 

Monitoring Network Plan. The EPA 

conducts a comprehensive annual 

review to ensure that the state has a 

monitoring network in place that meets 

the technical requirements of 40 CFR 

Part 58 and its appendices. Part 58 

minimally provides a 30-day public 

inspection opportunity for every annual 

monitoring network plan presented by 

the States and local agencies that 

develop the plans; moreover, whenever 

a plan proposes network modifications, 

a public comment opportunity is 

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11The TCEQ provides a 30-day comment period 

for their AAMNP, but did not receive any 

comments during the public comment period for 

their 2010 AAMNP. 

12The Network Design Criteria for Ambient Air 

Quality Monitoring was promulgated at 71 FR 

61236 (October 17, 2006) and codified at 40 CFR 

58, Appendix D. The ozone specific monitoring 

network design criteria are at part 58, Appendix D, 

section 4.1. 

13See the TCEQ Web site air monitoring pages at 

www.tceq.texas.gov/agency/data/ozone_data.html. 

14Pursuant to Table D–2 of Appendix D to Part 

58 (SLAMS Minimum Ozone Monitoring 

Requirements), the Longview, Tyler and Waco areas 

each must have a minimum of one SLAMS; the 

Austin, Beaumont, Corpus Christi, El Paso, the 

Lower Rio Grande Valley, and San Antonio areas 

each must have a minimum of two SLAMS and 

DFW must have a minimum of three SLAMS. These 

areas have at least the minimum number of required 

SLAMS. See 71 FR 61236, 61318. See also the 

TCEQ Web site for a listing of the current SLAMS 

in these cities: www.tceq.texas.gov/agency/data/ 

ozone_data.html. 

15The Killeen monitor was activated in June 

2009, several months after the start of the ozone 

season. Thus, the first, complete 3-year ozone 

design value for this site is anticipated with the 

completion of the 2012 ozone season. 

16Texas cities with regulatory ozone monitoring 

sites in 1997: Dallas-Fort Worth, Tyler-LongviewMarshall, Beaumont-Port Arthur, Austin, and 

Houston-Galveston-Brazoria, and San Antonio. 

17The TCEQ added regulatory ozone monitoring 

sites in the following cities: El Paso-Juarez, Corpus 

Christi-Victoria, Lower Rio Grande Valley (which 

includes the McAllen-Edinburg-Mission area and 

Brownsville), and Waco. 

18The Air Quality System (AQS) is the EPA’s 

repository of ambient air quality data. AQS stores 

data from over 10,000 monitors, 5,000 of which are 

currently active. 

19The TCEQ Web site provides data from as far 

back as 1997 for 8-hour ozone. 

20The December 27, 2010 letter and the TCEQ 

AAMNP for 2010 are in the docket for this 

rulemaking. 

21See letter from David W. Bower to Maria L. 

Martinez, dated January 31, 2011 and letter from 

Mark R. Vickery to Al Armendariz, dated March 31, 

2011, in the docket for this rulemaking. 

22See letter from Al Armendariz to Mark R. 

Vickery, dated June 2, 2011, in the docket for this 

rulemaking. 

23The Wallisville site would not qualify as a 

maximum concentration monitor because it does 

not record the highest 8-hour ozone concentrations 

in the area. For the last several years, the ozone 

monitor at the Manvel site has recorded the highest 

8-hour ozone concentrations in the Houston area. 

furnished by either the State or EPA.11

We invite future public participation 

from this commenter and others when 

these opportunities are provided. 

Consistent with the findings of our most 

recent review, Texas has a monitoring 

network in place and has no 

deficiencies in that network that 

warrant disapproval of the state’s 

monitoring network plan. For the 

reasons discussed below, we do not 

agree with the commenter that more is 

needed to satisfy the requirements of 

110(a)(2)(B). 

Several of the assertions brought 

forward by this comment are misplaced 

or inaccurate. The current air 

monitoring network for Texas includes, 

but is not limited to monitoring PM2.5, 

ozone and ozone precursors. The 

network design criteria for ambient air 

quality monitoring is found at 40 CFR 

58, Appendix D (hereafter referred to as 

Part 58) 12 and includes the minimum 

monitoring requirements for state and 

local air monitoring stations (SLAMS), 

which measure ozone; Photochemical 

Assessment Monitoring Stations 

(PAMS), which measure ozone 

precursors, including HRVOCs; and 

PM2.5. The minimum number of PAMS 

required in the Houston area is two and 

the Texas Commission on 

Environmental Quality (TCEQ) operates 

three PAMS in Houston. In addition 

however, there are seven privately 

owned PAMS in the Houston area and 

the TCEQ posts data from these 

monitors on their Web site (www.tceq.

texas.gov/agency/data/ozone_

data.html). The minimum number of 

SLAMS for ozone required under Part 

58 in the Houston area is four and the 

TCEQ operates 12 such monitors in 

Houston.13 The current TCEQ air 

monitoring network meets the minimum 

federal regulatory requirements in Part 

58 for SLAMS and PAMS in the 

Houston area. The air monitoring 

networks in the Austin, Beaumont, 

Corpus Christi, Dallas-Fort Worth 

(DFW), El Paso, Lower Rio Grande 

Valley, San Antonio, Tyler-Longview, 

and Waco areas also meet the minimum 

requirements for number of ozone 

monitors, pursuant to Part 58.14 In 

addition, pursuant to Part 58, in a 

metropolitan statistical area (MSA) 

having a population over 350,000, a 

minimum of one ozone monitoring site 

is required in areas that have never 

monitored for ozone. In Texas this has 

resulted in one new site in the KilleenTemple-Fort Hood area. A second ozone 

monitoring site will be added when the 

3-year ozone design value is at least 

85% of the 2008 ozone NAAQS (64 

ppb).15

Texas established a State-wide 

monitoring system in their initial SIP 

(37 FR 10842, 10895) and while SIP 

revisions to the monitoring system have 

not been made since 1978 (43 FR 9275), 

the TCEQ has made many revisions to 

the monitoring network. For example, in 

1997, there were 23 regulatory ozone 

monitoring sites in six MSAs 16 and 

today, there are approximately 72 

regulatory ozone monitoring sites in 10 

MSAs.17 The locations of these 

regulatory monitors have been chosen 

following the requirements of Part 58, to 

support the basic monitoring objectives 

of public data reporting, air quality 

mapping, compliance, and 

understanding ozone-related 

atmospheric processes. To meet these 

goals the monitoring network includes 

more sites than the minimum numbers 

required in Part 58, as we see in the 

Beaumont, DFW, El Paso, and Houston 

areas. Data from the State’s air quality 

monitors are collected, evaluated for 

quality and the quality-assured data are 

submitted to the EPA’s Air Quality 

System 18 on a quarterly basis. The 

TCEQ Web site provides the ozone and 

PM2.5 monitor locations and data from 

as far back as 199919 through today. In 

general, the TCEQ currently operates 

one of the most extensive and up-to-date 

air monitoring systems in the United 

States. Thus, for the Texas air 

monitoring network, the lack of recent 

SIP revisions does not support a finding 

that the SIP does not meet the 

requirements of section 110(a)(2)(B). 

The State’s 2010 AAMNP did not 

address ozone monitoring in its 

narrative section, but it included for our 

review an appendix listing all of the air 

monitors, including those for ozone and 

PM. The narrative or text portion of the 

AAMNP addresses proposed changes to 

the network. The TCEQ did not propose 

changes to the ozone network, thus the 

text did not reference ozone. We did not 

have concerns with the lack of proposed 

changes to the State’s ozone network. 

We expressed concerns in our 

December 23, 2010 letter to the TCEQ 

regarding their 2010 AAMNP.20 The 

TCEQ has addressed all but one of the 

concerns expressed in our December 23, 

2010 letter 21 and is working to resolve 

our final request to ensure that 

regulatory ozone monitoring in an 

identified gap in the eastern Houston 

area (the Wallisville monitor, which 

currently is not run by the TCEQ) is 

completed by July 1, 2012.22 A monitor 

at the Wallisville location is not 

required by Part 58, but has been 

requested by the Regional Administrator 

of the EPA’s Region 6 office, as it has 

consistently recorded some of the 

highest 8-hour ozone concentrations in 

the Houston area (see footnote 22).23 See 

40 CFR 58, Appendix D, 4.1(a); 40 CFR 

58, Appendix D, 1.1.1 et seq. 

Furthermore, because Texas has been 

responsive to and is taking steps to 

address the EPA’s concerns regarding 

the air monitoring network there is no 

basis to determine that the Texas SIP 

fails to meet section 110(a)(2)(B) of the 

Act. 

The commenter also references an 

article in the Houston Chronicle dated 

March 2, 2005, which mentions 20 gaps 

in the Houston air monitoring network. 

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24The ozone warning areas: Austin, DFW, 

Houston-Galveston-Brazoria, and San Antonio. 25This is a Clean Air Status and Trends Network 

(CASTNET) monitor that includes a continuous 

ozone monitor. CASTNET is a regional long-term 

environmental monitoring program administered 

and operated by the EPA. This monitor will meet 

Part 58 and data will be submitted into AQS by 

early 2012. Additional information on CASTNET is 

in the docket for this rulemaking. 

The outdated article did not list where 

the 20 gaps were located, but provided 

names of several cities within the 

Houston area that, at the time, lacked 

ozone monitors. Currently, at least two 

of those cities have ozone monitors. 

Neither the commenter nor the article 

provided any documentation showing 

where any current gaps might be 

located. 

Our record on the current State-wide 

air quality network shows that Texas 

meets the requirements in Part 58. As 

stated, the air monitoring network 

review occurs annually, and the state 

has worked to address the EPAidentified concerns and avoid potential 

deficiencies in a timely manner. 

Furthermore, the State and EPA work 

together to ensure that the air 

monitoring network meets federal 

regulatory requirements whether 

through the demonstration of meeting 

minimum requirements or by exercising 

and implementing the Regional 

Administrator’s authority for obtaining 

any additional information. Id. For the 

1997 ozone and the 1997 and 2006 

PM2.5 NAAQS, the Texas SIP provides 

for establishment and operation of 

appropriate devices, methods, systems, 

and procedures necessary to—(i) 

monitor, compile, and analyze data on 

ambient air quality, and (ii) upon 

request, make such data available to the 

Administrator. 

Comment: One commenter posits that 

the lack of ozone monitors in nearly all 

of the counties that include coal-fired 

power plants precludes the State from 

successfully notifying the public if the 

NAAQS are exceeded and accordingly, 

the SIP does not meet the notification 

requirements of section 110(a)(2)(J). 

Response: As an initial matter, we do 

not agree that there is a ‘‘lack of ozone 

monitors in nearly all of the counties 

that include coal-fired power plants’’ 

because, as described more fully below, 

a number of counties with coal-fired 

power plants have ozone monitoring 

sites and the monitoring network meets 

the requirements of part 58, Appendix 

D. We also do not agree that Texas’s 

satisfaction of the requirements of 

section 110(a)(2)(J) regarding adequacy 

of public notification measures is in 

question. Texas has measures in its 

plan, as required by section 127 of the 

Act, as well as measures that it 

implements in practice that are effective 

to notify the public of instances or areas 

in which any primary NAAQS is or was 

exceeded. When the forecast indicates 

that ozone levels will be above the 8- 

hour ozone standard, the State notifies 

the National Weather Service (NWS), 

who then broadcasts the information 

across its weather wire. In addition, 

county residents can subscribe to the 

State’s electronic notification system for 

ozone forecasts and ozone warnings.24

Finally, monitored ozone values are 

posted on the TCEQ Web site and are 

updated hourly. Thus the State has use 

of its own Web site, the electronic 

notification system and the NWS to 

successfully notify Texas residents 

when the ozone NAAQS are forecast to 

be or actually are above the 8-hour 

standard. 

As noted above, we do not agree with 

this comment’s technical assertion 

regarding a ‘‘lack of ozone monitors.’’ 

The placement of air quality monitors is 

provided by Part 58, which requires an 

ozone monitor when the MSA has a 

population of at least 350,000. In 

addition however, Part 58 addresses the 

need to locate monitoring sites to 

determine the impact of significant 

sources or source categories on air 

quality. Ozone is an unstable and highly 

reactive molecule and it is well known 

that by increasing the concentration of 

NOX, the concentration of ozone can be 

depressed, causing chemical loss of 

ozone or ‘‘NOX scavenging.’’ Therefore, 

the TCEQ and EPA have located air 

quality monitors downwind of 

significant sources, as monitors placed 

in closer proximity to NOX sources can 

show lower ozone levels. As indicated 

in Table 1, two of the counties with 

power plants have a monitor in the 

same county and eight of the counties 

with power plants (actual and proposed) 

have at least one ozone monitor in an 

adjacent and/or downwind county. The 

two counties in west Texas (Lamb and 

Potter) will soon have a monitor in the 

Palo Duro area of Randall County, 

which is adjacent to Potter County. Most 

(10 out of 12) of the counties listed in 

Table 1 are within or very close to the 

State’s established ozone forecast areas. 

TABLE 1—OZONE MONITORING NEAR COAL-FIRED POWER PLANTS

Facility name and location 

(county) Closest monitor (county) Forecast areas 

Parish (Fort Bend) .................... (Fort Bend, Brazoria, Harris) ................................................................. Houston-Galveston-Brazoria (HGB). 

Big Brown (Freestone) .............. Corsicana (Navarro), adjacent to Freestone ......................................... Dallas-Fort Worth (DFW). 

Monticello, Welsh (Titus) .......... Greenville (Hunt), downwind (east) of Titus county .............................. DFW. 

Martin Lake (Rusk) ................... Longview (Gregg), Tyler (Smith), both adjacent to Rusk ...................... Tyler-Longview. 

Pirkey (Harrison) ....................... Karnack (Harrison), 

Longview (Gregg), Tyler (Smith), Gregg and Smith are downwind 

Tyler-Longview. 

Gibbons Creek (Grimes) ........... Conroe (Montgomery), adjacent to Grimes ........................................... HGB. 

Twin Oaks (Robertson) ............. Corsicana (Navarro), downwind from Robertson .................................. DFW. 

White Stallion (Matagorda) .......

Facility is proposed. ..................

Danciger and Lake Jackson (Brazoria), adjacent to Matagorda ........... HGB. 

Coleto Creek (Goliad) ............... Seguin and New Braunfels Airport (Guadalupe), downwind ................. Forecast: Victoria, 

HGB and San Antonio. 

San Miguel (Atascosa) ............. San Antonio (Bexar), adjacent to Atascosa .......................................... San Antonio. 

Tolk (Lamb) ............................... Palo Duro (Randall).25

Harrington (Potter) .................... Palo Duro (Randall), adjacent to Potter.

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26As background, the State’s February 1, 2006 SIP 

submittal of revisions to its state rules removed the 

reference to the definition of federal PSD BACT in 

40 CFR 52.21(b)(12). On September 23, 2009, EPA 

proposed to disapprove the 2006 submittal due in 

part to its removal of this definition. See 74 FR 

48467. On July 16, 2010, Texas submitted a revision 

to its state rules that reinstated the federal PSD 

BACT definition to 52.21(b)(12). See 30 Texas 

Administrative Code (TAC) 116.160(c)(1)(A). The 

revision also included a reference to 52.21(j) which 

implements the BACT definition. See 30 TAC 

116.160(c)(2)(A). We found that the adoption of the 

reference to the federal definition of PSD BACT in 

40 CFR 52.21(b)(12) corrected the deficiency in the 

2006 submittal because it reinstated the federal 

BACT definition. See the final rule at 75 FR 55978 

for a detailed discussion. 

27The cross-references to the federal PSD 

requirements relating to BACT in its State PSD 

Program serves to distinguish the federal BACT 

requirements for PSD from the State’s requirement 

to apply State BACT under its Minor NSR Program. 

See 30 TAC 116.111(a)(2)(C). See the discussion at 

75 FR 55978, at 55979–55980 and 55981–55986, for 

detailed information on the basis for the 2010 SIP 

approval action. 

28See http://www.tceq.texas.gov/assets/public/ 

permitting/air/Guidance/NewSourceReview/ 

airpoll_guidance.pdf. 

29See, ‘‘Prevention of Significant Deterioration 

(PSD) for Particulate Matter Less Than 2.5 

Micrometers (PM2.5)—Increments, Significant 

Impact Levels (SILs) and Significant Monitoring 

Concentration (SMC),’’ 75 FR 64864 (Oct. 20, 2010). 

This rulemaking concerned various issues relevant 

to PM2.5 and PSD, including increments, significant 

impact levels, and a significant monitoring 

concentration. 

30See, ‘‘Implementation of the New Source 

Review (NSR) Program for Particulate Matter Less 

Than 2.5 Micrometers (PM2.5),’’ 73 FR 28321 (May 

16, 2008). This rulemaking concerned various 

issues relevant to PM2.5 and PSD, including how to 

address PM2.5 precursors, significant emissions 

rates, and ambient air quality analysis 

requirements. 

H. Comments That Address Best 

Available Control Technology (BACT) 

Comment 1: The commenter states 

that the Texas Commission on 

Environmental Quality (TCEQ) fails to 

properly implement Best Available 

Control Technology (BACT) 

requirements. The commenter also 

states that the TCEQ does not require 

new and modified sources to meet the 

BACT standard consistent with the 

federal definition of BACT. The 

commenter also states that the TCEQ 

BACT guidance incorporates a three-tier 

approach, which is at odds with the 

federal BACT definition. The 

commenter also states that the TCEQ 

routinely disregards and misapplies its 

own BACT guidance and the 

Commission’s implementation of BACT 

is not guided by any written BACT 

methodology. 

Response: Texas’s approved SIP is 

facially sufficient to meet the federal 

PSD SIP requirements with respect to 

BACT. Under Texas’s approved 

Prevention of Significant Deterioration 

(PSD) SIP that EPA approved on 

September 15, 2010 (75 FR 55978),26 a 

source must determine applicable BACT 

for each PSD permit as required under 

40 CFR 52.21(b)(12) and (j). See 30 TAC 

116.160(c)(1)(A) and (c)(2)(A).27 The 

EPA approved initial revisions to the 

Texas SIP for its PSD program and 

BACT provisions on June 24, 1992. See 

57 FR 28093. In that action, EPA did not 

specifically require TCEQ to incorporate 

EPA’s Top-Down BACT review 

approach into the SIP. Instead, Texas 

was allowed to use, although not 

incorporated into the SIP, the State’s 

Spring 1987 BACT guidance document 

that used a three-tier BACT Analysis 

approach. After public comment in 

2011, TCEQ issued a Reference Guide,28

that brings forward and updates the 

Spring 1987 BACT guidance document. 

It continues to include the three-tier 

BACT Analysis approach. 

While we appreciate commenter’s 

concerns regarding BACT 

implementation issues, EPA is 

continuing to evaluate those issues. EPA 

has not yet made any final 

determinations regarding BACT 

implementation issues in this action. 

Therefore, we believe that we may move 

forward with finalizing this action and 

will continue to evaluate the 

implementation issues raised. 

Comment 2: The commenter states 

that the TCEQ guidance and policy 

regarding BACT demonstrations for PSD 

permits fail to require compliance with 

the federal standards and thus, Texas’s 

PSD program fails to ensure the NAAQS 

will be properly implemented, 

maintained, and enforced, per sections 

110(A)(2)(A) and (C). The commenter 

also states that the TCEQ refuses to 

require applicants for PSD permits to 

consider alternative processes and fuels 

as expressly required by the federal 

definition of BACT, which is 

incorporated by reference into the 

TCEQ’s PSD rules. The commenter also 

states that EPA letters to TCEQ dated 

January 24, 2011 and September 29, 

2010, regarding permits for White 

Stallion and Las Brisas, respectively, 

and EPA’s comments dated March 1, 

2010, on the proposed revisions to Title 

30 of the Texas Administrative Code 

(TAC), Section 116.160 to the Texas 

PSD SIP all expressed concern over 

TCEQ’s implementation of BACT 

requirements. 

Response: See our response to 

Comment 1 under this subsection. 

While we agree that the EPA has 

expressed concern with the TCEQ’s 

implementation of the BACT analysis 

requirements in the above-cited 

comment letters (e.g., integrated 

gasification combined cycle (IGCC) and 

alternative fuels), the EPA has not yet 

made any final determinations regarding 

BACT implementation issues in this 

action. Therefore, we believe that we 

may move forward with finalizing this 

action and will continue to evaluate the 

implementation issues raised. If the EPA 

determines that outstanding 

implementation issues are sufficiently 

serious it will take appropriate action, 

which could include the use of other 

regulatory tools, including the issuance 

of a SIP call, making a finding of failure 

to implement, or taking measures to 

address specific permits pursuant to the 

EPA’s case by case permitting oversight. 

Which action would be appropriate 

would depend on the nature and extent 

of the particular implementation 

problems at issue. 

I. Comments That Address Regulation of 

PM2.5

One commenter objected to the EPA’s 

proposed approval of the state’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS on the 

grounds that the state ‘‘has not yet 

incorporated the minimum 

requirements for controlling and 

regulating PM2.5 through its PSD 

program.’’ The commenter argued that 

as part of acting on the infrastructure 

SIPs for the 1997 and 2006 PM2.5

NAAQS, the EPA ‘‘must verify that the 

state has in place enforceable PM2.5

significant emissions rates for NOX and 

SO2, precursors to PM2.5, as well as for 

direct PM2.5’’ and that the state has in 

place the PM2.5 increments required by 

the EPA in another separate rulemaking. 

In support of this latter point, the 

commenter referred to the separate 

rulemaking action by the EPA in 

October 2010 applicable to the NSR/ 

PSD requirements for the PM2.5 NAAQS 

(the 2010 PM2.5 NSR/PSD Rule).29 In 

addition, the commenter questioned the 

adequacy of the separate SIP submission 

made by the state in May 2011 to meet 

the requirements of another separate 

rulemaking action by the EPA in May 

2008 (the 2008 PM2.5 NSR/PSD Rule).30

The commenter’s concerns highlight 

an important overarching question that 

the EPA had to confront when assessing 

the infrastructure SIP submissions for 

the 1997 and 2006 PM2.5 NAAQS: How 

to proceed when the timing and 

sequencing of multiple related SIP 

submissions impact the ability of the 

state and the agency to address certain 

substantive issues in the infrastructure 

SIP submission in a reasonable fashion. 

In this instance, the state’s 

infrastructure SIP for the 1997 PM2.5

NAAQS was, per the explicit terms of 

the statute, due in the year 2000. 

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31See, ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 1997 8-hour 

ozone and PM2.5 National Ambient Air Quality 

Standards,’’ Memorandum from William T. Harnett, 

Director, Air Quality Policy Division, Office of Air 

Quality Planning and Standards (OAQPS). 

32For example, as part of this action, the EPA is 

approving a portion of another SIP submission from 

the state necessary to make explicit that NOX is a 

precursor to ozone formation in the state’s PSD 

permitting program. 

33The EPA notes that in the context of acting on 

infrastructure SIPs, only provisions related to PSD 

permitting would be relevant, because the 

requirements of section 110(a)(2)(I) pertaining to 

nonattainment plan requirements are outside the 

scope of the infrastructure SIPs. 

34As noted in the proposal, on April 20, 2011, the 

state adopted revisions to its SIP to amend its PSD 

and nonattainment NSR programs to implement the 

PM2.5 NAAQS. These revisions became effective 

and enforceable by the state on May 12, 2011. The 

state submitted these changes to the EPA as a SIP 

revision on May 19, 2011. 

Because of protracted litigation over the 

1997 PM2.5 NAAQS, however, the EPA 

and states were significantly delayed in 

the implementation of the 1997 PM2.5

NAAQS, including the infrastructure 

SIPs required under section 110(a)(1) 

and (2). The EPA did not issue guidance 

to states concerning these infrastructure 

SIP submissions until October 2, 2007.31

The state submitted its infrastructure 

SIP for the 1997 PM2.5 NAAQS soon 

thereafter on April 4, 2008. For the 2006 

PM2.5 NAAQS, section 110(a)(1) 

required the submission of an 

infrastructure SIP for that NAAQS by 

November 23, 2009. For this NAAQS, 

the state submitted its infrastructure SIP 

on November 29, 2009. In the proposal 

notice, for purposes of efficiency the 

EPA proposed action on both of these 

PM2.5 infrastructure SIP submissions, in 

addition to the state’s submission for the 

1997 8-hour ozone NAAQS. 

Significantly, the EPA is required, under 

the terms of a Consent Decree, to act on 

the state’s infrastructure SIP for the 

1997 PM2.5 NAAQS by no later than 

December 16, 2011. 

In the process of acting on the 

infrastructure SIP submissions for the 

1997 PM2.5 NAAQS and the 2006 PM2.5

NAAQS, the EPA necessarily had to 

consider how to approach the 

requirements of the 2008 PM2.5 NSR/ 

PSD Rule and the 2010 PM2.5 NSR/PSD 

Rule. The EPA acknowledges that 

section 110(a)(2)(C) directs the EPA to 

assess the state’s infrastructure SIP 

submission with respect to the PSD 

permitting program, and the EPA has 

taken actions accordingly.32 In both the 

2008 PM2.5 NSR/PSD Rule and the 2010 

PM2.5 NSR/PSD Rule, the EPA directed 

states to make specific SIP submissions 

relevant to the PSD permitting programs 

for PM2.5.33 A core question is thus 

whether the EPA should take into 

account these other collateral SIP 

submissions in evaluating the state’s 

infrastructure SIP submissions for the 

PM2.5 NAAQS. 

Unfortunately, the sequence and 

timing of the various SIP submissions 

renders consideration of the other SIP 

submissions required by the 2008 PM2.5

NSR/PSD Rule and the 2010 PM2.5 NSR/ 

PSD Rule impracticable or impossible as 

part of the EPA’s action on these 

infrastructure SIPs. The 2008 PM2.5

NSR/PSD Rule itself was delayed by 

litigation over the NAAQS and other 

intervening events, and thus the EPA 

did not promulgate it until May 16, 

2008. Within that rule, the EPA directed 

states to make a SIP submission that 

would accomplish certain changes to 

the PSD permitting program to address 

PM2.5 by May 16, 2011. The state in fact 

made a SIP submission intended to 

address this requirement on May 19, 

2011.34 Similarly, in the 2010 PM2.5

NSR/PSD Rule, the EPA required states 

to make certain PSD program revisions, 

but in that case the SIP submissions to 

address those requirements are not even 

due until July of 2012, and the State has 

not yet made any SIP submission to 

address those requirements. 

Given that the state submitted its 

infrastructure SIP for the 1997 PM2.5

NAAQS on April 4, 2008, nearly three 

years in advance of the SIP submission 

required by the 2008 PM2.5 NSR/PSD 

Rule, that necessarily means that the 

state’s infrastructure SIP submission for 

the 1997 PM2.5 NAAQS could not have 

included or anticipated those later 

requirements. Likewise, the state’s 

infrastructure SIP submission for the 

2006 PM2.5 NAAQS on November 29, 

2009, was significantly in advance of 

that other required PSD SIP revision. 

The EPA believes that it is not 

reasonable to expect that the state’s 

April 2008 and November 2009 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS should 

have addressed the specific PSD 

program requirements that EPA had not 

requested the state to make SIP 

submissions to address until May of 

2011. For the same reason, the EPA does 

not consider it reasonable to expect the 

state to have anticipated and addressed 

the SIP revision requirements of the 

2010 PM2.5 NSR/PSD Rule in these 

infrastructure submissions, when by the 

terms of that rule states have until July 

2012 to make the necessary SIP 

revisions. 

In theory, the EPA could have elected 

to act on the PSD portion of the state’s 

May 2011 submission to meet the 

requirements of the 2008 PM2.5 NSR/ 

PSD Rule as part of acting at this time 

on the infrastructure SIP submissions 

for the 1997 and 2006 PM2.5 NAAQS. In 

other words, the EPA could have sought 

to accelerate action on the May 2011 

submission in order to try to address the 

more recent SIP submission 

requirements relevant to the PSD 

program for PM2.5. However, the EPA 

determined that this would not be the 

most appropriate course for two primary 

reasons: (1) The EPA’s current logistical 

situation makes it difficult to accelerate 

action on a SIP submission; and (2) the 

EPA believes that the state is currently 

addressing PM2.5 in its PSD permitting 

program pursuant to state law 

requirements and will continue to do so 

in the interim until the EPA is able to 

act on the May 2011 submission. 

First, the EPA notes that the state 

made the SIP submission for the 2008 

PM2.5 NSR/PSD Rule only relatively 

recently. Because the state made the 

submission on May 19, 2011, it is now 

considered complete by operation of 

law as of November 23, 2011. Pursuant 

to section 110(k)(2), Congress provided 

the EPA with up to one year to act on 

the submission from this date. Under 

other logistical circumstances, the EPA 

might consider accelerating action upon 

this particular SIP submission and 

acting on the PSD portions of it as part 

of taking action on the state’s 

infrastructure SIPs for PM2.5 because 

that would allow the EPA to address the 

PSD requirements for PM2.5 more 

comprehensively and efficiently in one 

consolidated action. However, the EPA 

is currently working on a large number 

of rulemaking matters, many under 

Consent Decree deadlines including this 

specific rulemaking, and this makes it 

difficult for the EPA to act on a SIP 

submission on an accelerated basis, 

unless such accelerated action is 

necessary. As noted in the proposal, the 

EPA intends to act on the May 2011 SIP 

submission for the 2008 PM2.5 NSR/PSD 

Rule separately, on a schedule that will 

allow the agency to evaluate and take 

action on that submission, as 

appropriate. 

Second, the EPA believes that action 

on the May 2011 SIP submission is not 

necessary at this time and as part of 

acting on the infrastructure SIP 

submissions for the 1997 and 2006 

PM2.5 NAAQS because the PSD program 

revisions contained within that 

submission are already effective and 

enforceable as a matter of state law, as 

of May 12, 2011. Although the EPA 

acknowledges that it is important that 

these revisions be evaluated and 

approved into the state’s SIP, the EPA 

does not believe that it is inappropriate 

to approve the state’s infrastructure SIP 

submissions at this time. The state made 

the SIP submission required by the 2008 

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81384 Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 

PM2.5 NSR/PSD Rule. Until such time as 

the EPA has the opportunity to evaluate 

that submission and take the necessary 

administrative actions to propose and 

finalize appropriate action upon it, the 

agency concludes that it is acceptable to 

rely on the fact that the revisions have 

been made and are currently enforceable 

for purposes of state law. The state 

made the submission to reflect that its 

PSD permitting program now includes 

evaluation of PM2.5 and does not 

continue to rely on the use of PM10 as 

surrogate for PM2.5 as of May 2011. 

Under these circumstances, the EPA 

does not consider it reasonable to 

interpret section 110(a)(2)(C) to require 

the EPA to disapprove the state’s 

infrastructure SIP submissions for the 

1997 PM2.5 NAAQS and the 2006 PM2.5

NAAQS simply because the agency has 

not yet acted on the May 2011 SIP 

submission for the 2008 PM2.5 NSR/PSD 

Rule, or has not required the state to 

make other PSD program revisions in 

advance of the date required in the 2010 

PM2.5 NSR/PSD Rule. Instead, the EPA 

believes that it is appropriate for the 

EPA to take into consideration the 

timing and sequence of related SIP 

submissions as part of determining what 

it is reasonable to expect a state to have 

addressed in an infrastructure SIP for a 

NAAQS at the time when the EPA acts 

on such submission. Such an approach 

is reasonable, and to adopt a different 

approach by which the EPA could not 

act on an infrastructure SIP, or at least 

could not approve an infrastructure SIP, 

whenever there was any impending 

revision to the SIP required by another 

collateral rulemaking action would 

result in regulatory gridlock. The EPA 

believes that such an outcome would be 

an unreasonable reading of the statutory 

process for the infrastructure SIPs 

contemplated in section 110(a)(1) and 

(2). 

The commenter also specifically 

expressed concern that the state’s May 

2011 SIP submission to meet the 

requirements of the 2008 PM2.5 NSR/ 

PSD Rule did not ‘‘fully implement the 

federally required program to address 

the PM2.5 NAAQS’’ for two specific 

reasons: (1) The submission does not 

establish significant emissions rates for 

precursors that would trigger further 

analysis of PM2.5 impacts; and (2) the 

submission does not include the PM2.5

increments established by the EPA. 

With respect to the first point, the 

EPA has not yet had the opportunity to 

analyze and take action upon the May 

2011 submission, so the agency 

considers it premature to determine 

whether or not the state has correctly 

addressed the issue of significant 

emissions rates for precursors in the 

submission. The EPA will evaluate the 

submission for this and other issues 

when it takes action on this submission 

in a separate rulemaking. The 

commenter should participate in that 

action and resubmit its comments at 

that time. 

With respect to the second point, the 

EPA has also not evaluated the 

submission yet, but notes that the May 

2011 SIP submission would not be 

likely to include any PM2.5 increments, 

nor would EPA have required it to. The 

EPA only established the PM2.5

increments in the 2010 PM2.5 NSR/PSD 

Rule, and did not require states to make 

submissions to address PM2.5

increments until July 2012. Again, 

however, the EPA will evaluate the May 

2011 SIP submission at a later date and 

the commenter should participate in 

that action and resubmit its comments 

on this issue at that time, or in the later 

action that will eventually occur on the 

SIP submission from the state to meet 

the requirements of the 2010 PM2.5 NSR/ 

PSD Rule. 

Finally, one commenter suggested 

that, rather than approving the state’s 

infrastructure SIP with respect to the 

1997 and 2006 PM2.5 NAAQS, the EPA 

should instead ‘‘condition any approval 

of the infrastructure SIP’’ on later 

revisions to the state’s SIP to 

incorporate the NSR/PSD requirements 

that were in the May 2011 submission. 

The commenter asserted that the 

infrastructure SIP submission could not 

be ‘‘complete’’ until it addresses each 

applicable element of section 110(a)(2) 

and that the EPA ‘‘cannot approve the 

SIP when some elements are missing.’’ 

The EPA interprets the commenter’s 

suggestion that it ‘‘condition’’ approval 

of the state’s infrastructure SIP 

submission on later actions to be a 

reference to the concept of conditional 

approval under section 110(k)(4). The 

EPA considered the commenter’s 

suggestion as a means of addressing the 

SIP submission timing issue, but the 

agency is constrained by the provisions 

of the statute. Section 110(k)(4), under 

the rubric of ‘‘conditional approval,’’ 

explicitly authorizes EPA to approve a 

SIP submission ‘‘based on a 

commitment of the State to adopt 

specific enforceable measures by a date 

certain, but not later than 1 year after 

the date of approval of the plan 

revision.’’ Courts have confirmed that 

conditional approvals are an available 

course of action under section 110(k), 

but only if the statutory conditions for 

such a conditional approval have been 

met. 

Based on the specific language of 

section 110(k)(4), the EPA concluded 

that it would not be appropriate to use 

the mechanism of a conditional 

approval in this action on the state’s 

infrastructure SIP submission. The 

statute clearly contemplates use of this 

approach when the state has made a 

commitment to make a submission in 

the future that meets the statutory 

criteria. In this instance, however, the 

state has already made the substantive 

SIP submission for the NSR/PSD 

requirements for the 1997 PM2.5 NAAQS 

in May of 2011. In other words, the state 

would not need to make a commitment 

to make a future submission to adopt 

specific measures by a date certain to 

meet this requirement for the 1997 PM2.5

NAAQS because the state has already 

made a submission intended to meet the 

requirement. 

Given that the state has already made 

the submission in question, and that the 

EPA has not yet been able to evaluate 

it and take the necessary procedural 

steps to act upon it, the EPA does not 

believe that it is appropriate to use the 

mechanism of a conditional approval in 

these circumstances. Had the EPA 

already been able to evaluate the NSR/ 

PSD submission substantively, in theory 

the agency could have requested the 

state to make a commitment to make 

revisions to that submission as part of 

a conditional approval. As previously 

discussed, however, the EPA has not yet 

been able to evaluate that submission 

fully. Thus, the EPA concluded that a 

conditional approval of the 

infrastructure SIP for this element 

would not be a viable option in this 

case. It should be noted, however, that 

the EPA will consider the commenter’s 

suggestion and may utilize the 

mechanism of a conditional approval 

when it acts on the NSR/PSD 

submission, should that be appropriate. 

With respect to the commenter’s 

concern that the 2006 PM2.5 NAAQS 

infrastructure SIP submission from the 

state was not ‘‘complete’’ because it did 

not address the NSR/PSD submission, 

the EPA believes that this reflects a 

misunderstanding of the concept of 

‘‘completeness’’ as it applies in this 

situation. In section 110(k)(1)(B), under 

the rubric of ‘‘completeness finding,’’ 

the statute directs the EPA to make a 

finding whether a SIP submission meets 

minimum criteria within 60 days. If, 

however, the EPA does not make such 

a completeness finding within 60 days, 

then the submission is deemed 

complete by operation of law, no matter 

what its content, six months after 

submission. Whether by an actual 

finding, or by operation of law, the 

completeness starts the clock for action 

by the EPA on the submission under 

section 110(k)(2). In this instance, the 

state’s 2006 PM2.5 NAAQS 

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35The State’s submittal, dated November 23, 

2009, was received by EPA on November 27, 2009. 

36See Section III–J.3 of this rulemaking for the 

comments that address SILs. 

37When we say ‘modeling guidance’ in this 

response in reference to the TCEQ’s modeling 

guidance, we are including guidance based on the 

TCEQ’s ‘‘Air Quality Modeling Guidelines’’ 

prepared by the TCEQ’s New Source Review 

Permits Division, RG–25 (Revised) and ‘‘Draft 

Ozone Procedures’’ included in the docket for this 

action as ‘‘TCEQ’s Draft Ozone Procedures’’ and 

other guidance the TCEQ has given applicants in 

the past. 

38TAC § 116.160(d). Prevention of Significant 

Deterioration Requirements. 6–77, TXd118, TX110. 

As adopted by the TCEQ June 2, 2010, effective 

June 24, 2010 (6–77). Approved by the EPA 

September 15, 2010 (75 FR 55978) effective 

November 15, 2010 (TXd118). Regulations.gov 

docket EPA–R06–OAR–2010–0620. ‘‘TAC 

§ 116.160(d). All estimates of ambient 

concentrations required under this subsection shall 

be based on the applicable air quality models and 

modeling procedures specified in the EPA 

Guideline on Air Quality Models, as amended, or 

models and modeling procedures currently 

approved by the EPA for use in the state program, 

and other specific provisions made in the 

prevention of significant deterioration state 

implementation plan. If the air quality impact 

model approved by the EPA or specified in the 

guideline is inappropriate, the model may be 

modified or another model substituted on a caseby-case basis, or a generic basis for the state 

program, where appropriate. Such a change shall be 

subject to notice and opportunity for public hearing 

and written approval of the administrator of the 

EPA.’’ 

infrastructure SIP submission was 

deemed complete by operation of law 

on May 27, 2010.35 Thus, regardless of 

what that submission said with respect 

to section 110(a)(2)(C) in general, or 

with respect to the NSR/PSD 

submission in particular, the state’s 

2006 PM2.5 NAAQS infrastructure SIP 

submission was ‘‘complete’’ under the 

express terms of the statute for purposes 

of further actions. Likewise, the 

commenter’s observation that the EPA’s 

guidance for these SIP submissions 

stated that a submission must contain 

material relevant to each of the elements 

of section 110(a)(2) in order to be 

considered ‘‘complete’’ is not germane 

in this case, because that is superseded 

where the statute requires that a 

submission be deemed complete by 

operation of law. 

Finally, the commenter’s concern that 

the EPA should not approve an 

infrastructure SIP ‘‘when some elements 

are missing’’ raises an important 

question about the practical 

considerations of the EPA’s evaluation 

of infrastructure SIPs. In general, the 

EPA of course agrees that the agency 

should not approve an infrastructure 

SIP submission for a particular element 

of section 110(a)(2) if the state’s 

submission does not adequately address 

that element, whether by establishing 

that the state’s existing SIP already 

contains the necessary basic structural 

requirements, by submitting revisions to 

the existing SIP to meet those 

requirements, or by some combination 

thereof. However, the determination of 

whether ‘‘some elements are missing’’ 

necessarily includes consideration of 

the sequence and timing of SIP 

submissions, and as in the situation at 

issue, there can be complications when 

a SIP submission that is collateral to, 

but also relevant to, the infrastructure 

SIP is required to be submitted on a 

schedule that does not mesh with the 

schedule on which the EPA must act on 

the infrastructure SIP itself. In short, 

evaluating whether an element ‘‘is 

missing’’ depends upon considerations 

such as when a SIP submission relevant 

to that element was or is due to be 

submitted, whether the EPA has yet had 

the opportunity to evaluate that other 

SIP submission, and other 

considerations discussed in more detail 

earlier in this response with respect to 

the commenter’s other concerns. 

J. Comments That Address Single 

Source Ozone Modeling 

1. Comments That Address the 

Adequacy of Ozone Modeling 

Procedures 

Comment: Two commenters assert the 

TCEQ has incorrectly concluded that 

modeling demonstrations evaluating the 

ozone contributions of proposed sources 

to existing nonattainment areas are 

unnecessary as summarized in the 

comments that address SILs,36 and that 

the TCEQ has consequently issued PSD 

permits to sources in close proximity to 

those areas and also areas that are in 

near-nonattainment for ozone without 

requiring adequate modeling of each 

source’s impact on ozone levels. 

Referencing the TCEQ’s Air Quality 

Modeling Guidelines and ‘‘Draft Ozone 

Procedures’’ document,37 the 

commenters maintain that TCEQ 

routinely issues PSD permits based on 

outdated and inadequate ozone 

modeling procedures. One commenter 

adds that the ozone screening procedure 

authorized by the TCEQ’s modeling 

guidance document is partly based on, 

or equivalent to, inappropriate ‘‘Scheffe 

Tables.’’ Additionally, the commenter 

states the ozone screening method 

involves ratios of NOX to VOC without 

considering the impact of biogenic 

emissions. Two commenters state that 

the EPA has on multiple occasions 

informed the TCEQ that the ozone 

screening procedures authorized by the 

TCEQ are outdated and unreliable to 

evaluate a single source’s ozone 

modeling impact on an air quality 

control region. One commenter states 

that the Texas SIP is insufficient to 

comport with section 110(a)(2)(C) of the 

Act unless it is revised to expressly 

require case-by-case ozone impact 

analyses to be conducted for major 

sources of ozone precursors based on 

sufficient modeling techniques. The 

commenters also stated that the TCEQ 

has indicated that for some situations 

TCEQ views the SIP process as the 

appropriate vehicle for evaluating ozone 

impacts on a nearby nonattainment area, 

and this is not acceptable. 

Response: As further discussed in this 

response, the appropriate time to 

evaluate ozone impacts for major 

sources of ozone precursors on 

attainment and nearby nonattainment 

areas is in the permitting process. As we 

noted in our proposal, the TCEQ has 

adopted EPA’s Guideline on Air Quality 

Models as part of its adopted-byreference regulations.38 Therefore, we 

have concluded that the TCEQ has 

adopted the necessary requirements and 

provisions for implementing a PSD 

program as it relates to the 1997 ozone 

standard infrastructure elements, 

including 40 CFR part 51, Appendix W: 

Guideline on Air Quality Models 

(GAQM). 

The commenter has raised a number 

of concerns with individual permitting 

actions. In our proposal, we pointed out 

that the EPA has commented to the 

TCEQ on individual PSD permits 

regarding concerns with technical 

inadequacies in ozone impact analyses. 

We also pointed out that the EPA may 

address implementation of the SIP 

through separate action and such 

separate action is not precluded by 

approval of the infrastructure SIP. We 

continue to believe that specific 

concerns about individual permits are 

best addressed separately from any 

action taken specifically with regard to 

the approvability of this infrastructure 

SIP. 

In the event there is not progress in 

addressing our technical concerns based 

on these clarifications, the EPA will 

consider the other regulatory tools 

available. 

While we remain very concerned 

about the appropriateness of ambient 

impacts analyses of ozone for some past 

permitting actions, herein we are 

explaining our technical and scientific 

expectations for ozone impacts analysis 

for the state permitting authorities and 

the public. The EPA agrees with the 

commenter that Texas state permitting 

authority should not be using 

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81386 Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 

39With the exception of limited circumstances, 

these techniques would not be acceptable to use. 

Such a limited circumstance may arise in an area 

where biogenic emissions are not present in 

significant quantities, such that the overall airshed 

being evaluated is actually VOC limited (VOC 

emissions limit the formation of ozone). In this 

unique situation, through consultation with the 

EPA Regional Office, the EPA Regional Office and 

the state permitting agency may determine a 

screening approach could be technically 

appropriate using these tools. 

40Sillman, S., (1995), ‘‘The Use of NOy, H2O2, 

and HNO3 as Indicators for O3-NOX-ROG Sensitivity 

in Urban Locations,’’ J. Geophys. Res. 100, 14,175– 

14,188; Sillman, S., D. He, C. Cardelino, and R.E. 

Imhoff, (1997), ‘‘The Use of Photochemical 

Indicators to Evaluate Ozone-NOX-Hydrocarbon 

Sensitivity: Case Studies from Atlanta, New York 

and Los Angeles,’’ J. Air and Waste Mgmt. Assoc., 

47 (10), 1030–1040. (Oct. 1997); Sillman, S., (1998), 

‘‘Evaluating the Relation Between Ozone, NOX and 

Hydrocarbons: The Method of Photochemical 

Indicators,’’ EPA/600R–98/022, http://wwwpersonal.engin.umich.edu/∼sillman/ 

publications.htm; Sillman, S., and D. He, (2002), 

‘‘Some theoretical results concerning O3-NOX-VOC 

chemistry and NOX-VOC indicators,’’ J. Geophys. 

Res., 107, D22, 4659, doi:10.1029/2001JD001123, 

2002, http://www-personal.engin.umich.edu/∼

sillman/publications.htm; Ryerson et al, (2003) 

‘‘Effect of petrochemical industrial emissions of 

reactive alkenes and NOX on tropospheric ozone 

formation in Houston, Texas,’’ Journal of 

Geophysical Research, Vol. 108, No. D8, 4249, 

doi:10.1029/2002JD003070, 2003; Ryerson et al., 

(2001), ‘‘Observations of Ozone Formation in Power 

Plant Plumes and Implications for Ozone Control 

Strategies,’’ Science, April 27, 2001. 

41A copy of the TCEQ Draft Ozone Procedures 

guidance relying upon outdated EKMA diagrams is 

included in the docket for this rulemaking. 

42 Id. 

43See Section III–J.1 of this rulemaking for the 

comments that address the adequacy of ozone 

modeling procedures. 

inappropriate or outdated analytical 

tools including models or other ambient 

analysis techniques based on model 

outputs. The commenter is correct that 

the use of: (1) ‘‘Scheffe Tables,’’ (2) 

screening techniques which involve 

ratios of NOX to VOCs that do not 

consider the impact of biogenic 

emissions, or (3) screening techniques 

that use other outdated or irrelevant 

modeling, is inappropriate, except in 

limited circumstances, to evaluate a 

single source’s ozone impacts on an air 

quality control region.39 In our 

proposal, we note that these three types 

of procedures lack the appropriate 

levels of biogenic emissions, 

appropriate consideration of 

background pollutant levels, and the 

resulting chemistry conclusions as to 

whether the airshed is NOX limited or 

that a NOX source would result in an 

ozone neutral impact. NOX limited 

means that the airshed has plenty of 

VOCs from biogenics and anthropogenic 

sources such that the production of 

ozone is limited by the amount of NOX

available in the atmosphere to react 

with VOCs. Addition of NOX emissions 

in an airshed that is ‘‘NOX limited’’ will 

result in the generation of more ozone 

within the local airshed. NOX plumes 

that have a high concentration of NOX

can result in some initial ozone 

destruction, but as the plume further 

disperses the NOX reactions that create 

ozone overtake the destruction cycles 

and the overall net effect is more ozone 

molecules within the airshed. To be 

clear, using techniques that compare a 

proposed source’s VOC to NOX ratio 

without consideration of the overall 

airshed can lead to scientifically 

inappropriate conclusions.40

We note the TCEQ’s ‘‘draft ozone 

procedures’’ document relies upon 

outdated EKMA diagrams that conclude 

most situations are VOC limited and not 

NOX limited and that increases in NOX

are assessed as being ozone neutral.41

This is an inaccurate conclusion 

because it does not appropriately 

consider the total pollutant 

concentration in the local airshed. The 

procedures discussed in this response 

and in the proposal, and as found in the 

TCEQ Draft Ozone Procedures guidance, 

are fundamentally flawed with the 

exception of usage in certain limited 

circumstances (see footnote 39). The 

EPA will continue to monitor 

implementation of the PSD program as 

it relates to ozone impacts analysis and 

remain in communication with the 

state. 

More scientifically appropriate 

screening and refined analytical tools 

are available; they should be considered 

for use in conducting ambient impact 

analyses for ozone. As discussed in a 

separate comment and as called for in 

the GAQM, the approach for an ozone 

impact analysis should be determined 

in consultation with the EPA Regional 

Office on a case-by-case basis. The 

TCEQ has adopted the GAQM and 

therefore should be following the 

guidance and principles outlined in 

GAQM to properly implement the 

TCEQ’s PSD program.42 We raised our 

fundamental concerns with TCEQ’s 

conclusions that NOX-dominated 

sources result in ozone neutral impacts 

in our proposal. The TCEQ did not 

provide comments on our proposal, nor 

did it offer supporting reasons to 

disagree with the EPA’s position that 

these techniques should no longer be 

used. Therefore, we anticipate that the 

TCEQ will not use these techniques. 

The current Texas SIP facially meets 

the requirements of 40 CFR 51.166(l)(1) 

and (2). We disagree with one 

commenter’s statement that the Texas 

SIP is insufficient unless it is revised to 

explicitly require case-by-case ozone 

impact analyses for major sources of 

ozone precursors based on sufficient 

modeling techniques. We note that the 

GAQM and the Texas SIP indicates the 

state permitting authority should 

consult with the Regional Office to 

determine the appropriate analysis 

techniques, but allows flexibility 

through the consultation process to 

determine either modeling based or 

other analysis techniques may be 

acceptable. We note that not all sources 

have utilized the TCEQ’s draft ozone 

procedures. Nevertheless, if the TCEQ 

continues to utilize inappropriate 

techniques, we will consider the other 

regulatory tools available to the EPA. 

The EPA’s authority to take action, 

which may include a SIP call, a finding 

of failure to implement, or taking 

measures to address specific permits 

pursuant to the EPA’s case-by-case 

permitting oversight, is not precluded 

by its approval of this infrastructure SIP. 

2. Comments That Address Consultation 

Comment: In conjunction with the 

proposition summarized in the 

comment regarding the adequacy of 

ozone modeling procedures for 

proposed PSD permits in Texas,43 the 

commenters both indicated that the 

TCEQ routinely does not consult, nor 

does it require permit applicants to 

consult, with the EPA before approving 

a PSD permit application based upon 

those modeling procedures the 

commenters state to be inadequate. The 

commenters both cite to a specific PSD 

permit application approved by the 

TCEQ for the White Stallion Energy 

Center as illustrating the TCEQ’s 

position that an applicant may rely on 

TCEQ ozone modeling procedures other 

than those approved by the EPA without 

consulting with the EPA. The 

commenter concludes that the TCEQ 

routinely issues PSD permits based 

upon ozone impacts analyses alleged to 

be inadequate (see the comment 

regarding the adequacy of ozone 

modeling procedures and footnote 43) 

without consulting with the EPA and 

therefore the Texas PSD program is 

insufficient to assure the NAAQS are 

achieved. The commenter contends the 

EPA should require the TCEQ to amend 

its SIP-approved rules to explicitly 

include a consultation requirement for 

ozone. Two commenters state that the 

EPA should require the TCEQ to amend 

its SIP to expressly include an approval 

requirement for ozone requiring all 

applicants to submit a proposed 

modeling procedure to the EPA regional 

office and receive written approval from 

the EPA regarding that procedure before 

a PSD permit may be issued. 

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44As discussed further in another response to 

comment, the TCEQ has adopted the EPA’s GAQM 

as part of its adopted-by-reference regulations. 

Thus, Texas has the appropriate rules in place to 

require an ambient analysis of ozone impacts from 

a proposed project. 

45 In this Response to Comment, the term ‘Source’ 

represents a new or modified source that has an 

increase in emissions that is undergoing a permit 

review. 

Response: The current Texas SIP 

facially meets the requirements of 40 

CFR 51.166(l)(1) and (2). Specifically, 

the Texas SIP states ‘‘all estimates of 

ambient concentrations required under 

PSD shall be based on applicable air 

quality models and procedures specified 

in the GAQM, or other models and 

modeling procedures currently 

approved by the EPA for use in the state 

program.’’ Therefore the Texas SIP 

requires that PSD permit applications 

contain an adequate analysis of ozone 

impacts from the proposed project.44 As 

indicated by the GAQM, the methods 

used for the ozone impacts analysis for 

individual PSD permit actions are 

determined on a case-by-case basis. 40 

CFR Part 51, Appendix W, § 5.2.1.c. 

The TCEQ has adopted and 

incorporated the EPA’s PSD permitting 

regulations found at 40 CFR 51.166 and 

52.21 into its SIP. The language of the 

GAQM clearly applies to permits issued 

in Texas. Other than the merging of the 

requirements from 40 CFR 52.21(l)(1) 

and (l)(2) and 51.166(l)(1) and (l)(2) into 

one requirement (30 TAC 116.160(d)), 

the requirements of the Texas rules do 

not vary from the EPA’s GAQM. Section 

5.2.1.c. of the GAQM provides that 

‘‘model users should consult with the 

Regional Office to determine the most 

suitable approach on a case-by-case 

basis (subsection 3.2.2.).’’ Since this 

provision is incorporated into the Texas 

SIP, the infrastructure SIP is approvable 

as facially sufficient with respect to the 

analysis of impacts of proposed 

facilities on ozone concentrations in 

PSD permit reviews. 

The commenters assert, and the EPA 

acknowledges, that EPA has indicated to 

the TCEQ on multiple occasions the 

state should consult with the EPA to 

determine the most appropriate method 

to analyze ozone impacts on a case-bycase basis. Pursuant to EPA’s authority 

under the Act, EPA Region 6 has 

submitted formal comment letters in 

response to the TCEQ draft PSD permits 

indicating the Agency’s position that 

PSD permit applications and draft 

permits did not contain an adequate 

analysis of ozone impacts from the 

proposed projects, nor was the EPA 

consulted about the appropriateness, or 

lack thereof, of an ozone impacts 

analyses for the facilities. The EPA is 

concerned that the TCEQ’s consultation 

to date, including the development of a 

protocol, has not always met the EPA’s 

expectations. The TCEQ should consult 

with EPA Region 6 on a case-by-case 

basis for determining the appropriate 

techniques in developing an adequate 

ozone impact analysis. Furthermore, a 

modeling protocol should be developed 

and agreed upon by EPA Region 6, the 

TCEQ, and the applicant to ensure that 

the analysis conducted will conform to 

the recommendations, requirements, 

and principles of the GAQM. 

As indicated in Section D, the EPA is 

continuing to evaluate its review of 

implementation issues that have arisen 

at this time but believes that it may 

move forward with finalizing its 

proposed approval in the absence of a 

final EPA determination regarding the 

implementation issues. The EPA 

believes that such a determination 

would undermine the approvability of 

SIP language that is otherwise facially 

sufficient. The EPA is not determining 

in this action that the implementation 

concerns that have arisen no longer 

exist. If the EPA determines that 

outstanding implementation issues are 

sufficiently serious it will take 

appropriate action, which could include 

the use of other regulatory tools, 

including the issuance of a SIP call, 

making a finding of failure to 

implement, or taking measures to 

address specific permits pursuant to the 

EPA’s case by case permitting oversight, 

depending on the nature and extent of 

the particular implementation problems 

at issue. 

3. Comments That Address Significant 

Impact Levels (SILs) 

Comment: Two commenters state that 

the TCEQ claims it cannot determine 

whether ozone impacts from a proposed 

major stationary source upon a 

nonattainment region are significant or 

de minimis because the EPA has not 

established a significant level for ozone. 

In the absence of a SIL and perceived 

time and monetary costs of modeling 

procedures, the commenters further 

state that the TCEQ has concluded that 

modeling demonstrations evaluating the 

contribution of proposed sources upon 

existing nonattainment areas are 

unnecessary. The commenters also state 

that the TCEQ has also adopted ad-hoc 

de minimis level of 5ppb through TCEQ 

permitting orders without undergoing 

rulemaking processes to, in part find 

modeling, or detailed modeling, is not 

necessary for a number of new coal-fired 

power units. 

Response: The EPA has defined 

significant impact levels (commonly 

referred to as ‘‘SILs’’), expressed as 

ambient pollutant concentrations (e.g., 

micrograms per cubic meter or parts per 

million) for certain pollutants for the 

purpose of determining when a new or 

modified source’s modeled impact of 

that pollutant are ‘‘significant’’ for 

purposes of analyzing whether the 

Source 45 causes or contributes to a 

violation of the NAAQS predicted to 

exist after the Source commences 

operation. 40 CFR 51.165(b), 40 CFR 

52.21(l). 

The purpose of a SIL in general is to 

compare against the ambient air quality 

impacts of the proposed emissions 

increase from a proposed Source that 

have been estimated using modeling or 

other analytical techniques. There are 

generally two ways a SIL may be used 

as part of an ambient impact analyses 

for PSD review. First, if an abbreviated 

analysis of just the impact of the 

proposed Source’s emissions, without 

the inclusion of any surrounding 

sources, on ambient concentrations is 

below the SIL in all ambient air areas, 

then the proposed Source may be 

regarded as ‘‘de minimis’’ and 

considered not to cause or contribute to 

any violation of the NAAQS for that 

particular pollutant. Secondly, when 

ambient analysis/modeling of a 

proposed Source’s emissions are 

included with other surrounding 

sources within the airshed in a 

‘‘cumulative analysis,’’ a SIL can be 

utilized to compare the proposed 

Source’s impacts on any exceedances/ 

violations of ambient standards. If 

violations/exceedances are projected, 

the Source can still receive a permit if 

a conclusion is reached that the 

Source’s contribution is not significant 

(de minimis) for all projected violations/ 

exceedances of that standard. As we 

discuss further below, a SIL can aid in 

making a de minimis determination, but 

is not necessary to conduct an ambient 

impact analysis. 

Therefore, when a SIL exists it is 

sometimes used in the First situation as 

an initial screening tool, in that when a 

proposed Source’s impact of a particular 

pollutant is below the SIL at all 

locations and, therefore, not 

‘‘significant,’’ there is no need to require 

a ‘‘cumulative analysis.’’ The 

‘‘cumulative analysis’’ entails 

completing a more thorough ambient 

impact analysis to consider whether the 

proposed Source’s impact along with 

the impact of other existing and 

surrounding sources in the area of 

concern will result in any violations/ 

exceedances of the NAAQS after the 

proposed Source commences operation. 

The use of a SIL in this First situation 

as a screening procedure is acceptable 

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46This does not preclude EPA from developing a 

SIL in the future. If we were to do so, however, we 

note that there are some technical issues specific to 

ozone that would need to be considered. 

47 Guidance Memorandums: ‘‘Guidance 

Concerning the Implementation of the 1-hour S02 

NAAQS for the Prevention of Significant 

Deterioration Program’’ From Stephen D. Page, 

Director OAQPS, August 23, 2010 and ‘‘Guidance 

Concerning the Implementation of the 1-hour N02 

NAAQS for the Prevention of Significant 

Deterioration Program’’ From Stephen D. Page, 

Director OAQPS, June 29, 2010. 

48 40 CFR Part 51 Appendix W—Guideline on Air 

Quality Models including (1.0–3.3), (5.2.1.c), and 

(10). 

in the context of most pollutants 

regulated by PSD. Ozone is a unique 

pollutant in that it is not directly 

emitted by sources in most 

circumstances but is a result of chemical 

reactions in the atmosphere and is 

generated from emissions of precursors 

of ozone (VOC and NOX) that react with 

other pollutants that are already present 

in the local atmosphere. The amount of 

ozone that may be created from a 

proposed Source of ozone precursors is 

dependent on a number of variables 

including the existing concentrations of 

VOC and NOX in the airshed the 

proposed Source would impact. Because 

of this chemical interaction of the 

Source’s pollutants with other airshed 

pollutants it would be technically 

inappropriate to attempt to model 

impacts on ozone levels from a 

proposed Source without also 

considering the pollutant loading in the 

local airshed. This technical issue is one 

of the reasons that development of a SIL 

and performing ambient impact 

analyses for ozone is more complicated 

than for other pollutants. The 

commenter asserts that TCEQ has 

concluded the lack of a SIL makes it 

unnecessary for TCEQ to conduct an 

ambient analysis for impacts on ozone 

levels for a proposed Source. We are 

discussing the two ways that SILs are 

commonly used to explain and 

conclude that the lack of a specific SIL 

for ozone does not limit TCEQ (or 

permit applicants) from conducting an 

ambient impact analysis for impacts on 

ozone levels from a proposed Source. 

We further discuss in this response and 

other responses in this notice the 

regulatory requirements and EPA’s 

expectations pertaining to completing 

ozone impact analyses for proposed 

Sources. 

EPA has not yet established a 

significant impact level (SIL) for ozone 

in its regulations (40 CFR 51.165(b), 

51.166(k)(2), 52.21(k)(2)) or identified a 

specific SIL for ozone in any guidance.46

There are other ambient standards for 

which we have not formally 

promulgated SILs at the time of the 

drafting of this Response, such as the 1- 

hour NO2 and SO2 standards. In those 

cases, we have issued guidance that 

includes interim SILs that can be used 

by states. In our recent guidance for SO2

(and also NO2) modeling, we indicated 

‘‘The application of any SIL that is not 

reflected in a promulgated regulation 

should be supported by a record in each 

instance that shows the value represents 

a de minimis impact on the 1-hour SO2

standard’’ (NO2 guidance is the same 

quote with NO2 replacing SO2).47 In the 

same SO2 and NO2 guidance documents, 

the EPA also indicated that states do not 

have to use the EPA’s recommended 

interim SILs and can use different 

values if supportable by a record in each 

instance. 

Even if a generally applicable SIL has 

not been defined, the permitting 

authority may choose to define the de 

minimis or SIL level through 

rulemaking, development of guidance or 

on a case-by-case basis, but the 

permitting authority must provide an 

adequate record to support the de 

minimis/SIL level decision. This is the 

current situation with the 1997 and 

2008 8-hour ozone standards. The lack 

of a SIL (formal or interim) does not 

create an exemption from conducting 

the analysis required by the PSD 

provisions at 40 CFR 52.21 (k) and (m). 

Texas has adopted by reference 

provisions at 40 CFR 52.21(k) and (m) 

into their SIP, which require that an 

ambient impact analysis be conducted 

for the allowable emissions increase 

from each proposed new or modified 

Source, in conjunction with all other 

applicable emission increases or 

reductions (including secondary and 

precursor emissions). PSD regulations 

require an ambient impact analysis for 

ozone when precursor emissions of VOC 

and/or NOX are projected to equal or 

exceed the 40 tpy threshold levels. We 

note that 52.21(i) and 51.166(i) are 

potentially applicable in this context. 

Footnote 1 to sections 51.166(i)(5)(i) and 

52.21(i)(5)(i) of EPA’s regulations says 

the following: ‘‘No de minimis air 

quality level is provided for ozone. 

However, any net emission increase of 

100 tons per year or more of volatile 

organic compounds or nitrogen oxides 

subject to PSD would be required to 

perform an ambient impact analysis, 

including the gathering of air quality 

data.’’ EPA previously included a 

similar note in a guidance listing 

Significant Impact Levels. In the 1990 

NSR Workshop Manual (Draft, October 

1990), page C.28, footnote b on this page 

says the following with respect to the 

applicable one-hour ozone NAAQS: ‘‘No 

significant ambient impact 

concentration has been established. 

Instead, any net emissions increase of 

100 tons per year of VOC subject to PSD 

would be required to perform an 

ambient impact analysis.’’ Based on 

these statements, this 100 tpy value has 

been used by some permitting 

authorities in a manner similar to a SIL 

to assess whether a detailed air quality 

analysis should be conducted for ozone 

in a similar fashion to the ‘‘First’’ 

method of using a SIL discussed above. 

While these statements suggest a less 

rigorous analysis may be appropriate for 

sources emitting less than 100 tpy of 

these precursors (and greater than or 

equal to 40 tpy), they have not been 

revisited by EPA since the promulgation 

of the 8-hour ozone NAAQS (which 

included revisions to include NOX as an 

ozone precursor). EPA is not 

categorically concluding that every 

source emitting less than 100 tpy of 

NOX or 100 tpy of VOCs will not cause 

or contribute to a violation of the 

current ozone NAAQS. EPA believes it 

unlikely a source emitting below these 

levels would contribute to such a 

violation of the 1997 8-hour ozone 

NAAQS, but consultation with an EPA 

regional office should still be conducted 

in accordance with section 5.2.1.c. of 

Appendix W when reviewing an 

application for sources with emissions 

of these ozone precursors below 100 

tpy. 

For ozone, a proposed Source’s 

emission impacts are dependent upon 

the ozone and ozone precursor levels 

present in the surrounding airshed. In 

addition, meteorological parameters 

such as wind speed and direction, 

temperature, solar radiation influx, and 

atmospheric stability are also important 

factors. Therefore determination of a 

SIL/de minimis level and conducting an 

ambient impact analysis is dependent 

on consideration of a number of issues 

and as previously noted, the permitting 

authority must support a SIL/de 

minimis determination with an 

adequate record. As discussed in other 

Responses in this notice 40 CFR Part 51, 

Appendix W—Guideline on Air Quality 

Models includes discussion on selection 

of appropriate models or analysis tools, 

the procedures, process and methods for 

conducting analyses, the guiding 

principles in completing ambient 

impact analyses and the applicant and 

the permitting authority working with 

EPA specifically in the case of 

completing an acceptable ambient 

impact analysis for ozone.48 Given the 

variable factors related to ambient 

impact analyses for ozone we note that 

40 CFR Part 51, Appendix W 1.0(e) 

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49See PM2.5 NSR final rule RTC at 75 FR 64864, 

64891, October 20, 2010. 

50Alabama Power v. Costle, 636 F.2d 323, 360 

(D.C. Cir. 1979); Prevention of Significant 

Deterioration (PSD) for Particulate Matter Less than 

2.5 Micrometers (PM2.5)—Increments, Significant 

Impact Levels (SILs), and Significant Monitoring 

Concentration (SMC) Final Rule, 75 FR 64899 

(October 20, 2010); In Re Mississippi Lime 

Company, U.S. EPA Environmental Appeals Board, 

PSD Appeal No. 11–01, August 9, 2011. 

51 In Re Mississippi Lime Company, U.S. EPA 

Environmental Appeals Board, PSD Appeal No. 11– 

01, August 9, 2011. 

52 40 CFR Appendix W Parts 1, 2, 3 including 

3.0(c), 3.2.2(a), 3.3(a & b), 10. 

53See email from Daniel Menendez, Supervisor of 

the Air Quality Modeling Group for New Source 

Review TCEQ, to Erik Snyder, EPA Region 6 dated 

November 19, 2011, in the docket for this 

rulemaking. 

indicates that in all cases, however, the 

analysis applied to a given situation 

should be the one that provides the 

most accurate representation of 

atmospheric transport, dispersion, and 

chemical transformations in the area of 

interest. Once an analysis of the 

potential change in ozone levels is 

completed in accordance with 40 CFR 

40 Appendix W, the state or permitting 

authority may still have to determine if 

the change in ozone levels is to be 

considered ‘‘de minimis,’’ as opposed to 

‘‘significant.’’ If no exceedances/ 

violations or near exceedances/ 

violations, then the permitting authority 

may choose to not define a SIL/de 

minimis level if they determine it is not 

necessary for the review of the permit 

application. If exceedances/violations 

were projected by the ambient impact 

analysis, the state or permitting 

authority will need to make a 

determination of a SIL or de minimis 

level in order to conclude that the 

permit for the proposed emission 

increases would/would not cause or 

contribute to ozone exceedances. We do 

note that a SIL (regulatorily developed, 

interim, or case-by-case) does aid in the 

review process and can provide context 

for the public and stakeholders of the 

level of the impacts in addition to when 

it is necessary for reaching a conclusion 

of whether the proposed emission 

increases would/would not cause or 

significantly contribute to ozone 

exceedances. Without a SIL developed 

by the EPA or the permitting authority, 

it is difficult to determine whether the 

Source’s contribution to a violation 

(exceedance) is de minimis or 

significant, and any increases could 

contribute to an estimated violation. To 

address the commenter’s statement, a 

SIL is not necessary for conducting an 

ambient impact analysis for a proposed 

Source’s impact on ozone levels and 

lack of a SIL is not a reason for not 

requiring an ambient impact analysis 

when required by PSD regulations. 

Moreover, the state has the authority to 

develop a SIL for ozone if it determines 

a SIL is necessary or beneficial in 

analyzing ambient impact analyses for 

ozone. 

As explained earlier in this response 

and this rulemaking and in prior EPA 

rulemakings,49 a SIL is not a 

prerequisite to conducting an air quality 

analysis for criteria pollutants, and the 

EPA maintains this position with 

respect to ozone. The EPA has also 

stated the absence of an EPApromulgated SIL does not justify an 

exemption from the air quality analysis. 

In summary, the absence of a SIL for the 

8-hour ozone standard does not change 

the regulatory requirement to conduct 

an ambient analysis of impacts on ozone 

levels when required by 40 CFR 52.21. 

Furthermore, states are not precluded 

from developing and applying their own 

SILs for ozone in the absence of one 

established by EPA and demonstrating 

that a proposed Source would impact 

ozone levels by only a de minimis 

amount and thus that the proposed 

emissions increase would not be 

considered to cause or contribute to an 

exceedance or violation of the ozone 

NAAQS. When applying a threshold 

value like a SIL to conclude an impact 

is de minimis, the permitting agency 

must follow a rational approach to 

determine what level of emission is a de 

minimis impact.50 The EPA affirms this 

principle in this rulemaking, and 

maintains that to the extent a state 

utilizes and/or develops a SIL in the 

absence of an established one by the 

EPA for determining the significance of 

an ozone impact, the state’s SIL must be 

rooted in a rational basis addressing the 

specific situation for which it is being 

used. For a state-developed SIL level 

used in a permitting action, the 

administrative record must include 

sufficient rationale to demonstrate that 

an air quality impact at or below the SIL 

is de minimis in nature and would not 

cause a violation of the NAAQS. 

Accordingly, it should contain an 

explanation of how the state or 

permitting agency applying the SIL 

derived the value to support the SIL as 

a threshold for de minimis 

determinations. Additionally, the 

administrative record should 

substantiate the reasoning for employing 

a particular SIL. Thus, when a state or 

permitting agency applies an alternate 

SIL in the absence of an EPAestablished SIL, the administrative 

record should elucidate both the 

reasoning and the methodology used to 

derive the SIL, and also explain the 

rationale for concluding the SIL is 

reasonable for that specific analysis.51

Since this is a case-by-case 

determination that the EPA will review 

as part of our oversight of state 

permitting actions and analyses 

conducted in accordance with 

Appendix W,52 the EPA would like to 

work with the state in the development 

of case a specific and/or interim SIL as 

the state deems necessary in 

determining if the proposed Source’s 

impact is significant, and if such impact 

would contribute to an exceedance and/ 

or violation of the standard. 

The commenters state that the TCEQ 

has also adopted an ad-hoc de minimis 

level of 5 ppb through TCEQ permitting 

orders without undergoing rulemaking 

processes to in part find modeling, or 

detailed modeling, is not necessary for 

a number of new coal-fired power units. 

As we discuss in our response above, an 

ad hoc or interim SIL may be developed 

and applied, but we are clear that 

development of an interim/ad hoc de 

minimis level (or other de minimis/SIL 

determinations) would need to be fully 

supported by a record (administrative 

and technical) that would support the 

use of the de minimis level in a specific 

circumstance. We have not received an 

administrative record from TCEQ or any 

supporting technical analyses that 

would suggest the use of an ad hoc/ 

interim de minimis level of 5 ppb in a 

PSD permitting action for a coal fired 

power plant in Texas. The TCEQ has 

also clarified that they have never used 

the 5 ppb as a de minimis level.53 We 

note that monitored ozone levels vary 

widely throughout the large state of 

Texas, and depending on the location of 

a source, this may impact the level of 

concern with a particular source in 

selection of a de minimis value in a 

case-specific situation. If the TCEQ were 

to utilize an ad hoc/interim de minimis 

level as part of a PSD permitting action, 

we would review the administrative and 

technical record supporting the de 

minimis level at that time. As we 

expressed above, we would like to work 

with the TCEQ if they choose to develop 

a SIL/de minimis level. 

K. Comments That Address Cumulative 

Air Quality Impacts 

Comment: The commenter 

acknowledges that the Texas SIP 

incorporates federal requirements for 

permit applicants to perform a 

cumulative impacts analysis, the 

commenter continues though by citing 

statements made by the TCEQ staff 

through communications and 

depositions regarding particular permit 

processes for proposed coal-fired power 

plants as reflective of TCEQ stating it 

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54See Section III–J.2 of this rulemaking for our 

responses to the comments that address 

consultation. 

55See Section III–J.1 of this rulemaking for our 

RTCs that address the adequacy of ozone modeling 

procedures. 

56See Section III–J.3 of this rulemaking for our 

RTCs that address SILs. 

does not adhere to the requirements. 

The commenter indicates that as a result 

of TCEQ’s allegedly stated position it is 

impossible to determine the extent of 

cumulative air quality impacts from the 

proposed facilities. 

Response: The commenter 

acknowledges and EPA confirms the 

facial sufficiency of the Texas SIP 

requiring permit applicants to perform a 

cumulative impacts analysis by 

incorporating federal requirements. As 

we note in this response and in our 

responses to comments that address 

consultation 54 in this action, the TCEQ 

has adopted the EPA’s Guideline on Air 

Quality Models. The EPA expects 

modeling analyses conducted for PSD 

permits are conducted in accordance 

with the recommendations, 

requirements, and principles of the 

GAQM, including conducting a 

cumulative analysis of ozone impacts. 

As discussed in other responses to 

comments regarding conducting ozone 

modeling 55 or analysis of ozone 

impacts,56 the unique nature of ozone 

chemistry and the interaction between a 

proposed or modified source’s 

emissions necessitates consideration of 

local airshed pollutant loading of ozone 

precursors and ozone levels to conduct 

an appropriate technical analysis. 

Therefore a ‘‘cumulative analysis’’ 

approach of inclusion of other 

surrounding sources and background 

concentrations is necessary to achieve 

an ambient impact analysis of a 

proposed increase in emissions from a 

proposed or modified source. 

As indicated in Section D, the EPA is 

continuing to evaluate its review of 

implementation issues that have arisen 

at this time but believes that it may 

move forward with finalizing its 

proposed approval of a facially 

sufficient SIP in the absence of a final 

EPA determination regarding the 

implementation issues. 

IV. Final Action 

We are partially approving and 

partially disapproving the submittals 

provided by the State of Texas to 

demonstrate that the Texas SIP meets 

the requirements of Section 110(a)(1) 

and (2) of the Act for the 1997 ozone 

and 1997 and 2006 PM2.5 NAAQS. 

We are determining that the current 

Texas SIP meets the infrastructure 

elements for the 1997 ozone and 1997 

and 2006 PM2.5 NAAQS listed below: 

Emission limits and other control 

measures (110(a)(2)(A) of the Act); 

Ambient air quality monitoring/data 

system (110(a)(2)(B) of the Act); 

Program for enforcement of control 

measures (110(a)(2)(C) of the Act), 

except for the portion that addresses 

GHGs; 

Interstate transport, pursuant to 

section (110(a)(2)(D)(ii) of the Act), 

except for the portion that addresses 

GHGs; 

Adequate resources (110(a)(2)(E) of 

the Act); 

Stationary source monitoring system 

(110(a)(2)(F) of the Act); 

Emergency power (110(a)(2)(G) of the 

Act); 

Future SIP revisions (110(a)(2)(H) of 

the Act); 

Consultation with government 

officials (110(a)(2)(J) of the Act); 

Public notification (110(a)(2)(J) of the 

Act); 

Prevention of significant deterioration 

(110(a)(2)(J) of the Act), except for the 

portion that addresses GHGs; 

Visibility protection (110(a)(2)(J) of 

the Act); 

Air quality modeling data 

(110(a)(2)(K) of the Act); 

Permitting fees (110(a)(2)(L) of the 

Act); and 

Consultation/participation by affected 

local entities (110(a)(2)(M) of the Act). 

We are determining that the current 

Texas SIP does not meet the 

infrastructure elements for the 1997 

ozone and 1997 and 2006 PM2.5 NAAQS 

listed below: 

Program for enforcement of control 

measures (110(a)(2)(C) of the Act), only 

as it relates to GHGs; 

Interstate transport, pursuant to 

section 110(a)(2)(D)(ii) of the Act, only 

as it relates to GHGs; and 

Prevention of significant deterioration 

(110(a)(2)(J) of the Act), only as it relates 

to GHGs. 

We are also approving the Texas 

Interstate Transport SIP provisions that 

address the requirement of section 

110(a)(2)(D)(i)(II) that emissions from 

sources in Texas do not interfere with 

measures required in the SIP of any 

other state under part C of the CAA to 

prevent significant deterioration of air 

quality, except as they relate to GHGs 

for the 1997 ozone and 1997 and 2006 

PM2.5 NAAQS. 

We are disapproving the portion of 

the Texas Interstate Transport SIP 

provisions that address the requirement 

of section 110(a)(2)(D)(i)(II), as it relates 

to GHGs, that emissions from sources in 

Texas do not interfere with measures 

required in the SIP of any other state 

under part C of the CAA to prevent 

significant deterioration of air quality, 

for the 1997 ozone and 1997 and 2006 

PM2.5 NAAQS. We will act on the 

remaining three SIP elements regarding 

interstate transport, per section 

110(a)(2)(D)(i) of the Act in separate 

rulemakings. 

We are also approving the following 

revisions to 30 TAC 101.1 and 30 TAC 

116.12, submitted by the TCEQ on 

March 8, 2011, as part of the Texas NSR 

SIP: 

1. The substantive revisions to the 

definition of Maintenance area at 30 

TAC 101.1. 

2. The substantive revisions to the 

definition of Nonattainment area at 30 

TAC 101.1. 

3. The substantive revisions to the 

definition of Reportable quantity at 30 

TAC 101.1. 

4. The non-substantive revisions to 

the definition of Volatile organic 

compound at 30 TAC 101.1. 

5. The non-substantive revision to the 

title of 30 TAC 116.12 from 

Nonattainment Review Definitions to 

Nonattainment and Prevention of 

Significant Deterioration Review 

Definitions. 

6. The non-substantive revisions to 

the introductory paragraph at 30 TAC 

116.12. 

7. The substantive revisions that add 

Federally Regulated NSR pollutant to 

the definitions at 30 TAC 116.12. 

8. The non-substantive changes to 

rename the definition of Major facility/ 

stationary source at 30 TAC 116.12 to 

Major stationary source and the 

substantive changes making the 

definition consistent with 40 CFR 

51.166(b)(1). 

9. The non-substantive changes to the 

definition of Major modification at 30 

TAC 116.12 that provide editorial 

revisions, and the substantive changes 

making the definition consistent with 40 

CFR 51.165(a)(1) and 40 CFR 

51.166(b)(1) and (2), and which address 

the grounds for the September 15, 2010 

disapproval of this definition. 

The EPA is taking these actions in 

accordance with section 110 and part C 

of the Act and the EPA’s regulations and 

consistent with EPA guidance. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to act on state law as 

meeting Federal requirements and does 

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Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 81391 

not impose additional requirements 

beyond those imposed by state law. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This final 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 Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This final action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

SIP disapproval under section 110 and 

subchapter I, part D of the CAA will not 

in-and-of itself create any new 

information collection burdens but 

simply acknowledges that a required 

program is not included in 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 the 

September 22, 2011 proposed rule on 

small entities, small entity was 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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of the September 22, 2011 (76 

FR 58748) 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 CAA will not in-and-of itself 

create any new requirements but simply 

acknowledges that a required program is 

not included in 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 CAA 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. 

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.’’ The 

EPA has determined that the 

disapproval action does not include a 

Federal mandate that may result in 

estimated costs of $100 million or more 

to either State, local, or tribal 

governments in the aggregate, or to the 

private sector. This action acknowledges 

that certain pre-existing requirements 

are not in the SIP 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 the 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 acknowledges that a required 

program is not included in the SIP and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

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 (65 FR 67249, November 9, 

2000), because this action neither 

imposes substantial direct compliance 

costs on tribal governments, nor 

preempts tribal law. Therefore, the 

requirements of section 5(b) and 5(c) of 

the Executive Order do not apply to this 

rule. Consistent with EPA policy, the 

EPA nonetheless offered consultation to 

Tribes regarding this rulemaking action. 

No comments were received from the 

Tribes concerning this rulemaking 

action. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it is not 

an economically significant regulatory 

action based on health or safety risks 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997). This SIP 

disapproval under section 110 and 

subchapter I, part D of the CAA will not 

in-and-of itself create any new 

regulations but simply acknowledges 

that a required program is not included 

in the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action 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 the 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 the 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

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81392 Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 

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 CAA. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA lacks the discretionary 

authority to address environmental 

justice in this action. In reviewing SIP 

submissions, the EPA’s role is to 

approve or disapprove state choices, 

based on the criteria of the CAA. 

Accordingly, this action merely 

acknowledges that a required program is 

not included in the SIP under section 

110 and subchapter I, part D of the CAA 

and will not in-and-of itself create any 

new requirements. Accordingly, it does 

not provide the EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this action 

and other required information to the 

U.S. Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

L. Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by February 27, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

M. Statutory Authority 

The statutory authority for this action 

is provided by section 110 of the CAA, 

as amended (42 U.S.C. 7410). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxides, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: December 16, 2011. 

Al Armendariz, 

Regional Administrator, Region 6. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart SS—Texas 

■ 2. In Section 52.2270: 

■ a. The table in paragraph (c) entitled 

‘‘EPA Approved Regulations in the 

Texas SIP’’ is amended as follows: 

■ i. Revising the entry under ‘‘Chapter 

101—General Air Quality Rules’’ for 

Section 101.1. 

■ ii. Revising the entry under ‘‘Chapter 

116 (Reg 6)—Control of Air Pollution by 

Permits for New Construction or 

Modification’’ for Section 116.12. 

■ b. Paragraph (e) is amended by adding 

a new entry for ‘‘Infrastructure and 

Interstate Transport for the 1997 Ozone 

and the 1997 and 2006 PM2.5 NAAQS’’ 

at the end of the second table in 

paragraph (e) entitled ‘‘EPA Approved 

Nonregulatory Provisions and QuasiRegulatory Measures in the Texas SIP.’’ 

The amendments read as follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject State approval/ 

submittal date EPA approval date Explanation 

*******

Chapter 101—General Air Quality Rules 

Subchapter A— 

General Rules 

Section 101.1 ............. Definitions .................. 1/23/2006; 2/9/2011; 

5/26/2011 

11/10/2010 75 FR 

68989; 12/28/2012, 

[Insert FR page 

number where document begins].

Except for the definitions listed immediately 

below, the SIP retains the Section 101.1 

Definitions, adopted 1/23/2006 and approved 11/10/2010 (75 FR 68989); the following revised definitions adopted 2/9/ 

2011 and 5/26/2011 are approved: maintenance area; nonattainment area; reportable quantity; and volatile organic compound. 

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Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 81393 

EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued 

State citation Title/subject State approval/ 

submittal date EPA approval date Explanation 

*******

Chapter 116 (Reg 6)—Control of Air Pollution by Permits for New Construction or Modification 

Subchapter A— 

Definitions 

*******

Section 116.12 ........... Nonattainment Review 

Definitions; Nonattainment and Prevention of Significant Deterioration 

Review Definitions.

8/20/2003; 2/9/2011 ... 3/20/2009 74 FR 

11851; 12/28/2012, 

[Insert FR page 

number where document begins].

Except for the definitions listed immediately 

below, the SIP retains the Section 116.12 

Nonattainment Review Definitions, adopted 8/20/2003 and approved 3/20/2009 (74 

FR 11851); the following revisions adopted 

2/9/2011 are approved: the revised title 

and the introductory paragraph at 116.12, 

and the definitions for Federally Regulated 

NSR pollutant, Major stationary source, 

and Major modification. 

*******

* * * * * 

(e) * * * 

* * * * * 

EPA-APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP 

Name of SIP provision 

Applicable 

geographic or nonattainment area 

State submittal date/ 

effective date EPA approval date Explanation 

*******

Infrastructure and 

Interstate Transport 

for the 1997 Ozone 

and the 1997 and 

2006 PM2.5 NAAQS.

Statewide ................... 12/12/2007, 3/11/ 

2008, 4/4/2008, 11/ 

23/2009 

12/28/2012, [Insert FR 

page number where 

document begins].

Approval for CAA elements 110(a)(2)(A), (B), 

(E), (F), (G), (H), (K), (L), and (M). Approval for CAA elements 110(a)(2)(C), 

(D)(ii) and (J), except for the portions that 

address Greenhouse Gas (GHG) emissions. Approval for revisions to prohibit interference with PSD in any other state 

(CAA element 110(a)(2)(D)(i)(II)), except 

for the portion that addresses GHG emissions. 

[FR Doc. 2011–33253 Filed 12–27–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2011–0972; FRL–9329–9] 

Extension of Tolerances for 

Emergency Exemptions (Multiple 

Chemicals) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation extends timelimited tolerances for the pesticides 

listed in Unit II. of the SUPPLEMENTARY

INFORMATION. These actions are in 

response to EPA’s granting of emergency 

exemptions under section 18 of the 

Federal Insecticide, Fungicide, and 

Rodenticide Act (FIFRA) authorizing 

use of these pesticides. Section 408(l)(6) 

of the Federal Food, Drug, and Cosmetic 

Act (FFDCA) requires EPA to establish 

a time-limited tolerance or exemption 

from the requirement for a tolerance for 

pesticide chemical residues in food that 

will result from the use of a pesticide 

under an emergency exemption granted 

by EPA. 

DATES: This regulation is effective 

December 28, 2011. Objections and 

requests for hearings must be received 

on or before February 27, 2012, and 

must be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2011–0972. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

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