48480 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

thereby left CAIR in place in order to 

‘‘temporarily preserve the 

environmental values covered by CAIR’’ 

until EPA replaces it with a rule 

consistent with the Court’s opinion. Id. 

at 1178. The Court directed EPA to 

‘‘remedy CAIR’s flaws’’ consistent with 

its July 11, 2008, opinion, but declined 

to impose a schedule on EPA for 

completing that action. Id. 

According to 40 CFR 51.125, each 

state submitting a CAIR SIP revision 

must provide for emissions reporting 

requirements of SO2 and NOX emissions 

data. EPA is proposing to approve 

revisions to Alabama’s Section 335–3– 

1–.14 and addition of Section 335–3–1– 

.16 to fulfill this requirement. 

Consistent with 40 CFR 51.121, these 

rule revisions allow the State to make 

the transition from the NOX budget 

trading program (NOX SIP Call) to the 

CAIR NOX ozone season trading 

program, beginning with the 2009 ozone 

season. Alabama’s NOX budget trading 

program does not apply to any ozone 

season after the 2008 ozone season. 

This proposed action is consistent 

with the Court’s decision in North 

Carolina v. EPA discussed above. While 

the Court identified several issues with 

CAIR, the rule was not vacated because 

of the loss of environmental benefit 

generated by the rule. As EPA works to 

remedy CAIR to satisfy the Court, CAIR 

remains in effect, including its trading 

programs. Currently, Alabama’s NOX

SIP Call trading program ends after the 

2008 ozone season, and so to continue 

the environmental benefits of the 

trading program, consistent with CAIR 

and the Court’s opinion, Alabama must 

revise its SIP, as proposed, to transition 

into the CAIR NOX trading program. 

IV. Proposed Action 

EPA is proposing to approve the 

aforementioned revisions, specifically, 

Chapter 335–3–1, Sections 335–3–1–.14, 

and 335–3–1–.16 into the Alabama SIP. 

These revisions were submitted by 

ADEM on March 7, 2007, and are 

consistent with EPA regulations, policy, 

and 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, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: September 11, 2009. 

J. Scott Gordon, 

Acting Regional Administrator, Region 4. 

[FR Doc. E9–22904 Filed 9–22–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0032; FRL–8958– 

6] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Flexible Permits 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing disapproval 

of submittals from the State of Texas, 

through the Texas Commission on 

Environmental Quality (TCEQ) to revise 

the Texas SIP to include a new type of 

NSR permitting program, Flexible 

Permits (the Texas Flexible Permits 

State Program or the Program). EPA 

proposes disapproval of the Texas 

Flexible Permits State Program because 

it does not meet the Minor NSR SIP 

requirements nor does it meet the NSR 

SIP requirements for a substitute Major 

NSR SIP revision. We are proposing 

action under section 110, part C, and 

part D, of the Federal Clean Air Act (the 

Act or CAA). EPA is taking comments 

on this proposal and intends to take a 

final action. 

DATES: Any comments must arrive by 

November 23, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2005–TX–0032 by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• U.S. EPA Region 6 ‘‘Contact Us’’ 

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

r6coment.htm. Please click on ‘‘6PD’’ 

(Multimedia) and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Stanley M. Spruiell at 

spruiell.stanley@epa.gov. 

• Fax: Mr. Stanley M. Spruiell, Air 

Permits Section (6PD–R), at fax number 

214–665–7263. 

• Mail: Mr. Stanley M. Spruiell, Air 

Permits Section (6PD–R), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

• Hand or Courier Delivery: Stanley 

M. Spruiell, Air Permits Section (6PD– 

R), Environmental Protection Agency, 

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1445 Ross Avenue, Suite 1200, Dallas, 

Texas 75202–2733. Such deliveries are 

accepted only between the hours of 8 

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

legal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2005– 

TX–0032. EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

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

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

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittals, which are also 

part of the EPA docket, are also 

available for public inspection at the 

State Air Agency during official 

business hours by appointment: Texas 

Commission on Environmental Quality, 

Office of Air Quality, 12124 Park 35 

Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Stanley M. Spruiell, Air Permits Section 

(6PD–R), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–7212; fax number 

(214) 665–7263; e-mail address 

spruiell.stanley@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the 

following terms have the meanings 

described below: 

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

• ‘‘Act’’ and ‘‘CAA’’ mean the Clean 

Air Act. 

• ‘‘40 CFR’’ means Title 40 of the 

Code of Federal Regulations—Protection 

of the Environment. 

• ‘‘SIP’’ means State Implementation 

Plan established under section 110 of 

the Act. 

• ‘‘NSR’’ means new source review, a 

phrase intended to encompass the 

statutory and regulatory programs that 

regulate the construction and 

modification of stationary sources as 

provided under CAA section 

110(a)(2)(C), CAA Title I, parts C and D, 

and 40 CFR 51.160 through 51.166. 

• ‘‘Minor NSR’’ means NSR 

established under section 110 of the Act 

and 40 CFR 51.160. 

• ‘‘NNSR’’ means nonattainment NSR 

established under Title I, section 110 

and part D of the Act and 40 CFR 

51.165. 

• ‘‘PSD’’ means prevention of 

significant deterioration of air quality 

established under Title I, section 110 

and part C of the Act and 40 CFR 

51.166. 

• ‘‘Major NSR’’ means any new or 

modified source that is subject to NNSR 

and/or PSD. 

• ‘‘Program’’ means the SIP revision 

submittals from the TCEQ concerning 

the Texas Flexible Permits State 

Program. 

• ‘‘TSD’’ means the Technical 

Support Document for this action. 

• ‘‘NAAQS’’ means any national 

ambient air quality standard established 

under 40 CFR part 50. 

Table of Contents 

I. What Action Is EPA Proposing? 

II. What Are the Other Relevant Proposed 

Actions on the Texas Permitting SIP 

Revision Submittals? 

III. What Has the State Submitted? 

IV. Is the Texas Flexible Permits State 

Program a Submittal for a Major or Minor 

NSR SIP Revision? 

A. Description of the Submitted Program 

B. Is the Submitted Program Clearly a 

Minor NSR SIP Revision? 

V. What Is EPA’s Evaluation of the Submitted 

Texas Flexible Permits State Program as 

a Substitute Major NSR SIP Revision? 

A. What Are the Requirements for EPA’s 

Review of a Submitted Major NSR SIP 

Revision? 

B. Does the Submitted Program Prohibit 

Circumvention of Major NSR? 

C. Does the Submitted Program Meet the 

Major NSR SIP Requirements for 

Applicability Determinations? 

D. Does the Submitted Program Meet the 

CAA and Major NSR Applicability 

Determination Criteria? 

E. Does the Submitted Program Meet the 

Major NSR SIP Requirements for 

Enforceability? 

F. Does the Submitted Program Meet the 

Major NSR SIP Public Participation 

Requirements? 

G. Does the Submitted Program Meet 

Section 110(l) of the Act for a Major NSR 

SIP Revision? 

H. What Is EPA Summary of Whether the 

Submitted Program Meets the 

Requirements for a Substitute Major NSR 

SIP Program? 

VI. What Is EPA’s Evaluation of the 

Submitted Texas Flexible Permits State 

Program as a Minor NSR SIP Revision? 

A. Is the Submitted Program Clearly a 

Minor NSR SIP Revision? 

B. Does the Submitted Program Meet the 

Minor NSR SIP Requirements for 

Establishing the Emissions Cap? 

C. Does the Submitted Program Meet the 

Minor NSR SIP Enforcement 

Requirements? 

D. Does the Submitted Program Meet the 

Minor NSR SIP Requirements for 

Revision of Existing Major NSR Permits? 

E. Does the Submitted Program Meet the 

Minor NSR SIP Public Participation 

Requirements? 

F. Does the Submitted Program Meet 

Section 110(l) of the Act for a Minor NSR 

SIP Revision? 

G. What Is EPA Summary of Whether the 

Submitted Program Meets the 

Requirements for a Minor NSR SIP 

Program? 

VII. Proposed Action 

VIII. Statutory and Executive Order Reviews 

I. What Action Is EPA Proposing? 

We are proposing to disapprove the 

Texas Flexible Permits State Program, as 

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submitted by Texas in Title 30 of the 

Texas Administrative Code (30 TAC) at 

30 TAC Chapter 116—Control of Air 

Pollution by Permits for New 

Construction or Modification, because it 

does not meet certain provisions of the 

Act and EPA’s NSR regulations. This 

includes the following regulations 

under Chapter 116: 30 TAC 

116.110(a)(3), 30 TAC Subchapter G— 

Flexible Permits, the definitions in 30 

TAC 116.13, Flexible Permits, and the 

definition in 30 TAC 116.10(11)(F) of 

‘‘modification of existing facility.’’ It is 

EPA’s position that none of these 

identified elements is severable from 

each other. 

We are proposing to disapprove the 

submitted Texas Flexible Permits State 

Program as not meeting the 

requirements for a substitute Major NSR 

SIP revision. Our grounds for proposing 

disapproval as a substitute Major NSR 

SIP revision include the following: 

• It is not clearly limited to Minor 

NSR thereby allowing new major 

stationary sources to construct without 

a Major NSR permit; 

• It has no regulatory provisions 

clearly prohibiting the use of this 

Program from circumventing the Major 

NSR SIP requirements thereby allowing 

sources to use a Flexible Permit to avoid 

the requirement to obtain 

preconstruction permit authorizations 

for projects that would otherwise 

require a Major NSR preconstruction 

permit; 

• It does not require that first an 

applicability determination be made 

whether the construction or 

modification is subject to Major NSR 

thereby exempting new major stationary 

sources and major modifications from 

the EPA Major NSR SIP requirements; 

• It does not include a demonstration 

from the TCEQ showing how the use of 

‘‘modification’’ is at least as stringent as 

the definition of ‘‘modification’’ in the 

EPA Major NSR SIP program; 

• It does not include the requirement 

to make Major NSR applicability 

determinations based on actual 

emissions and on emissions increases 

and decreases (netting) that occur 

within a major stationary source; 

• It fails to meet the statutory and 

regulatory requirements for a SIP 

revision; 

• It is not consistent with applicable 

statutory and regulatory requirements as 

interpreted in EPA policy and guidance 

on SIP revisions; and 

• It fails to include, among other 

things, adequate accountability 

provisions, compliance determination 

procedures, replicable implementation 

procedures, sufficient monitoring, 

recordkeeping, and reporting 

requirements so that issued permits 

incorporate emission limitations and 

other requirements of the Texas SIP that 

ensure protection of the national 

ambient air quality standards (NAAQS), 

and noninterference with the Texas SIP 

control strategies and reasonable further 

progress (RFP). 

We are proposing to disapprove the 

submitted Program as not meeting the 

Minor NSR SIP requirements. It is not 

clearly limited to Minor NSR. It has no 

regulatory provisions clearly prohibiting 

the use of this Program from 

circumventing the Major NSR SIP 

requirements. This Program does not 

require that first an applicability 

determination be made whether the 

construction or modification is subject 

to Major NSR. The Program does not 

ensure that a Major NSR permit’s 

requirements are retained. 

In addition to the failures to protect 

Major NSR SIP requirements, EPA 

cannot find that the submitted Program, 

as a Minor NSR SIP program, will 

ensure protection of the NAAQS, and 

noninterference with the Texas SIP 

control strategies and RFP. We are 

proposing to disapprove this Program as 

a Minor NSR SIP revision because it 

does not meet certain provisions of the 

Act and EPA’s Minor NSR SIP 

requirements. Our grounds for 

proposing disapproval as a Minor NSR 

SIP revision include the following: 

• It is not clearly limited to Minor 

NSR thereby allowing new major 

stationary sources to construct without 

a Major NSR permit; 

• It has no regulatory provisions 

clearly prohibiting the use of this 

Program from circumventing the Major 

NSR SIP requirements thereby allowing 

sources to use a Flexible Permit to avoid 

the requirement to obtain 

preconstruction permit authorizations 

for projects that would otherwise 

require a Major NSR preconstruction 

permit; 

• It does not require that first an 

applicability determination be made 

whether the construction or 

modification is subject to Major NSR 

thereby exempting new major stationary 

sources and major modifications from 

the EPA Major NSR SIP requirements; 

• It fails to meet the statutory and 

regulatory requirements for a SIP 

revision; 

• It is not consistent with applicable 

statutory and regulatory requirements as 

interpreted in EPA policy and guidance 

on SIP revisions; 

• It lacks replicable, specific, 

established implementation procedures 

for establishing the emission cap in a 

Minor NSR Flexible Permit; 

• It is not an enforceable Minor NSR 

permitting program; 

• It allows the issuance of Flexible 

Permits that do not incorporate 

emission limitations and other 

requirements of the Texas SIP; and 

• It lacks the necessary more 

specialized monitoring, recordkeeping, 

and reporting (MRR) requirements 

required for this type of Minor NSR 

program, as selected by Texas, to ensure 

accountability and provide a means to 

determine compliance. 

We have evaluated the submitted 

Texas Flexible Permits State Program, 

submitted in a series of packages dating 

back to 1994. Based upon our 

evaluation, EPA has concluded that the 

portions of the submitted SIP revisions 

specifically applicable to the Program 

do not meet the requirements of the Act 

and 40 CFR part 51. All these portions 

of the submittals for the Program are not 

severable and therefore are not 

approvable. As authorized in sections 

110(k)(3) and 301(a) of the Act, where 

portions of the State submittals are 

severable, EPA may approve the 

portions of the submittals that meet the 

requirements of the Act, take no action 

on certain portions of the submittals, 

and disapprove the portions of the 

submittals that do not meet the 

requirements of the Act. When the 

deficient provisions are not severable 

from all of the submitted provisions, 

EPA must propose disapproval of the 

submittals, consistent with sections 

301(a) and 110(k)(3) of the Act. The 

submitted provisions work together to 

form the Texas Flexible Permits State 

Program and are not severable from each 

other. Therefore, EPA is proposing 

disapproval of the submitted Program. 

Under section 179(a) of the CAA, final 

disapproval of a submittal that 

addresses a mandatory requirement of 

the Act starts a sanctions clock and a 

Federal Implementation Plan (FIP) 

clock. The provisions in these 

submittals relating to the Texas Flexible 

Permits State Program were not 

submitted to meet a mandatory 

requirement of the Act. Therefore, if 

EPA takes final action to disapprove this 

submitted Program, no sanctions and 

FIP clocks will be triggered. 

II. What Are the Other Relevant 

Proposed Actions on the Texas 

Permitting SIP Revision Submittals? 

This proposed action should be read 

in conjunction with two other proposed 

actions appearing elsewhere in today’s 

Federal Register, (1) proposed action on 

the Texas NSR SIP, including PSD, 

NNSR for the 1997 8-Hour Ozone 

Standard, NSR Reform, and a Minor 

NSR Standard Permit (NSR SIP), and (2) 

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1 In that proposed action, the submitted definition 

of BACT is not severable from the proposed action 

on the PSD SIP revision submittals. EPA may 

choose to take final action on the definition of 

BACT in the NSR SIP final action rather than in the 

final action on the Qualified Facilities and the 

General Definitions. EPA is obligated to take final 

action on the submitted definitions in the General 

Definitions for those identified as part of the Texas 

Qualified Facilities State Program, the Texas 

Flexible Permits State Program, Public 

Participation, Permit Renewals (there will be a 

proposed action published at a later date), and this 

BACT definition as part of the NSR SIP. 

proposed action on the Texas NSR SIP, 

the Qualified Facilities Program and the 

General Definitions.1 On November 26, 

2008, EPA proposed limited approval/ 

limited disapproval of the Texas 

submittals relating to public 

participation for air permits of new and 

modified facilities (73 FR 72001). EPA 

believes these actions should be read in 

conjunction with each other because the 

permits issued under these State 

programs are the vehicles for regulating 

a significant universe of the air 

emissions from sources in Texas and 

thus directly impact the ability of the 

State to achieve and maintain 

attainment of the NAAQS and to protect 

the health of the communities where 

these sources are located. Our proposal 

is based upon our interpretation of the 

Texas preconstruction permitting 

program which is outlined in each 

notice and accompanying technical 

support document (TSD). Those 

interested in any one of these actions 

are encouraged to review and comment 

on the other proposed actions as well. 

EPA intends to take final action on 

the State’s Public Participation SIP 

revision submittals in November 2009. 

EPA intends to take final action on the 

submitted Texas Qualified Facilities 

State Program by March 31, 2010, the 

submitted Texas Flexible Permits State 

Program by June 30, 2010, and the NSR 

SIP on August 31, 2010. These dates are 

expected to be mandated under a 

Consent Decree (see, Notice of Proposed 

Consent Decree and Proposed 

Settlement Agreement, 74 FR 38015, 

July 30, 2009). 

III. What Has the State Submitted? 

This notice provides a summary of 

our evaluation of Texas’ November 29, 

1994 SIP revision submittal, as revised 

by severable portions in the March 13, 

1996, SIP revision submittal, and 

severable portions of the July 22, 1998 

SIP revision submittal that repealed and 

replaced portions of, as well as revised, 

the 1994 submittal and repealed and 

replaced all of the 1996 submittal; and 

as revised by severable portions in the 

October 25, 1999, September 11, 2000, 

April 12, 2001, September 4, 2002, 

October 4, 2002, and September 25, 

2003, SIP revision submittals. We 

provide our reasoning in general terms 

in this preamble, but provide a more 

detailed analysis in the TSD that has 

been prepared for this proposed 

rulemaking. Because we are proposing 

to disapprove this submitted Program 

based on the inconsistencies and 

deficiencies discussed herein, we have 

not attempted to review and discuss all 

of the issues that would need to be 

addressed for approval of this submitted 

Program as a Major NSR SIP revision. 

On November 29, 1994, Texas 

submitted revisions adding a new 

Subchapter G—Flexible Permits, to 30 

TAC Chapter 116—Control of Air 

Pollution by Permits for New 

Construction or Modification, adding a 

new 30 TAC 116.13, Flexible Permit 

Definitions, to Subchapter A, 

Definitions, and a revision to 

Subchapter B, New Source Review 

Permits, Division 1, Permit Applications 

at 30 TAC 116.110(a), authorizing the 

use of a Flexible Permit for construction 

of any new facility and modification of 

any existing facility. Texas submitted on 

March 13, 1996, a severable revision to 

Subchapter A, Definitions, in 30 TAC 

116.10, General Definitions, which 

included, among other things, a 

definition for ‘‘modification of existing 

facility,’’ at (F) in 30 TAC 116.10 

addressing modifications under Flexible 

Permits. On July 22, 1998, Texas 

submitted severable revisions that 

included the repeal of the contents of 

the 1996 submittal and some of the 

contents of the 1994 submittal. Among 

other things, the 1998 submittal 

included a new 30 TAC 116.13, Flexible 

Permit Definitions, a new 30 TAC 

116.10, General Definitions, 

‘‘modification of existing facility,’’ at 

(9)(F), and a new 30 TAC 116.110 (a). 

In the September 4, 2002, SIP submittal, 

Texas submitted a redesignation of 30 

TAC 116.10(9)(F) to 30 TAC 

116.10(11)(F). Texas submitted revisions 

to Subchapter G—Flexible Permits—in a 

severable portion of the July 22, 1998 

SIP revision submittal, and more 

revisions to Subchapter G in SIP 

revision submittals on October 25, 1999; 

September 11, 2000; April 12, 2001; 

September 4, 2002; October 4, 2002; and 

September 25, 2003. 

Tables 1 and 2 below summarize the 

changes that are in the SIP revision 

submittals. A summary of EPA’s 

evaluation of each section and the basis 

for this proposal is discussed in sections 

V, VI, and VII of this preamble. The TSD 

includes a detailed evaluation of the 

submittals. 

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

Title of SIP submittal Date submitted to EPA 

Date of state 

adoption Regulations affected 

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

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

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

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

Qualified Facilities and Modifications to Existing Facilities.3/13/1996 2/14/1996 Revision of 30 TAC 116.10 to add new definition of ‘‘modification of existing facility’’ at (F). 

NSR Rule Revisions; section 112(g) 

Rule Review for Chapter 116.

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

adopted. 

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

116.715, 116.721, 116.730, and 116.750. 

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

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

116.722, and 116.750. 

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

House Bill 3040: Shipyard Facilities 

and NSR Maintenance Emissions.

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

116.10(11)(F). 

Revisions to Subchapter G, 30 TAC 116.711 and 116.715. 

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

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

Title of SIP submittal Date submitted to EPA 

Date of state 

adoption Regulations affected 

Offset Certification, New Source 

Review Permitting Processes and 

Extensions for Construction.

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

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

Section Title Date 

submitted 

Date adopted 

by state Comments 

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

Subchapter A—Definitions 

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

7/22/1998 6/17/1998 Repealed and Adopted new 30 TAC 116.10(9)(F). 

9/04/2002 8/21/2002 Redesignated 30 TAC 116.10(11(F). 

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

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

Subchapter B—New Source Review Permits 

Division 1—Permit Application 

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

7/22/1998 6/17/1998 Repealed and adopted a new 30 TAC 116.110. 

Included reference to Flexible Permits in new 30 

TAC 116.110(a)(3). 

Subchapter G—Flexible Permits 

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

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

Removed subsection (b) and 

Redesignated existing subsections (c)–(e) to subsections (b)–(d). 

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

9/11/2000 8/09/2000 Revised subsection (b). 

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

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

(5); 

Added new paragraphs (6) and (11): 

Redesignated existing paragraphs (6)–(9) to paragraphs (7)–(10) and existing paragraphs (10)–(11) 

to paragraphs (12)–(13); and 

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

4/12/2001 3/07/2001 Added new paragraph (12); and 

Redesignated existing paragraphs (12)-(13) to paragraphs (13)–(14). 

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

Added new subsection (b); and 

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

Section 116.714 ................ Application Review 

Schedule.

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

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

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

7/22/1998 6/17/1998 Revised subsection (a), and paragraphs (c)(3)–(6), 

and (9)–(10). 

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

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

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

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

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

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

for Addition Controls.

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

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

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

Operational Changes.

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

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2The Texas NSR SIP provides for three types of 

NSR permits for construction of new minor sources 

and for minor modifications of existing major 

stationary sources and minor sources: A case-bycase minor NSR SIP permit (30 TAC 116.110(a)(1)), 

satisfying the conditions for a minor NSR SIP 

standard permit (30 TAC 116.110(a)(2)), and 

satisfying the conditions for a minor NSR SIP 

permit by rule (30 TAC 116.110(a)(4)). There are 

two types of permits available for minor 

modifications to existing permitted major stationary 

sources and minor facilities, a case-by-case minor 

NSR SIP permit amendment (30 TAC 116.110(b)) 

and 30 TAC 116.116(b)) and a minor NSR SIP 

permit by rule (30 TAC 116.116(d)). A case-by-case 

minor NSR SIP permit alteration (30 TAC 

116.116(c)) or a minor NSR SIP permit by rule (30 

TAC 116.116(d)) are allowed for changes among 

which includes a decrease in allowable emissions. 

See SIP rule 30 TAC 116.116(c)(1)(A) –(B) for the 

changes that may be authorized by a minor NSR SIP 

permit amendment/minor NSR SIP permit by rule. 

The SIP requires that any issued permit is subject 

for review every ten years after the date of issuance. 

See 30 TAC 116.311(c). 

3 Grandfathered facilities are facilities that were 

once exempt from most State air permitting 

requirements because the facilities predated the 

1971 Texas Clean Air Act that required 

preconstruction review and operating permits for 

construction of any new source and modification of 

any existing source that may emit air contaminants 

into the atmosphere of the State. 

4 ‘‘Account’’ for NSR purposes is defined at 30 

TAC 101.1(1), second sentence, as ‘‘any 

combination of sources under common ownership 

or control and located on one or more contiguous 

properties, or properties contiguous except for 

intervening roads, railroads, rights-of-way, 

waterways, or similar divisions.’’ This definition is 

approved as part of the Texas SIP (March 30, 2005 

(70 FR 16129)). 

5 ‘‘Facility’’ is defined in the SIP approved 30 

TAC 116.10(6) as ‘‘a discrete or identifiable 

structure, device, item, equipment, or enclosure 

that constitutes or contains a stationary source, 

including appurtenances other than emission 

control equipment.’’ 

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

Section Title Date 

submitted 

Date adopted 

by state Comments 

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

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

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

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

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

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

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

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

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

Added new subsection (b). 

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

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

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

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

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

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

IV. Is the Texas Flexible Permits State 

Program Submittal for a Major or 

Minor NSR SIP Revision? 

A. Description of the Submitted 

Program 

This part of today’s action describes 

the Program submitted by Texas to EPA 

for approval into the State’s SIP. The 

submitted Program adds a new permit 

option under State law for any person 

who plans to construct any new facility 

or to engage in the modification of any 

existing facility, which may emit air 

contaminants into the air. See submitted 

30 TAC 116.110(a)(3). Under the 

program submitted by Texas, any person 

planning the construction of a new 

facility or a modification to an existing 

facility may satisfy the conditions of 30 

TAC Subchapter G—Flexible Permits, 

rather than obtaining a NSR SIP case-bycase permit or satisfying the conditions 

for a minor NSR SIP Standard Permit or 

Permit by Rule.2 See submitted 30 TAC 

116.110(a)(3). The submitted Program is 

one component of Texas’ current 

preconstruction permit program, but the 

Program is not a part of the federally 

approved Texas SIP. 

Under the submitted Program, a 

Flexible Permit allows for flexibility in 

managing operations by staying under 

an overall emission cap or individual 

unit specific emission limitation. 30 

TAC 116.716. Texas adopted the use of 

Flexible Permits for construction of new 

facilities, modifications of existing 

facilities, and grandfathered facilities.3

When Texas adopted its Program in 

1994, the State did not have the 

statutory authority to impose controls 

on or require permits for grandfathered 

facilities. In particular, the State 

expected this new Program to provide a 

mechanism for placing controls on 

grandfathered refinery and 

petrochemical sites. The Program did 

result in grandfathered facilities 

voluntarily imposing emission controls 

and limiting their emissions using a 

Flexible Permit. However, the current 

regulatory structure does not fit neatly 

within the parameters of the Texas 

minor NSR SIP and the Texas major 

NSR SIP or within the Federal minor or 

major NSR SIP requirements. 

The following discussion provides a 

summary of some of the specific 

components of Texas’ Flexible Permits 

State Program. For more information 

about the Program, please see the SIP 

revisions submitted by Texas and the 

TSD for this proposed action, which are 

available in the docket for this action. 

Pursuant to the submitted Program, 

only one Flexible Permit may be issued 

at an account site.4 See submitted 30 

TAC 116.710(a)(1). Therefore, a Flexible 

Permit cannot cover sources at more 

than one account site. See submitted 30 

TAC 116.710(a)(4). A person may 

qualify for a Flexible Permit for 

construction of a new facility 5 at the 

account site. 30 TAC 116.110(a)(3) and 

30 TAC 116.710(a)(1). A person may 

qualify for a Flexible Permit for a 

modification of an existing facility at the 

account site. 30 TAC 116.110(a)(3) and 

116.710(a)(1). 

If a person has a Flexible Permit and 

wishes to make a change, he can obtain 

a minor or major NSR SIP case-by-case 

permit amendment (codified in the SIP 

at 30 TAC 116.116(b)) or qualify for a 

Flexible Permit amendment. See 

submitted 30 TAC 116.710(a)(2). In lieu 

of either of these two options, the holder 

of the Flexible Permit making the 

change may qualify for a minor NSR SIP 

permit by rule, codified in the SIP at 30 

TAC 116.116(d). 

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6Texas adopted a revised NSR State rule on July 

27, 1972, to add the requirement that a proposed 

new facility and proposed modification utilize at 

least best available control technology (BACT), with 

consideration to the technical practicability and 

economical reasonableness of reducing or 

eliminating the emissions from the facility. EPA 

approved the revised 603.16 into the Texas SIP, 

presently codified in the Texas SIP at 30 TAC 

116.111(a)(2)(C). For more information, please see 

the Federal Register published today concerning 

the Texas Qualified Facilities State Program and the 

General Definitions. The Federal definition for PSD 

BACT is part of the Texas SIP as codified in the SIP 

at 30 TAC 116.160(a). (This current SIP rule citation 

was adopted by the State on October 10, 2001, and 

EPA approved this recodified SIP rule citation on 

July 22, 2004 (69 FR 43752).) EPA approved the 

Texas PSD program SIP revision submittals, 

including the State’s incorporation by reference of 

the Federal definition of BACT, in 1992. See 

proposal and final approval of the Texas PSD SIP 

at 54 FR 52823 (December 22, 1989) and 57 FR 

28093 (June 24, 1992). EPA specifically found that 

the SIP BACT requirement (now codified in the 

Texas SIP at 30 TAC 116.111(a)(2)(C)) did not meet 

the Federal PSD BACT definition. To meet the PSD 

SIP Federal requirements, Texas chose to 

incorporate by reference, the Federal PSD BACT 

definition, and submit it for approval by EPA as 

part of the Texas PSD SIP. Upon EPA’s approval of 

the Texas PSD SIP submittals, both EPA and Texas 

interpreted the SIP BACT provision now codified 

in the SIP at 30 TAC 116.111(a)(2)(C) as being a 

minor NSR SIP requirement for minor NSR permits. 

If a person does not have a Flexible 

Permit and wishes to make a change but 

have only the change covered under a 

Flexible Permit, he can obtain a minor 

or major NSR SIP case-by-case permit 

amendment or qualify for a Flexible 

Permit. In lieu of either of these two 

options, he may qualify for a minor NSR 

SIP permit by rule. 

If the holder of a Flexible Permit 

wishes to construct a new facility, he 

may qualify for a Flexible Permit 

amendment. See submitted 30 TAC 

116.710(a)(3). This is analogous to the 

minor and major NSR SIP process of 

using a minor NSR SIP Permit by Rule 

or a minor NSR SIP permit, for 

authorization to construct a new facility 

on the site. See footnote 1 for further 

explanation. 

Under the approved Texas NSR SIP, 

a change to an existing facility is 

defined as one that would cause a 

change in the method of control of 

emissions; a change in the character of 

the emissions; or an increase in the 

emission rate of any air contaminant. 30 

TAC 116.116(b)(1). Such a change is 

required under the SIP to be authorized 

under a minor or major NSR SIP permit 

amendment or a minor NSR SIP permit 

by rule. 30 TAC 116.116(b) and (d). If 

the change is a decrease in allowable 

emissions; or any change from a 

representation in an application, general 

condition, or special condition in a 

permit that does not cause a change in 

the method of control of emissions; a 

change in the character of emissions; or 

an increase in the emission rate of any 

air contaminant (30 TAC 116.116(c)(1)), 

the change must be authorized by a 

minor or major NSR SIP permit 

alteration or a minor NSR SIP permit by 

rule. 30 TAC 116.116(c) and (d). The 

submitted Program at 30 TAC 116.721(a) 

has the same first two definitions for a 

change to an existing facility: one that 

would cause a change in the method of 

control of emissions; a change in the 

character of the emissions. It, however, 

has a different definition for the third 

type of change. Rather than the change 

being ‘‘an increase in the emission rate,’’ 

it is a change that is a ‘‘significant 

increase in emissions.’’ Submitted 30 

TAC 116.718 defines a ‘‘significant 

increase in emissions.’’ First, the 

increase in emissions must come from a 

facility with a Flexible Permit and 

second, there is no significant increase 

if the increase does not exceed either 

the emission cap or individual emission 

limitation. 

The submitted Subchapter G 

establishes an aggregated emission limit, 

based upon the application of minor 

NSR SIP BACT6 at expected maximum 

capacity (or the application of a more 

stringent required control) for each 

covered facility, i.e., an emission cap. 

The cap for a specific criteria pollutant 

includes each covered facility with its 

individually calculated emission rates. 

The total sum of the covered facilities’ 

calculated emission rates is the 

emission cap. In other words, the 

emission cap is a limit on the potential 

to emit (PTE). 

An emission cap established in a 

Flexible Permit enables the holder to 

operate facilities with less technical and 

administrative effort than would be 

required under the minor and major 

NSR SIP Permits, minor NSR SIP 

Standard Permits, and minor NSR SIP 

Permits by Rule, which impose unitspecific mass emission limits. See 

submitted 30 TAC 116.716. Under the 

submitted 30 TAC 116.716(a), Texas 

may establish an emission cap for a 

specific pollutant by calculating the 

total emissions for all of the facilities 

covered by a Flexible Permit, using the 

application of minor NSR SIP BACT at 

expected maximum capacity for each 

covered facility. Nevertheless, where the 

existing control for a facility is more 

stringent than the application of minor 

NSR SIP BACT, e.g., NSPS, NESHAPS, 

control strategy rule, then that level of 

control for that facility is used in the 

calculation methodologies. See 

submitted 30 TAC 116.715(c)(9) and 

(10). Alternatively, Texas will set an 

individual emission limitation in the 

same Flexible Permit for each pollutant 

not covered by an emission cap for the 

covered facilities. See submitted 30 TAC 

116.716(b). In some cases, a single unit 

may be required by a state or federal 

rule to meet an emissions limitation, 

which does not allow flexibility under 

the cap. In these cases, individual 

emission limitations are set. See 

submitted 30 TAC 116.716(b), second 

sentence. Moreover, in the calculation 

methodologies for the cap and the 

individual emission limitations, an 

‘‘Insignificant Emissions Factor’’ (of up 

to nine percent) may be included in the 

summation. See submitted 30 TAC 

116.716(d). 

Under the submitted Program, a 

pollutant’s cap must be readjusted 

downward if one of the facilities under 

the Flexible Permit shuts down for 

longer than 12 months. See submitted 

30 TAC 116.716(c), first sentence. If a 

new facility is brought into the Flexible 

Permit, the cap must be readjusted to 

accommodate its calculated emission 

rates. See submitted 30 TAC 116.716(c), 

second sentence. The cap must be 

readjusted downward for any facility 

covered by a Flexible Permit if that 

facility becomes subject to any new 

State or Federal regulation. See 

submitted 30 TAC 116.716(e), first 

sentence. A readjustment of the cap 

required by any new State or Federal 

regulation must be made either at the 

time the Flexible Permit is amended or 

altered. 30 TAC 116.716(e), second 

sentence. If an amendment to a Flexible 

Permit is not required to meet the new 

regulation, the permittee must submit a 

request for a permit alteration within 

sixty days of making the change, 

describing how compliance with the 

new requirement will be demonstrated. 

See submitted 30 TAC 116.716(e), third 

sentence. 

Under submitted 30 TAC 116.717, a 

Flexible Permit may include an 

implementation schedule for the 

installation of additional controls to 

meet an emissions cap for a pollutant. 

Submitted 30 TAC 116.715(c)(8) 

provides that if a schedule to install 

additional controls is included in the 

Flexible Permit and a facility subject to 

such a schedule is taken out of service, 

the emission cap contained in the 

Flexible Permit will be readjusted 

downward for the period the unit is out 

of service. Unless a special provision in 

the Flexible Permit specifies the method 

of readjustment of the emission cap, the 

facility must obtain a permit 

amendment. 

B. Is the Submitted Program Clearly a 

Minor NSR SIP Revision? 

Our evaluation of Texas’ submitted 

SIP revisions is guided by whether the 

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submitted Flexible Permits State 

Program applies to major NSR or minor 

NSR, or both. In correspondence and 

other materials, Texas has expressed an 

intent that its submitted Flexible 

Permits State Program applies only to 

construction of minor sources, existing 

grandfathered sources, and to minor 

modifications. See e.g., 19 Tex. Reg. 

7336 (September 20, 1994), 19 Tex. Reg 

9366 (November 25, 1994), the Texas 

Clean Air Act (TCAA) Section 

382.003(9), introductory paragraph and 

(A)–(G), January 2001 ‘‘Flexible Permit 

Application Guidance’’ by the Air 

Permits Division of the TCEQ (see in 

particular, NOTE on page 4), Interoffice 

Memorandum dated December 31, 1998, 

from Victoria Hsu, P.E., Division 

Director, NSR Permits, to New Source 

Review (NSR) Permit Engineers, entitled 

‘‘Flexible Permits and the Plantwide 

Applicability Limit (PAL)’’ (see in 

particular the last paragraph in ‘‘Federal 

Enforceability Policy for Flexible 

Permits’’, immediately preceding 

‘‘Plantwide Applicability Limit (PAL),’’ 

and Interoffice Memorandum dated 

March 17, 1999, from Johnny 

Vermillion, P.E., Technical Specialist, 

NSRPD Chemical Section and David 

Howell, P.E., Team Leader, NSRPD Core 

Section to NSRPD Permit Engineers, 

entitled ‘‘Permit Renewals during 

Flexible Permit Reviews’’ (see in 

particular the first sentence in the 

second paragraph). We find, however, 

that Texas State law and the regulatory 

text submitted by the State is 

inconsistent with this expressed intent. 

The Texas statutory definition for 

‘‘modification of existing facility’’ at 

Section 382.003, Health and Safety 

Code, was revised by the legislature in 

1995 to add, among other things, 

subsection (F) addressing modification 

of an existing facility through a Flexible 

Permit. It provides that increases in 

emissions are not modifications if they 

are authorized by a Flexible Permit. 

This statutory definition for 

‘‘modification of existing facility’’ on its 

face, however, does not prohibit the use 

of a Flexible Permit for a major 

modification as defined by the CAA and 

EPA’s major NSR SIP regulations. It has 

never been explicitly revised to prohibit 

major modifications. Furthermore, in 

contrast to the statutory prohibition 

against the use of a Permit by Rule for 

the construction of a major stationary 

source added in 1999, there are no 

statutory prohibitions against the use of 

a Flexible Permit for construction of a 

major stationary source. See TCAA 

section 382.05196. Finally, Texas State 

law does not contain any explicit 

prohibition against using a Flexible 

Permit for major modifications, 

notwithstanding provisions prohibiting 

the use of an Exemption or Permit by 

Rule or a Standard Permit for major 

modifications, as added in 1999. See 

TCAA Section 382.057. There are no 

statutory provisions in the TCAA that 

clearly limit modifications under the 

submitted Program to minor sources 

and/or minor modifications and 

construction of new sources to minor 

sources and/or minor modifications. 

Similarly, the regulatory provisions 

submitted by Texas also do not prohibit 

the use of the submitted Program for 

construction of new major stationary 

sources and major modifications of 

existing major stationary sources and 

minor sources. The submitted rules do 

not limit the use of the submitted 

Program to minor NSR. For example, the 

title for the submitted Subchapter G is 

‘‘Flexible Permits,’’ not ‘‘Minor NSR 

Flexible Permits, and Flexible Permits 

for Grandfathered Facilities.’’ The 

submitted Subchapter G does not 

contain any emissions limitations, 

applicability statement, or regulatory 

provision restricting the construction to 

minor sources and minor modifications 

as do the Texas minor NSR SIP rules for 

Permits by Rule in Chapter 106 and 

Standard Permits in Chapter 116, 

Subchapter F. Moreover, unlike the 

minor NSR SIP rules for Standard 

Permits in 30 TAC 116.610(b) and 

Permits by Rule in 30 TAC 106.4(a)(3) 

and (4), the submitted rules do not 

require that construction of a major 

stationary source or a major 

modification, as defined in the Major 

NSR SIP regulations, must meet the 

Major NSR permitting requirements. 

If Texas truly intends for the 

submitted Flexible Permits State 

Program to apply only to minor NSR, at 

a minimum Texas must amend 

Subchapter G to include additional 

provisions that clearly limit its 

applicability to minor NSR as it did in 

the Texas minor NSR SIP at 30 TAC 

Chapter 106 for Permits by Rule and 30 

TAC Chapter 116 Subchapter F for 

Standard Permits. 

Without a clear statement of the 

applicability of the Program, the 

Program as submitted is confusing to the 

public, regulated sources, government 

entities, or a court, because it can be 

interpreted as an alternative to 

evaluating the new source or 

modification as a new major stationary 

source or major modification under 

Major NSR. The submitted Program fails 

to limit clearly the use of it to only the 

Texas minor NSR SIP requirements. 

Because of the overly broad nature of 

the regulatory language in the State’s 

SIP revision submittal and the lack of 

any Texas statutory prohibitions, we 

propose to find that the State has failed 

to limit the submitted Program only to 

minor NSR. 

Consequently, we are compelled to 

evaluate this submitted Program as 

being a substitute for the Texas Major 

NSR SIP. Accordingly, as discussed 

below in Section V, we evaluated 

whether the submitted Program meets 

the requirements for a Major NSR SIP 

revision, the general requirements for 

regulating construction of any stationary 

sources contained in Section 

110(a)(2)(C) of the CAA, and the 

applicable statutory and regulatory 

requirements for an approvable SIP 

revision. Below is a summary of our 

evaluation of the submitted Program as 

a Substitute Major NSR SIP revision 

submittal. Section VI contains a 

summary of our evaluation of the 

submitted Program as a Minor NSR SIP 

revision submittal. 

V. What Is EPA’s Evaluation of the 

Submitted Texas Flexible Permits State 

Program as a Substitute Major NSR SIP 

Revision? 

A. What Are the Requirements for EPA’s 

Review of a Submitted Major NSR SIP 

Revision? 

Before EPA’s 1980 revised Major NSR 

SIP regulations, 45 FR 52676 (August 7, 

1980), States were required to adopt and 

submit a Major NSR SIP revision where 

the State’s provisions and definitions 

were identical to or individually more 

stringent than the Federal rules. Under 

EPA’s 1980 revised Major NSR SIP 

regulations, States could submit 

provisions in a Major NSR SIP revision 

different from those in EPA’s Major NSR 

rules, as long as the State provision was 

equivalent to a rule identified by EPA as 

appropriate for a ‘‘different but 

equivalent’’ State rule. If a State chose 

to submit definitions that were not 

verbatim to the Federal definitions, the 

State was required to demonstrate any 

different definition has the effect of 

being as least as stringent. (Emphasis 

added.) See 45 FR 52676, at 52687. The 

demonstration requirement was 

expanded to explicitly include not just 

different definitions but also different 

programs in the EPA’s revised Major 

NSR regulations, as promulgated on 

December 31, 2002 (67 FR 80186) and 

reconsidered with minor changes on 

November 7, 2003 (68 FR 63021). 

Therefore, to be approved as meeting 

the 2002 revised Major NSR SIP 

requirements, a State submitting a 

customized Major NSR SIP revision 

must demonstrate why its program and 

definitions are in fact at least as 

stringent as the Major NSR revised base 

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7The Texas SIP does not include the State 

Pollution Control Project Standard Permit. In a 

separate action in today’s Federal Register, EPA is 

proposing action upon this individual Standard 

Permit. Please see the proposal notice concerning 

the Texas NSR SIP submittals for PSD, NNSR for 

the 1997 8-hour ozone NAAQS, NSR Reform, and 

a Standard Permit. Those interested in this other 

action are encouraged to review and comment on 

it as well. 

program. (Emphasis added). See 67 FR 

80186, at 80241. 

Moreover, because there is an existing 

Texas Major NSR SIP, the submitted 

Program must meet the anti-backsliding 

provisions of the Act in section 193 and 

meet the requirements in section 110(l) 

where EPA may not approve a SIP 

revision if it will interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress or any other applicable 

requirement of the Act. Furthermore, 

any submitted SIP revision must meet 

the applicable SIP regulatory 

requirements and the requirements for 

SIP elements in section 110 of the Act, 

and be consistent applicable statutory 

and regulatory requirements as 

interpreted in EPA SIP policy and 

guidance. These can include, among 

other things, enforceability, compliance 

assurance, accountability, test methods, 

a program element’s replicability, and 

whether the submitted rules are vague. 

There are four fundamental principles 

for the relationship between the SIP and 

any implementing instruments, e.g., 

Major NSR permits. These four 

principles as applied to the review of a 

major or minor NSR SIP revision 

include: (1) The baseline emissions from 

a permitted source be quantifiable; (2) 

the NSR program be enforceable by 

specifying clear, unambiguous, and 

measurable requirements, including a 

legal means for ensuring the sources are 

in compliance with the NSR program, 

and providing means to determine 

compliance; (3) the NSR program’s 

measures be replicable by including 

sufficiently specific and objective 

provisions so that two independent 

entities applying the permit program’s 

procedures would obtain the same 

result; and (4) the Major NSR permit 

program be accountable, including 

means to track emissions at sources 

resulting from the issuance of permits 

and permit amendments. See EPA’s 

April 16, 1992, ‘‘General Preamble for 

the Implementation of Title I of the 

Clean Air Act Amendments of 1990’’ (57 

FR 13498) (‘‘General Preamble’’). In 

particular, there is a specific discussion 

illustrating the principles and elements 

of SIPs that apply to sources in 

implementing a SIP’s control strategies 

beginning on page 13567 of the General 

Preamble. 

B. Does the Submitted Program Prohibit 

Circumvention of Major NSR? 

There is no express provision in the 

submitted Subchapter G similar to the 

Texas minor NSR SIP provisions for 

minor NSR SIP Permits by Rule and 

minor NSR SIP Standard Permits that 

prohibit circumvention of the Major 

NSR requirements. See 30 TAC 106.4(b) 

and 30 TAC 116.610(c). Both the SIPcodified Chapter 106, Subchapter A for 

Permits by Rule and the SIP-codified 

Chapter 116, Subchapter F for Standard 

Permits 7 contain clear regulatory 

applicability requirements limiting their 

use to minor NSR, clear regulatory 

requirements prohibiting their use for 

any project that constitutes a new major 

stationary source or major modification 

subject to Major NSR, and clear 

regulatory provisions prohibiting the 

use of these minor NSR permits from 

circumventing Major NSR. There are no 

similar regulatory applicability 

requirements prohibiting the use for 

Major NSR, and no regulatory 

provisions prohibiting circumvention of 

Major NSR in the submitted Chapter 

116, Subchapter G, for Flexible Permits. 

There is no express provision clearly 

requiring that this submitted Program 

cannot be used to circumvent the 

requirements of major NSR. We are 

proposing to find that the State failed to 

demonstrate that the submitted Program 

prevents the circumvention of major 

NSR. Therefore, we are proposing to 

disapprove the Program as not meeting 

the major NSR SIP requirements to 

prevent circumvention of Major NSR. 

C. Does the Submitted Program Meet the 

Major NSR Applicability Determination 

Criteria? 

Because there is no express provision 

in the TCAA and/or in the submitted 

Program clearly limiting this Program to 

minor NSR, and there is no explicit 

provision prohibiting circumvention of 

the Major NSR SIP requirements, we 

must evaluate the submitted Program 

with respect to the criteria for Major 

stationary source NSR applicability 

determinations. This includes the 

absence of a requirement to evaluate if 

a project triggers Major NSR pursuant to 

the applicability criteria of the 

applicable regulations. 

We do not find any provisions in the 

submitted Program that require a Major 

NSR applicability determination for the 

changes prior to construction and 

modification. The submitted Program’s 

rules and definitions are not clear on 

their face that first one must determine 

the threshold question of whether the 

construction or change is a major 

stationary source or a major 

modification subject to Major NSR. The 

construction and modifications that 

would be authorized under the 

submitted Subchapter G can include 

new major stationary sources or major 

modifications. The change that could be 

a major modification or be a major 

stationary source could bypass the 

Major NSR SIP requirements, including 

the application of PSD BACT or NNSR 

LAER control requirements, in the 

absence of an express requirement to 

perform the Major NSR SIP applicability 

review. 

The submitted Program fails to 

require that the applicability of the 

Major NSR requirements be evaluated 

prior to considering whether the 

construction of a new source or making 

a change can be authorized under a 

Flexible Permit. We are proposing to 

find that the State failed to demonstrate 

that the Program requires an evaluation 

of Major source NSR applicability based 

on the currently approved SIP 

provisions or upon the current federal 

rules. Therefore, we are proposing to 

disapprove the Program as not meeting 

the Major NSR SIP requirements that 

require the Major NSR applicability 

requirements be met. 

D. Does the Submitted Program Meet the 

CAA and Major NSR SIP Requirements 

for a Major Modification? 

In evaluating Major NSR SIP revision 

submittals impacting ‘‘major 

modifications,’’ that differ from EPA’s, 

our review is primarily guided by 

section 111(a)(4) of the Act that 

describes when a ‘‘source’’ is to be 

considered modified: ‘‘The term 

‘modification’ means any physical 

change in, or change in the method of 

operation of, a stationary source which 

increases the amount of any air 

pollutant emitted by such source or 

which results in the emission of any air 

pollutant not previously emitted.’’ 

Texas did not submit any demonstration 

showing how its use of the definition 

‘‘modification’’ was at least as stringent 

as the definition of ‘‘modification’’ in 

EPA’s Major NSR SIP rules. 

In conducting our review, we 

particularly were mindful of the United 

States Court of Appeals for the District 

of Columbia Circuit regarding the scope 

and requirements of Section 111(a)(4) 

for determining whether a change is a 

‘‘major modification.’’ See e.g., New 

York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) 

(‘‘New York I’’) (evaluating EPA’s 2002 

revised major NSR rules and 

interpreting Section 111(a)(4)). As 

discussed below, there are a number of 

principles associated with Section 

111(a)(4) that the Program appears to 

violate. Moreover, the State failed to 

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8While the court’s analysis regarding the scope of 

what constitutes a source in these two cases was 

rejected by the Supreme Court in Chevron that 

decision did not call into question the holding that 

once the EPA has defined what constitutes a 

‘‘source’’ (facility for Major Stationary Source) that 

this is the unit of analysis for applicability. See 

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). 

Given the plain language of Section 111, EPA 

agrees that the appropriate unit of analysis for 

determining if there is an emission increase is the 

‘‘source’’ as section 111(a)(4) provides that a 

modification occurs if the project ‘‘increases the 

amount * * * emitted by such source.’’ 

9The Federal regulations define a stationary 

source as, among other things, all of the pollutant 

emitting activities that belong to the same industrial 

grouping. An industrial grouping is defined based 

on the Standard Industrial Classification (SIC code). 

See, e.g. 40 CFR 51.166(b)(5) and (6). If a stationary 

source has the potential to emit or actually emits 

at certain specified levels then the stationary source 

is a ‘‘major stationary source’’ for purposes of major 

NSR applicability. See Id. at 166(b)(1). By not 

limiting an ‘‘account’’ to pollutant-emitting 

activities within the same SIC code, an account can 

include pollutant-emitting activity that includes 

one or more major stationary sources. While under 

certain circumstances it may be appropriate to lump 

units/facilities from differing SIC codes into a single 

stationary source, this is generally based on an 

interdependence of the various units. Texas’s rule 

does not require such interdependence. 

submit a demonstration showing how 

its use of ‘‘modification’’ is at least as 

stringent as the definition of 

‘‘modification’’ in EPA’s Major NSR SIP 

rules. 

1. Does the Submitted Program require 

an evaluation of Emission Increases 

from the Major Stationary Source? 

As noted above, Section 111(a) (4) 

requires an evaluation of whether a 

project has resulted in an increase in 

emissions from ‘‘such source.’’ Under 

this requirement, an evaluation of 

whether a physical change has resulted 

in an emission increase must be 

evaluated based on whether the project 

resulted in an emission increase across 

the major stationary source, not by an 

evaluation of increases outside the 

major stationary source or a subset of 

units at the major stationary source. See 

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

401–403 (D.C. Cir. 1980) (holding that 

Agency appropriately allowed 

consideration of emission increases 

across the stationary source); Asarco v. 

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

(holding that EPA inappropriately 

allowed a determination if a 

modification had occurred based on 

emission decreases from outside of the 

facility).8 We are concerned that the 

submitted Program in certain 

circumstances, may allow an emission 

increase to be avoided by taking into 

account emission decreases outside of 

the major stationary source and, in other 

circumstances, allow an evaluation of 

emissions of a subset of units at a major 

stationary source. 

First, we are concerned that the 

submitted Program violates the 

requirements of the Act and the Major 

NSR SIP rules, because applicability can 

be determined based on decreases 

outside of the major stationary source. 

This submitted Program establishes an 

emissions cap over a group of one or 

more emissions points located at an 

‘‘account’’ site. 30 TAC 101.1(1). In this 

way and as discussed above in B and C, 

the submitted Flexible Permits State 

Program allows facilities to avoid 

triggering Major NSR requirements. The 

Texas SIP defines an ‘‘account’’ to 

include an entire company site, which 

could include more than one plant and 

certainly more than one major stationary 

source. SIP rule 30 TAC 101.1(1), 

second sentence. Accordingly, under a 

Flexible Permit, a single emissions 

limitation in the emission cap could 

apply to multiple major stationary 

sources,9 and if emissions remain below 

the emissions limitations in the 

emission cap, Major NSR 

preconstruction review is not triggered. 

By allowing an emission cap to be 

established for an account, which can 

include multiple major stationary 

sources, the submitted SIP revisions 

may allow a major stationary source to 

net a significant emissions increase 

against a decrease occurring outside the 

major stationary source, from facilities 

on the account’s site that are covered 

under the Flexible Permit. This 

approach is not consistent with the 

Court’s findings in Alabama Power and 

Asarco, and it does not meet the CAA’s 

definition of modification and the Major 

NSR SIP requirements. 

Second, we are concerned that the 

submitted Program may allow an 

emission increase to be determined 

based on an evaluation of a subset of 

facilities within a major stationary 

source. There are no regulatory 

provisions addressing how one meets 

the applicable major NSR netting 

requirements at a site when some of the 

units are under a Flexible Permit and 

others are not. Under the submitted 

Program, not all emission points, units, 

facilities, major stationary sources, 

minor modifications to an existing 

major stationary source, and so forth, at 

a site are required to be included in the 

site’s Flexible Permit. The submitted 

regulations state, ‘‘A person may obtain 

a flexible permit * * * for a facility, a 

group of facilities, or account * * *’’ 

See submitted 30 TAC 116.710(a). 

Although such a requirement is not 

necessarily per se inconsistent with the 

CAA and EPA’s Major NSR SIP 

requirements, we propose to find that 

the submitted Program lacks the 

necessary accountability and 

replicability required for an approvable 

SIP revision under the Act and EPA’s 

interpretations of it, because the 

submitted regulations and the 

supporting record from the State fail to 

explain how physical and operational 

changes that occur under a Flexible 

Permit emission cap, which may cause 

emissions changes outside of the 

emission cap, are evaluated for Major 

NSR applicability. Likewise, the 

submitted regulations and supporting 

record fail to explain how physical or 

operational changes that occur outside 

an emission cap, that cause emissions 

changes within the emission cap, are 

evaluated for Major NSR applicability. 

In essence, neither the submitted 

regulations nor the supporting 

documentation from Texas explain how 

emissions increases are calculated (both 

the significant emissions increase from 

a project, and a significant net emissions 

increase over the contemporaneous 

period) for the entire major stationary 

source if the major stationary source is 

subject to two different permitting 

regulations, the Flexible Permit 

regulations and the Major NSR SIP 

regulations. As a result, the regulated 

community may apply these regulations 

inconsistently and in a way that fails to 

evaluate emissions changes at the entire 

major stationary source correctly as 

required by the Major NSR SIP 

regulations. This approach is not 

consistent with the Court’s finding in 

Alabama Power, and it does not meet 

the CAA’s definition of modification 

and the Major NSR SIP requirements. 

Therefore, we propose to find that the 

State has failed to demonstrate the 

approaches are consistent with the 

Court’s findings in Alabama Power and 

Asarco, meet the Act, and include the 

necessary replicability and 

accountability for approval as a SIP 

revision. Therefore, we are proposing to 

disapprove the submitted Program as 

not meeting the Major NSR SIP 

requirements that require an evaluation 

of emission increases from the major 

stationary source. 

2. Does the Submitted Program require 

the Use of Actual Emissions, rather than 

Allowables? 

Under Section 111(a)(4) of the Act 

since the 1977 CAA Amendments, a 

comparison of existing actual emissions 

before the change and projected actual 

(or potential emissions) after the change 

in question is required. See New York 

I at 38–40. Therefore, to determine 

whether a change at a unit will be 

subject to Major NSR requires an 

evaluation that, after netting, an actual 

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10EPA’s letter of March 12, 2008, on pages 12 to 

13 of the Enclosure provides some examples of, and 

concepts on how to establish replicable 

recordkeeping, reporting, tracking, and monitoring 

requirements up-front in a NSR program without 

requiring every director discretion decision to be 

adopted and submitted to EPA for approval as a 

source-specific SIP revision. 

to projected actual test or an actual to 

potential emissions test (or alternatively 

a PAL based on actual emissions) be 

used. See 40 CFR 51.165(f) and 

51.166(w). EPA lacks the authority to 

approve any submitted Program that 

does not meet this statutory 

requirement. We therefore are proposing 

disapproval because the submitted 

Program would authorize existing 

allowable, rather than actual emissions 

to be used to determine applicability in 

violation of the Act and the Major NSR 

SIP requirements. 

Our concerns arise because the 

submitted Program fails to show how 

the Flexible Permit program procedures, 

which use expected maximum capacity 

as a component in establishing the level 

of control for each covered facility’s 

emission limit, assure that a Flexible 

Permit’s emission cap is set at a level 

that is equivalent to or more stringent 

than one based on existing actual 

emissions. As discussed previously in 

section IV. A, the cap is essentially a 

combined PTE for the emissions units 

covered by the cap. Subchapter G 

establishes an aggregated emission limit, 

based upon the application of minor 

NSR SIP BACT at expected maximum 

capacity (or the application of the 

required control that is more stringent 

than minor NSR SIP BACT; see 

submitted 30 TAC 116.711(3)) for each 

covered facility, i.e., an emission cap. 

This means the cap is set at a level not 

based on actual emissions. Additionally, 

there is nothing in the submitted 

Program that prevents a proposed 

change at a major stationary source with 

a Flexible Permit to use allowable, 

rather than actual emissions, as a 

baseline to calculate the project’s 

proposed emissions increase. Thereby 

the change could circumvent the major 

modification applicability requirements 

under the Major NSR rules, rules that 

are based upon using actual emissions 

to calculate baseline emissions. 

We propose to find that the State’s 

procedures for establishing a Flexible 

Permit emission cap do not meet the 

CAA and EPA’s Major NSR SIP 

requirements that emissions increases 

from facility changes must be measured 

in terms of changes from existing 

baseline actual emissions and, rather 

than source-specific allowable 

emissions. 

E. Does the Submitted Program Meet the 

Major NSR SIP Requirements for 

Enforceability? 

Any SIP revision to be approved must 

have adequate recordkeeping, reporting, 

testing, and monitoring requirements to 

assure there can be compliance with the 

submitted plan and to ensure the plan 

is enforceable, as well as to ensure each 

affected entity can be easily identified 

and there are means to determine its 

compliance. The more intricate a plan, 

the greater the need for detailed 

requirements. See New York I, 413 F.3d 

at 33–36 (remanding EPA’s 

recordkeeping and reporting 

requirements since they did not provide 

adequate assurances that the Major 

Source NSR modification requirements 

were complied with). There is the 

CAA’s requirement in section 

110(a)(2)(A) that a SIP revision 

submittal must include enforceable 

emission limitations and control 

measures. There is further discussion in 

the General Preamble about EPA’s 

interpretation of the Act’s requirements 

for enforceability and that submitted 

rules must ‘‘specify clear, unambiguous, 

and measurable requirements.’’ 57 FR at 

13567. The SIPs must contain means to 

track emission changes at sources and 

provide for corrective action if they do 

not achieve the emissions reductions. 

There must be legal means for ensuring 

compliance with the control measures. 

These principles are consistent with the 

required ability of both EPA and 

citizens to enforce against violations of 

both major and minor NSR SIP 

requirements because absent such 

requirements, compliance cannot be 

determined. 

We are concerned with the adequacy 

of the recordkeeping, reporting, 

tracking, and monitoring requirements 

in the submitted Program.10 This 

submitted Program is an intricate 

program and therefore, for approvability 

as a Major NSR SIP revision, there is a 

greater need for detailed recordkeeping, 

reporting, tracking, and monitoring 

requirements whether to ensure that a 

project triggering the Major NSR SIP 

requirements is covered under Major 

NSR or to ensure that there are adequate 

means for ensuring compliance of each 

affected entity. These are needed 

additionally to ensure that the issuance 

of the Flexible Permits does not cause 

or contribute to a NAAQS violation, 

violate PSD increments or the Texas 

control strategy, or violate any other 

CAA requirement. For example, due to 

the lack of a program requirement for 

records with detailed crosswalks and of 

tracking and reporting requirements, 

one cannot determine which 

grandfathered units on a site are covered 

or not by a Flexible Permit, or which 

pre-existing minor NSR permitted units 

are covered or not by a Flexible Permit, 

much less which permit terms, limits, 

and conditions are covered, are not 

covered, are retained, or not. 

A Texas Flexible Permit may apply to 

hundreds of dissimilar units. These 

covered emissions units can vary in size 

and type of operations as well as having 

widely different regulatory requirements 

and different applicable testing 

requirements. Yet for this submitted 

intricate Program, there are no program 

requirements for the tracking of existing 

SIP permits’ major and minor NSR 

terms, limits, and conditions, and 

whether such requirements are 

incorporated into a Flexible Permit or 

they remain outside the coverage of the 

Flexible Permit. Minor and Major NSR 

SIP permits, as well as minor NSR SIP 

Permits by Rule and Standard Permits, 

can be incorporated into a Flexible 

Permit without any program 

requirement in place that ensures the 

SIP permits’ terms, limits, and 

conditions are included in the Flexible 

Permit. There are no program 

requirements in the submitted intricate 

Program for specific recordkeeping and 

monitoring that ensures a holder of a 

Flexible Permit maintains sufficient 

records and performs sufficient 

monitoring such that each term, 

limitation, and condition in an existing 

SIP permit that is incorporated into the 

Flexible Permit and the rationale for 

removing any such term, limitation, or 

condition from the contents of the 

Flexible Permit is available. 

EPA therefore is proposing to 

disapprove this Program as a Major NSR 

SIP revision because it does not meet 

the Act’s requirements for an 

enforceable program. 

F. Does the Submitted Program meet the 

Major NSR SIP Public Participation 

Requirements? 

On November 26, 2008 (73 FR 72001), 

EPA proposed limited approval and 

limited disapproval of the Chapter 39 

public participation rules, including 30 

TAC 39.403(b)(8)(A) and (B) for Flexible 

Permits. 30 TAC 39.403(b)(8)(A) and (B) 

formed the part of the basis for the 

proposed limited disapproval. See 73 

FR 72008 and 72013. We intend to take 

final action on the Chapter 39 rules 

prior to final action on this submitted 

Program. 

In the November 2008 proposal, we 

also took no action on submitted 30 

TAC 116.740, Public Notice. This 

section is in the submitted Subchapter 

G and relates to the public participation 

requirements for the submitted SIP 

revisions for Flexible Permits. We 

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proposed no action in the November 

2008 proposal on submitted 30 TAC 

116.740 because we were still reviewing 

the submitted Program, including 30 

TAC 116.740. We stated in the 

November 2008 proposal that we would 

address the submitted 30 TAC 116.740 

in a separate action on the submitted 

Texas Flexible Permits State Program. 

Today, we propose to address 30 TAC 

116.740. Because this submitted rule 

relates to the public participation 

requirements of the submitted Program, 

this rule is not severable from the 

Program. Because we are proposing to 

disapprove the Program, we propose 

likewise to disapprove 30 TAC 116.740, 

Public Notice, for the Program. 

G. Does the Submitted Program Meet 

Section 110(l) of the Act for a Major 

NSR SIP Revision? 

Section 110(l) of the Act prohibits 

EPA from approving any revision of a 

SIP if the revision would interfere with 

any applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement of the Act. 

The State did not provide any 

demonstration showing how the 

submitted SIP revision would not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress, or any other 

CAA requirement. 

H. What is EPA’s Summary of whether 

the Submitted Program Meets the 

Requirements for a Substitute Major 

NSR SIP Revision? 

The submitted Program does not 

require that first one must determine 

whether a change is subject to major 

NSR and that actual emissions be used 

as the baseline for determining whether 

a change is subject to Major NSR. It does 

not prevent circumvention of the Major 

NSR SIP requirements. The submitted 

Program allows emission decreases from 

outside a major stationary source to 

count in complying with a cap in a 

Flexible Permit, as well as allowing 

emission decreases from within a subset 

of units within the major stationary 

source. Yet the submitted Program lacks 

any regulatory provisions ensuring that 

netting for Major NSR applicability 

purposes is conducted only within the 

major stationary source and across the 

entire major stationary source. The 

Program is an extremely complex 

permitting program that lacks 

specialized regulatory provisions that 

include monitoring, testing, 

recordkeeping, and reporting 

requirements specifically to ensure that 

compliance can be determined, and that 

triggering of Major NSR can be easily 

identified and applicable Major NSR 

requirements are met. The Program does 

not include any assurances that the 

NAAQS, control strategies, reasonable 

further progress, and the PSD 

increments will not be violated. 

These are requirements of the Act and 

EPA’s Major NSR SIP requirements that 

the submitted Program does not meet. 

Furthermore, there is no information to 

determine whether the Program would 

not interfere with any applicable 

requirement concerning attainment and 

RFP, or any other requirement of the 

Act, thus violating section 110(l) of the 

Act. Consequently, EPA is proposing to 

find that the Program does not meet the 

requirements for a substitute Major NSR 

SIP revision. 

VI. What is EPA’s Evaluation of the 

Submitted Texas Flexible Permits State 

Program as a Minor NSR SIP Revision? 

We evaluated the submitted Program 

using the federal regulations under CAA 

section 110(a)(2)(C), which require each 

State to include a minor NSR program 

in its SIP. EPA regulations require that 

a plan include ‘‘legally enforceable 

procedures that enable’’ the permitting 

agency to determine whether a minor 

source will cause or contribute to 

violations of applicable portions of the 

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

‘‘interference with a national ambient 

air quality standard,’’ 40 CFR 

51.160(a)(2), and to prevent the source 

from doing so. 40 CFR 51.160(b). The 

procedures must ‘‘discuss the basis for 

determining which facilities will be 

subject to review,’’ 40 CFR 51.160(e), 

and ‘‘discuss the air quality data and the 

dispersion or other air quality modeling 

used’’ to assess a source. 40 CFR 

51.160(f). Generally, SIPs must be 

enforceable (see section 110(a) of the 

Act) and must not relax existing SIP 

requirements (see section 110(l) of the 

Act). Additionally, we reviewed and 

compared the Program with any other 

applicable SIP statutory and regulatory 

requirement. 

A. Is the Submitted Program Clearly a 

Minor NSR SIP Revision? 

There are no statutory and/or 

regulatory provisions that clearly 

prohibit the use of the Program for 

major stationary sources and major 

modifications. Nor are there any 

statutory and/or regulatory provisions 

clearly limiting the use of the Program 

to minor sources and/or minor 

modifications. There are no provisions 

that prohibit the use of the Program for 

construction of new major stationary 

sources and major modifications of 

existing major stationary sources and 

minor sources. There are no regulatory 

applicability requirements limiting use 

of the Program to minor NSR and no 

regulatory requirements prohibiting the 

using it for Major NSR, in the submitted 

Chapter 116, Subchapter G—Flexible 

Permits. There is no express provision 

in the submitted Subchapter G requiring 

that this submitted Program cannot be 

used to circumvent the requirements of 

Major NSR. There are no statutory and/ 

or regulatory provisions clearly 

prohibiting circumvention of Major 

NSR. The Program further fails to 

require that the applicability of the 

Major NSR requirements be evaluated 

prior to considering whether the 

construction of a new source or making 

a change can be authorized under a 

minor NSR Flexible Permit. The 

regulatory provisions in the submitted 

Program fail to require that first one 

must determine the threshold question 

of whether the construction or change is 

a major stationary source or a major 

modification subject to Major NSR, 

based upon an actual emissions 

baseline. See section V and the TSD for 

additional discussion and information. 

B. Does the Submitted Program Meet the 

Minor NSR SIP Requirements for 

Establishing the Emission Cap? 

The submitted Program addresses 

how the cap is calculated. It, however, 

does not describe in sufficient detail the 

calculation methodologies and 

underlying technical analyses used to 

determine a cap. There are not specific, 

established, replicable procedures 

providing available means to determine 

independently, and for different 

scenarios, how the State will calculate 

a Flexible Permit’s cap and/or 

individual emissions limitations for a 

company’s site, plants on the site, major 

stationary sources on the site, a facility 

within a major stationary source on the 

site, facilities on the site, a group of 

units on the site, for one pollutant but 

not another, etc. 

While facilities are limited to one 

Flexible Permit per site account, 

applicants can choose which facilities to 

include under a Flexible Permit. To be 

approvable, the submitted Program must 

include legally enforceable procedures 

for ensuring that both the permit 

application and the State’s permitting 

processes (i.e., the State’s review, 

supporting technical information, the 

public notice and comment process, the 

record, and most importantly the 

structuring of each Flexible Permit in 

such a manner as to be clear) will 

clearly inform the public, other 

governmental agencies, or a court, 

which facilities are included under the 

permit and cap, and which are included 

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11Section 116.117(2) of the submitted Program 

provides that emissions will be measured ‘‘as 

determined by the executive director.’’ This broad 

discretion lacks accountability, replicability and 

fails to provide for a full evaluation of the 

enforceability of permits issued under the Program. 

under the permit but subject to 

individual limitations. 

The submitted Program’s legally 

enforceable procedures must ensure 

adequate enforcement of all applicable 

limitations for sources under an 

emission cap and for sources with 

individual emissions limits under a 

Flexible Permit. Since a Flexible Permit 

may contain an overall emission cap for 

all sources per pollutant, combination of 

multiple emission caps that cover 

groups of facilities, and/or individual 

emission limitations for individual 

facilities, the submitted Program also 

must contain enforceable procedures for 

determining what limits each facility is 

subject to, as well as enforcing each 

source’s obligations regarding each limit 

applicable to that source, under the cap, 

multiple caps, and/or an individual 

limitation, for each pollutant in a 

Flexible Permit. Because applicants can 

choose to establish caps or individual 

emission limitations for just certain 

pollutants rather than for all pollutants 

emitted from the source(s) included in 

the Flexible Permit, the submitted 

Program also must contain legally 

enforceable procedures for determining 

both the cap and individual emissions 

limitations for each relevant pollutant 

for each source and address how 

sources or pollutants not included in 

the Flexible Permit will be regulated. 

Finally, applicants may choose to 

combine grandfathered, existing 

permitted, and newer facilities to 

maximize flexibility at the site in a 

Flexible Permit. This requires that the 

submitted Program must contain legally 

enforceable procedures to ensure that 

both the permit application and the 

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

State’s review, supporting technical 

information, the public notice and 

comment process, the record, and most 

importantly the structuring of each 

Flexible Permit in such a manner as to 

be clear) clearly identify each covered 

point of emissions, which existing 

permits and their types (e.g., minor NSR 

SIP permit, minor NSR standard permit) 

and which of their permitted terms, 

limits, conditions and representations in 

the permit application, are moved into 

the Flexible Permit. The legally 

enforceable procedures must also ensure 

it is clear which existing permits and 

their types and terms, limits, conditions 

and representations in the permit 

application, are not being moved into 

the Flexible Permit. 

In sum, the submittal lacks specific, 

established, replicable procedures 

providing available means to determine 

independently how the source or the 

State will calculate an emission cap, 

determine the coverage of a Flexible 

Permit, establish individual emissions 

limitations for each site, a facility on the 

site, a group of units on the site, or for 

one pollutant but not another. It also is 

not clear to EPA what the process is and 

how the emission cap is adjusted for the 

addition of new facilities. See submitted 

30 TAC 116.716(c). Furthermore, the 

submitted regulations include a term, 

‘‘multiple emission caps,’’ with an 

ambiguous meaning. See submitted 30 

TAC 116.715(b). It is not clear whether 

this term means multiple emission caps 

because there is one cap for each 

pollutant, or whether there can be more 

than one cap for one pollutant. 

C. Does the Submitted Program Meet the 

Minor NSR SIP Enforcement 

Requirements? 

Section 110(a)(2)(A)—(C) of the Act 

requires that SIP revision submittals be 

enforceable. The September 23, 1987, 

Memorandum from J. Craig Potter, 

Assistant Administrator for Air and 

Radiation, and Thomas L. Adams Jr., 

Assistant Administrator for Enforcement 

and Compliance Monitoring, entitled 

‘‘Review of State Implementation Plans 

and Revisions for Enforceability and 

Legal Sufficiency’’ provides EPA’s 

guidance for interpreting this provision 

in the Act. See also the General 

Preamble. Submitted rules that are 

clearly worded, clear as to who must 

comply, and explicit in their 

applicability to regulated sources are 

appropriate means for achieving the 

statutory enforcement requirement. 

Specific, objective, and replicable 

criteria are to be set forth for 

determining whether this new type of 

NSR permit will be truly equivalent to 

the other minor NSR SIP permits in 

terms of being consistent with the levels 

specified in the control strategies, 

including air quality impacts, etc. 

Appropriate testing, recordkeeping, 

reporting, and monitoring provisions are 

necessary to establish how compliance 

will be determined and be sufficient to 

ensure that the NAAQS and PSD 

increments are protected. 

Under this Program as selected by 

Texas, there is an option to select which 

new facilities and/or new modifications 

to include under the umbrella of a 

Flexible Permit. Without the 

appropriate specialized MRR 

requirements, there is no way to 

determine for instance, which emission 

points are covered, which modifications 

of existing non-covered emission points 

are covered, etc. Texas also chose to 

allow both a cap and an individual 

emission limitation to apply to selected 

units, or just the cap, or just the 

individual emission limitation. Without 

the appropriate MRR requirements, 

there is no way to determine if a 

covered unit is subject to the cap or an 

individual emission limitation, if a unit 

is subject to both the cap and a 

limitation, or whether a cap or a 

limitation applies at what time. Further, 

there can be existing units on the site 

not covered under the Flexible Permit 

cap that may be modified, and use the 

provisions of the Flexible Permit 

program for the modification. Without 

replicable implementation procedures 

for establishing the emission cap and 

sufficient monitoring, recordkeeping, 

and reporting requirements, EPA cannot 

find that the submitted Program, as a 

minor NSR SIP program, will ensure 

protection of the NAAQS, and 

noninterference with the Texas SIP 

control strategies and RFP. 

EPA proposes to find that the Program 

does not meet the requirements of 

section 110(a)(2)(A)–(C), which require 

that SIP revision submittals be 

enforceable.11 There are no specific upfront methodologies in the submitted 

Program to be able to determine 

compliance. Nor did EPA find the 

testing, recordkeeping, reporting, and 

monitoring provisions necessary to 

establish how compliance will be 

determined and to ensure that the 

NAAQS are protected. For example, the 

Program could allow hundreds of 

unrelated emission sources to be subject 

to one emission cap and/or individual 

emission limitations. Yet the submitted 

Program contains no time period for the 

cap (e.g., hourly, monthly, and/or 

annual limits such as rolling limits). 

Submitted 116.117(7) is an illustration 

of our concerns. It states that initial 

compliance testing with ongoing 

compliance by engineering calculations 

‘‘may be required.’’ This means that 

under the Program, compliance testing 

may not be required at all and provides 

no guidance for when monitoring will 

be required. 

Emission units can vary in size and 

type or operation, as well as having 

widely different regulatory monitoring, 

and compliance requirements. 

Demonstrating compliance with a cap 

covering multiple emission points 

requires more detailed information than 

point-by-point compliance. To 

demonstrate compliance with a unit-byunit emission limit, a source can often 

establish a parameter that if not met 

indicates the unit is out of compliance. 

For example, emissions from an 

incinerator may be shown to be in 

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compliance if the temperature stays 

above a certain level indicating 

thorough combustion. Under a cap 

program, it is necessary to know the 

actual emission rate from each unit so 

that the emission unit can be totaled to 

show compliance with the cap. 

The submitted Program lacks 

provisions explicitly addressing the 

type of monitoring requirements that are 

necessary to ensure that all of the 

movement of emissions between the 

emission points, units, facilities, plants, 

etc., still meet the cap for the pollutant, 

still meet the individual emissions 

limitations, and still meet any other 

applicable state or federal requirement. 

In addition, there are no limits on the 

types of sources that can be included in 

the cap. It is also difficult to quantify 

emissions from some units, such as 

tanks, fugitive emissions from leaking 

valves, or wastewater emissions points 

that can be included in a Flexible 

Permit under this Program. 

Because of the use of the Program to 

permit grandfathered facilities in the 

past and the continued use for new 

construction and modifications, as well 

as allowing a meticulous selection of 

which facilities and changes to include 

in a Flexible Permit, EPA is concerned 

with the enforceability of an emissions 

cap for each pollutant (combined with 

individual emissions limitations or not). 

Each pollutant’s cap and individual 

emissions limitations may apply to a 

very large number of selective emission 

sources, with ongoing construction and 

modifications being selectively. 

Although the submitted Program 

requires the same monitoring, 

recordkeeping, reporting, and testing 

requirements at 30 TAC 116.711(2) and 

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

codified in Subchapter B of Chapter 

116, the underpinnings of the submitted 

Program are so complex that EPA 

believes that even for a minor NSR SIP 

program, there should be more detailed 

MRR requirements to ensure that the 

emission cap and/or individual 

emissions limitations in the issued 

Flexible Permits are enforceable. 

Without specialized testing, 

monitoring, recordkeeping and 

reporting requirements, it is difficult for 

EPA, Texas or the public to determine 

which units are covered by a flexible 

permit, which modifications to noncovered units are covered by a flexible 

permit, whether a covered unit is 

subject to the emission cap or an 

individual emission limitation, whether 

a unit is subject to both the cap and a 

limitation, or whether a cap or a 

limitation applies and at what time. 

Finally, there are not sufficient 

provisions requiring the holder of a 

Flexible Permit to maintain 

recordkeeping sufficient to ensure that 

all terms and conditions of existing 

permits (including representations in 

the applications for such permits) that 

are incorporated into the Flexible 

Permit continue to be met. The 

submitted Program lacks adequate 

program requirements for the tracking of 

existing SIP permits’ major and minor 

NSR terms, limits and conditions, and 

whether such requirements are 

incorporated into a Flexible Permit or 

they remain outside the coverage of the 

Flexible Permit. Minor and Major NSR 

permits, as well as minor NSR SIP 

Permits by Rule and Standard Permits, 

can be incorporated into a Flexible 

Permit without any program 

requirement in place that ensures the 

SIP permits’ terms and conditions are 

included in the Flexible Permit. 

D. Does the Submitted Program Meet the 

Minor NSR SIP Requirements for 

Revision of Existing Major NSR SIP 

Permits? 

We also are proposing to disapprove 

the submitted Program because it would 

allow holders of a Flexible Permit to 

make de facto amendments of existing 

SIP permits, including changes in the 

terms and conditions (such as 

throughput, fuel type, hours of 

operation) of minor and major NSR 

permits, without a preconstruction 

review by Texas. While we have 

recognized that under certain 

circumstances changes to PSD permits 

may be appropriate, such changes are 

generally not allowed without a review 

of the new circumstances by the 

permitting authority. As EPA has 

explained, any time a change to a permit 

limit founded in BACT is being 

considered, a corresponding 

reevaluation (or reopening) of the 

original BACT determination may be 

necessary. See, ‘‘Request for 

Determination on Best Available Control 

Technology (BACT) Issues—Ogden 

Martin Tulsa Municipal Waste 

Incinerator Facility,’’ from Gary 

McCutchen, Chief of OAQPS NSR 

Section (Nov. 19, 1987). 

E. Does the Submitted Program Meet the 

Minor NSR SIP Public Participation 

Requirements? 

On November 26, 2008 (73 FR 72001), 

EPA proposed limited approval and 

limited disapproval of the Chapter 39 

public participation rules, including 30 

TAC 39.403(b)(8)(A) and (B) for Flexible 

Permits. 30 TAC 39.403(b)(8)(A) and (B) 

formed a part of the basis for limited 

disapproval. We intend to take final 

action on the Chapter 39 rules prior to 

final action on this submitted Program. 

We also noted in the November 2008 

proposal that Texas submitted 30 TAC 

116.740—Public Notice. This rule was 

submitted November 29, 1994, as part of 

the Texas Flexible Permits State 

Program under 30 TAC Chapter 116, 

Subchapter G. Revisions were submitted 

July 22, 1998; and October 25, 1999. 

This submitted rule provides that any 

person who applies for a Flexible Permit 

shall comply with the provisions in 

Chapter 39, which relates to Public 

Notice. In the November 2008 proposal, 

we stated that we were reviewing the 

November 29, 1994, and July 22, 1998, 

submittals of 30 TAC 116.740 and 

would address these in a separate 

action. 73 FR 72015. We also indicated 

that we were taking no action on 30 

TAC 116.740 as submitted October 24, 

1999. 74 FR 72006. 

In the November 2008 proposal, we 

stated that we would address 30 TAC 

116.740 in a separate action. Because 

this new rule is not severable from the 

Texas Flexible Permits State Program, 

we are proposing to disapprove the 

submitted 30 TAC 116.740. 

F. Does the Submitted Program Meet 

Section 110(l) of the Act for a Minor 

NSR SIP Revision? 

Section 110(l) of the Act prohibits 

EPA from approving any revision of a 

SIP if the revision would interfere with 

any applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement of the Act. 

The State did not provide any 

demonstration showing how the 

submitted SIP revision would not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress, or any other 

CAA requirement. 

G. What is EPA’s Summary of Whether 

the Submitted Program Meets the 

Requirements for a Minor NSR SIP 

Revision? 

The submitted Program is not clearly 

limited to minor NSR and does not 

prevent circumvention of the Major NSR 

SIP requirements. The submitted 

Program does not require that first one 

must determine whether a change is 

subject to Major NSR and actual 

emissions are used as a baseline for 

determining whether a change is subject 

to Major NSR. It fails to meet the 

enforceability requirements as a 

program or of an affected entity, and it 

cannot assure compliance with the 

program or of the affected entity. It is an 

extremely complex permitting program 

but lacks specialized regulatory 

provisions tailoring monitoring, testing, 

recordkeeping, and reporting 

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48494 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

requirements specifically to ensure that 

compliance can be determined, 

enforcement can be taken, and that 

triggering of minor (and major) NSR is 

easily identified and that the 

preconstruction requirements of the Act 

are met. The Program lacks 

requirements necessary for enforcement 

and assurance of compliance. Moreover, 

it does not ensure that existing and 

future minor NSR SIP permits’ terms 

and conditions are retained. The 

methodologies for establishing the caps 

in the Flexible Permits provide too 

much director discretion and lack 

replicable procedures. Overall, the 

submitted Program fails to include 

sufficient enforceable safeguards to 

ensure that the NAAQS and control 

strategies are protected. Furthermore, 

there is no information to determine 

whether the submitted Program is as 

stringent as the existing Texas minor 

NSR SIP, and whether the revisions 

would not violate the NAAQS, PSD 

increments, the State’s control 

strategies, interfere with reasonable 

further progress, or otherwise meet any 

other requirement of the Act, thus 

violating section 110(l) of the Act. 

Therefore, we are proposing to find that 

the submitted Texas Flexible Permits 

State Program does not meet the 

requirements for a minor NSR SIP 

revision. 

VII. Proposed Action 

EPA is proposing disapproval of the 

Texas Flexible Permits State Program 

submitted in a series of SIP revisions, 

identified in the Tables in section III of 

this preamble. These affected provisions 

are addressed in Texas’ November 29, 

1994, SIP revision submittal, as revised 

by severable portions in the March 13, 

1996, SIP revision submittal, and 

severable portions of the July 22, 1998, 

SIP revision submittal that repealed and 

replaced portions of, as well as revised, 

the 1994 submittal and repealed and 

replaced all of the 1996 submittal; and 

as revised by severable portions in the 

October 25, 1999, September 11, 2000, 

April 12, 2001, September 4, 2002, 

October 4, 2002, and September 25, 

2003, SIP revision submittals. 

EPA is proposing disapproval of the 

submitted Texas Flexible Permits State 

Program, as a substitute Major NSR SIP 

revision, because it does not meet the 

Act and EPA’s regulations and is not 

consistent with applicable statutory and 

regulatory requirements as interpreted 

in EPA guidance and policy. We also are 

proposing disapproval of the submitted 

Texas Flexible Permits State Program as 

a Minor NSR SIP revision because it 

does not meet the Act and EPA’s 

regulations and is not consistent with 

applicable statutory and regulatory 

requirements as interpreted in EPA 

guidance and policy. 

We will accept comments on this 

proposal for the next 60 days. After 

review of public comment, we will take 

final action on the SIP revision 

submittals that are identified herein. 

EPA intends to take final action on 

the State’s Public Participation SIP 

revision submittal in November 2009. 

EPA intends to take final action on the 

submitted Texas Qualified Facilities 

State Program by March 31, 2010, the 

submitted Texas Flexible Permits State 

Program by June 30, 2010, and the NSR 

SIP by August 31, 2010. These dates are 

expected to be mandated under a 

Consent Decree (see, Notice of Proposed 

Consent Decree and Proposed 

Settlement Agreement, 74 FR 38015, 

July 30, 2009). Sources are reminded 

that they remain subject to the 

requirements of the Federally-approved 

Texas SIP and subject to potential 

enforcement for violations of the SIP 

(See EPA’s Revised Guidance on 

Enforcement During Pending SIP 

Revisions, dated March 1, 1991). 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under the Executive 

Order. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

proposed SIP disapproval under section 

110 and subchapter I, part D of the 

Clean Air Act will not in-and-of itself 

create any new information collection 

burdens but simply disapproves certain 

State requirements for inclusion into the 

SIP. Burden is defined at 5 CFR 

1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. For 

purposes of assessing the impacts of 

today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant impact on a 

substantial number of small entities. 

This rule does not impose any 

requirements or create impacts on small 

entities. This proposed SIP disapproval 

under section 110 and subchapter I, part 

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

but simply disapproves certain State 

requirements for inclusion into the SIP. 

Accordingly, it affords no opportunity 

for EPA to fashion for small entities less 

burdensome compliance or reporting 

requirements or timetables or 

exemptions from all or part of the rule. 

The fact that the Clean Air Act 

prescribes that various consequences 

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

will flow from this disapproval does not 

mean that EPA either can or must 

conduct a regulatory flexibility analysis 

for this action. Therefore, this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

We continue to be interested in the 

potential impacts of this proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 ‘‘for State, local, or tribal 

governments or the private sector.’’ EPA 

has determined that the proposed 

disapproval action does not include a 

Federal mandate that may result in 

estimated costs of $100 million or more 

to either State, local, or tribal 

governments in the aggregate, or to the 

private sector. This action proposes to 

disapprove pre-existing requirements 

under State or local law, and imposes 

no new requirements. Accordingly, no 

additional costs to State, local, or tribal 

governments, or to the private sector, 

result from this action. 

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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 48495 

E. Executive Order 13132, Federalism 

Executive Order 13132, entitled 

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

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely disapproves certain State 

requirements for inclusion into the SIP 

and does not alter the relationship or 

the distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, Executive Order 13132 

does not apply to this action. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (59 FR 22951, November 9, 

2000), because the SIP EPA is proposing 

to disapprove would not apply in Indian 

country located in the State, and EPA 

notes that it will not impose substantial 

direct costs on tribal governments or 

preempt tribal law. Thus, Executive 

Order 13175 does not apply to this 

action. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it is not 

an economically significant regulatory 

action based on health or safety risks 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997). This proposed 

SIP disapproval under section 110 and 

subchapter I, part D of the Clean Air Act 

will not in-and-of itself create any new 

regulations but simply disapproves 

certain State requirements for inclusion 

into the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not subject to 

Executive Order 13211 (66 FR 28355, 

May 22, 2001) because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

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

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

The EPA believes that this action is 

not subject to requirements of Section 

12(d) of NTTAA because application of 

those requirements would be 

inconsistent with the Clean Air Act. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

proposed action. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the Clean Air Act. 

Accordingly, this action merely 

proposes to disapprove certain State 

requirements for inclusion into the SIP 

under section 110 and subchapter I, part 

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

requirements. Accordingly, it does not 

provide EPA with the discretionary 

authority to address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: September 8, 2009. 

Lawrence E. Starfield, 

Acting Regional Administrator, Region 6. 

[FR Doc. E9–22808 Filed 9–22–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2009–0188; FRL–8960–6] 

Determination of Attainment of the 

1997 8-Hour Ozone Standard for 

Imperial County, CA 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

determine that the Imperial County, 

California moderate 8-hour ozone 

nonattainment area has attained the 

1997 8-hour National Ambient Air 

Quality Standard (NAAQS) for ozone. 

The State of California has requested 

this determination, which is based upon 

three years of certified ambient air 

monitoring data that show the area has 

monitored attainment of the 8-hour 

ozone NAAQS since the 2006–2008 

monitoring period. If this proposed 

determination is made final, the 

requirements for the State to submit 

certain reasonable further progress 

requirements, an attainment 

demonstration, contingency measures 

and other planning requirements of the 

Clean Air Act related to attainment of 

the 1997 8-hour ozone NAAQS shall be 

suspended for so long as the area 

continues to attain the 8-hour ozone 

NAAQS. 

DATES: Comments must be received on 

or before October 23, 2009. Public 

comments on this action are requested 

and will be considered before taking 

final action. 

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