Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 48467 

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 

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. E9–22805 Filed 9–22–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2006–0133; FRL–8958–7] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Prevention of Significant Deterioration 

(PSD), Nonattainment NSR (NNSR) for 

the 1997 8-Hour Ozone Standard, NSR 

Reform, and a Standard Permit 

AGENCY: Environmental Protection 

Agency. 

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 Major and Minor NSR SIP. We 

are proposing to disapprove the 

submittals because they do not meet the 

2002 revised Major NSR SIP 

requirements. We are proposing to 

disapprove the submittals as not 

meeting the Major Nonattainment NSR 

SIP requirements for implementation of 

the 1997 8-hour ozone national ambient 

air quality standard (NAAQS) and the 1- 

hour ozone NAAQS. Additionally, EPA 

is proposing to disapprove the 

submittals to revise the Texas Major 

PSD NSR SIP. Finally, EPA proposes 

disapproval of the submitted Standard 

Permit (SP) for Pollution Control 

Projects (PCP) because it does not meet 

the requirements for a minor NSR SIP 

revision. 

EPA is taking comments on this 

proposal and intends to take final 

action. EPA is proposing these actions 

under section 110, part C, and part D, 

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48468 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

of the Federal Clean Air Act (the Act or 

CAA). 

DATES: Any comments must arrive by 

November 23, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2006–0133, 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: 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, 

1445 Ross Avenue, Suite 1200, Dallas, 

Texas 75202–2733. Such deliveries are 

accepted only between the hours of 8 

am and 4 pm 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–2006– 

0133. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

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 www.regulations.gov 

or e-mail. The 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 www.regulations.gov your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment 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 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 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 am and 

4:30 pm 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 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’’ means Clean Air 

Act. 

• ‘‘40 CFR’’ means Title 40 of the 

Code of Federal Regulations— 

Protection of the Environment. 

• ‘‘SIP’’ means State Implementation 

Plan as 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. 

• ‘‘TSD’’ means the Technical 

Support Document for this action. 

• ‘‘NAAQS’’ means national ambient 

air quality standards promulgated under 

section 109 of that Act and 40 CFR part 

50. 

• ‘‘PAL’’ means ‘‘plantwide 

applicability limitation.’’ 

• ‘‘PCP’’ means ‘‘pollution control 

project.’’ 

• ‘‘TCEQ’’ means ‘‘Texas Commission 

on Environmental Quality.’’ 

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. Do the Submitted SIP Revisions Meet the 

Major PSD NSR SIP Requirements? 

A. What are the Requirements for EPA’s 

Review of a Submitted Major NSR SIP 

Revision? 

B. Do the Submitted SIP Revisions Meet 

the Act and the PSD SIP requirements? 

V. Do the Submitted SIP Revisions Meet the 

Major Nonattainment NSR SIP 

Requirements for the 1-Hour and the 

1997 8-Hour Ozone NAAQS? 

A. What are the Anti-Backsliding Major 

Nonattainment NSR SIP Requirements 

for the 1-hour Ozone NAAQS? 

B. What are the Major Nonattainment NSR 

SIP Requirements for of the 1997 8-hour 

Ozone NAAQS? 

VI. Do the Submitted SIP Revisions Meet the 

Major NSR SIP Requirements? 

A. Do the SIP Revision Submittals Meet the 

Major NSR SIP Requirements with a 

PALs Provision? 

B. Do the Submitted SIP Revisions Meet 

the Non-PAL Aspects of the Major NSR 

SIP Requirements? 

VII. Does the Submitted PCP Standard Permit 

Meet the Minor NSR SIP Requirements? 

VIII. What is Our Evaluation of Other SIP 

Revision Submittals? 

IX. Proposed Action 

X. Statutory and Executive Order Reviews 

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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 48469 

1 In this action, we are taking no action on certain 

provisions that are either outside the scope of the 

SIP or which revise an earlier submittal of a base 

regulation that is currently undergoing review for 

appropriate action. 

2 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 

Qualified Facilities and the General Definitions 

final actions. 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. 

3 In the Texas SIP and in the June 10, 2005, SIP 

submittal, the title of 30 TAC 116.12 is 

‘‘Nonattainment Review Definitions.’’ In the 

February 1, 2006, SIP submittal, 30 TAC 116.12 was 

renamed ‘‘Nonattainment and Prevention of 

Significant Deterioration Review Definitions.’’ 

I. What Action is EPA Proposing? 

We are proposing to disapprove the 

SIP revisions submitted by Texas on 

June 10, 2005, and February 1, 2006, as 

not meeting the 1997 8-hour ozone 

major nonattainment NSR SIP 

requirements, and as not meeting the 

Act and Major Nonattainment NSR SIP 

requirements for the 1-hour ozone 

NAAQS. We are proposing to 

disapprove the SIP revision submitted 

by Texas on February 1, 2006, as not 

meeting the Major NSR Reform SIP 

requirements for PAL provisions and 

the Major NSR Reform SIP requirements 

without the PAL provisions. We are 

proposing to disapprove the February 1, 

2006, SIP revision submittal as not 

meeting the Act and the Major NSR PSD 

SIP requirements. Finally, we are 

proposing to disapprove the Standard 

Permit (SP) for PCP submitted February 

1, 2006, as not meeting the Minor NSR 

SIP requirements. It is EPA’s position 

that each of these six identified portions 

in the SIP revision submittals, 8-hour 

ozone, 1-hour ozone, PALs, non PALs, 

PSD, and PCP Standard Permit is 

severable from each other. 

We are taking no action on the 

portions of the June 10, 2005, submittal 

concerning 30 TAC 101.1 Definitions, 

section 112(g) of the Act, and 

Emergency Orders. 

We have evaluated the SIP 

submissions for whether they meet the 

Act and 40 CFR Part 51, and are 

consistent with EPA’s interpretation of 

the relevant provisions. Based upon our 

evaluation, EPA has concluded that 

each of the six portions of the SIP 

revision submittals does not meet the 

requirements of the Act and 40 CFR part 

51. Therefore, each portion of the State 

submittals is not approvable. As 

authorized in sections 110(k)(3) and 

301(a) of the Act, where portions of the 

State submittal are severable, EPA may 

approve the portions of the submittal 

that meet the requirements of the Act, 

take no action on certain portions of the 

submittal,1 and disapprove the portions 

of the submittal that do not meet the 

requirements of the Act. When the 

deficient provisions are not severable 

from the all of the submitted provisions, 

EPA must propose disapproval of the 

submittals, consistent with section 

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

the six portions of the State submittals 

is severable from each other. Therefore, 

EPA is proposing to disapprove each of 

the following severable provisions of the 

submittals: (1) The submitted 1997 8- 

hour ozone NAAQS Major 

Nonattainment NSR SIP revision, (2) the 

submitted 1-hour ozone NAAQS Major 

NNSR SIP revision, (3) the submitted 

Major NSR reform SIP revision with 

PAL provisions, (4) the submitted Major 

NSR reform SIP revision with no PAL 

provisions, (5) the submitted Major NSR 

PSD SIP revision, and (6) the submitted 

Minor NSR Standard Permit for PCP SIP 

revision. 

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 were not submitted to meet 

a mandatory requirement of the Act. 

Therefore, if EPA takes final action to 

disapprove any provision of the 

submittals, 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, the Flexible Permits 

Program, and (2) proposed action on the 

Texas NSR SIP, the Qualified Facilities 

Program and the General Definitions.2

Also, 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 protect the health of the 

communities where these sources are 

located. The basis for proposing these 

actions 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’ June 10, 2005, 

and February 1, 2006, 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 the submittals 

based on the inconsistencies discussed 

herein, we have not attempted to review 

and discuss all of the issues that would 

need to be addressed for approval of 

these submittals as Major NSR SIP 

revisions. 

On June 10, 2005, Texas submitted 

revisions to Title 30 of the Texas 

Administrative Code (30 TAC) Chapter 

116—Control of Air Pollution by 

Permits for New Construction or 

Modification, revising 30 TAC 116.12— 

Nonattainment Definitions 3—and 30 

TAC 116.150—New Major Source or 

Major Modification in Ozone 

Nonattainment Areas, to meet the Major 

Nonattainment NSR requirements for 

Phase I of the 1997 8-hour NAAQS for 

ozone as promulgated April 30, 2004 (69 

FR 23951). The June 10, 2005, submittal 

also includes revisions to the definitions 

in 30 TAC 101.1—Definitions. 

On February 1, 2006, Texas submitted 

revisions to 30 TAC Chapter 116— 

Control of Air Pollution by Permits for 

New Construction or Modification, to 

implement the Major NSR Reform SIP 

requirements with the PAL provisions 

and without the PAL provisions. The 

submittal also included revisions for the 

Texas PSD SIP and a new Minor NSR 

Standard Permit for Pollution Control 

Projects. This submittal includes the 

following changes: 

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48470 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

• Revisions to the following sections: 

30 TAC 116.12—Nonattainment and 

Prevention of Significant Deterioration 

Review Definitions, 30 TAC 116.150— 

New Major Source or Major 

Modification in Ozone Nonattainment 

Areas, 30 TAC 116.151—New Major 

Source or Major Modification in 

Nonattainment Areas Other Than 

Ozone, 30 TAC 116.160—Prevention of 

Significant Deterioration Requirements, 

and 30 TAC 116.610(a), (b), and (d) 

—Applicability; 

• Addition of the following new 

sections: 30 TAC 116.121—Actual to 

Projected Actual Test for Emissions 

Increases, 30 TAC 116.180— 

Applicability, 30 TAC 116.182—PlantWide Applicability Limit Application, 

30 TAC 116.184—Application Review 

Schedule, 30 TAC 116.186—General 

and Special Conditions, 30 TAC 

116.188—Plantwide Applicability 

Limit, 30 TAC 116.190—Federal 

Nonattainment and Prevention of 

Significant Deterioration Review, 30 

TAC 116.192—Permit Amendments and 

Alterations, 30 TAC 116.194—Public 

Notice and Comment, 30 TAC 116.196— 

Renewal of Plant-Wide Applicability 

Limit Permit, and 30 TAC 116.198— 

Expiration or Voidance. 

• Removal of 30 TAC 116.617— 

Standard Permit for Pollution Control 

Projects and replacement with new 30 

TAC 116.617—State Pollution Control 

Project Standard Permit. 

The table below summarizes the 

changes that are in the two SIP revisions 

submitted June 10, 2005, and February 

1, 2006. A summary of EPA’s evaluation 

of each section and the basis for this 

proposal is discussed in sections IV, V, 

VI, and VII of this preamble. The TSD 

includes a detailed evaluation of the 

submittals. 

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

Section Title Submittal 

dates Description of change Proposed action 

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

Subchapter A—Definitions 

30 TAC 116.12 ....................... Nonattainment Review Definitions.6/10/2005 Changed several definitions 

to implement Federal phase 

I rule implementing 8-hour 

ozone standard.

Disapproval. 

Nonattainment Review and 

Prevention of Significant 

Deterioration Definitions.

2/1/2006 Renamed section and added 

and revised definitions to 

implement Federal NSR 

Reform regulations.

Disapproval. 

Subchapter B—New Source Review Permits 

Division 1—Permit Application 

30 TAC 116.121 ..................... Actual to Projected Actual 

Test for Emissions Increase.

2/1/2006 New Section ........................... Disapproval. 

Division 5—Nonattainment Review 

30 TAC 116.150 ..................... New Major Source or Major 

Modification in Ozone Nonattainment Area.

6/10/2005 Revised section to implement 

Federal phase I rule implementing 8-hour ozone 

standard.

Disapproval. 

2/1/2006 Revised section to implement 

Federal NSR Reform regulations.

Disapproval. 

30 TAC 116.151 ..................... New Major Source or Major 

Modification in Nonattainment Areas Other Than 

Ozone.

2/1/2006 Revised section to implement 

Federal NSR Reform regulations.

Disapproval. 

Division 6—Prevention of Significant Deterioration Review 

30 TAC 116.160 ..................... Prevention of Significant Deterioration Requirements.2/1/2006 Revised section to implement 

Federal NSR Reform regulations.

Disapproval. 

Subchapter C—Plant-Wide Applicability Limits 

Division 1—Plant-Wide Applicability Limits 

30 TAC 116.180 ..................... Applicability ............................ 2/1/2006 New Section ........................... Disapproval. 

30 TAC 116.182 ..................... Plant-Wide Applicability Limit 

Permit Application.

2/1/2006 New Section ........................... Disapproval. 

30 TAC 116.184 ..................... Application Review Schedule 2/1/2006 New Section ........................... Disapproval. 

30 TAC 116.186 ..................... General and Special Conditions.2/1/2006 New Section ........................... Disapproval. 

30 TAC 116.188 ..................... Plant-Wide Applicability Limit 2/1/2006 New Section ........................... Disapproval. 

30 TAC 116.190 ..................... Federal Nonattainment and 

Prevention of Significant 

Deterioration Review.

2/1/2006 New Section ........................... Disapproval. 

30 TAC 116.192 ..................... Amendments and Alterations 2/1/2006 New Section ........................... Disapproval. 

30 TAC 116.194 ..................... Public Notice and Comment .. 2/1/2006 New Section ........................... Disapproval. 

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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 48471 

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

Section Title Submittal 

dates Description of change Proposed action 

30 TAC 116.196 ..................... Renewal of a Plant-Wide Applicability Limit Permit.2/1/2006 New Section ........................... Disapproval. 

30 TAC 116.198 ..................... Expiration and Voidance ........ 2/1/2006 New Section ........................... Disapproval. 

Subchapter E—Hazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, § 112(g), 40 CFR 

Part 63) a

30 TAC 116.400 ..................... Applicability ............................ 2/1/2006 Recodification from section 

116.180.

No action. 

30 TAC 116.402 ..................... Exclusions .............................. 2/1/2006 Recodification from section 

116.181.

No action. 

30 TAC 116.404 ..................... Application ............................. 2/1/2006 Recodification from section 

116.182.

No action. 

30 TAC 116.406 ..................... Public Notice Requirements .. 2/1/2006 Recodification from section 

116.183.

No action. 

Subchapter F—Standard Permits 

30 TAC 116.610 ..................... Applicability ............................ 2/1/2006 Revised paragraphs (a), 

(a)(1) through (a)(5), (b), 

and (d).b

Disapproval, No action on 

paragraph (d). 

30 TAC 116.617 ..................... State Pollution Control Project 

Standard Permit.

2/1/2006 Replaced former 30 TAC 

116.617—Standard Permit 

for Pollution Control 

Projects.c

Disapproval. 

Subchapter K—Emergency Orders d

30 TAC 116.1200 ................... Applicability ............................ ........................ Recodification from 30 TAC 

116.410.

No action. 

a Recodification of former Subchapter C. These provisions are not SIP-approved. 

b 30 TAC 116.610(d) is not SIP-approved. 

c 30 TAC 116.617 is not SIP-approved. 

d Recodification of former Subchapter E. These provisions are not SIP-approved. 

IV. Do the Submitted SIP Revisions 

Meet the Major NSR PSD SIP 

Requirements? 

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, 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 explicitly expanded to 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 

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) 

which provides that 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 with applicable 

statutory and regulatory requirements. 

These can include, among other things, 

enforceability, compliance assurance, 

replicability of an element in the 

program, accountability, test methods, 

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 

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4The January 1972 Texas NSR rules, as revised 

in July 1972, require a proposed new facility or 

modification to utilize the best available control 

technology, with consideration to the technical 

practicability and economic reasonableness of 

reducing or eliminating the emissions resulting 

from the facility. 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. 

5On March 12, 2008, EPA significantly 

strengthened the 1997 8-hour ozone standard, to a 

level of 0.075 ppm. EPA is developing rules needed 

for implementing the 2008 revised 8-hour ozone 

standard and has received the States’ submittals 

identifying areas with their boundaries they 

identify to be designated nonattainment. EPA is 

reviewing the States’ submitted data. 

the Implementation of Title I of the 

Clean Air Act Amendments of 1990’’ (57 

FR 13498) (General Preamble). A 

discussion illustrating the principles 

and elements of SIPs that apply to 

sources in implementing a SIP’s control 

strategies begins on page 13567 of the 

General Preamble. 

B. Do the Submitted SIP Revisions Meet 

the Act and the PSD SIP requirements? 

Texas submitted a revision to 30 TAC 

116.160(a) and a new section 

116.160(c)(1) and (2) on February 1, 

2006, as a SIP revision to the Texas PSD 

SIP. This SIP revision submittal 

removed from the State rules the 

incorporation by reference of the 

Federal PSD definition of ‘‘best 

available control technology (BACT)’’ as 

defined in 40 CFR 51.166(b)(12) 4. The 

currently approved PSD SIP requires 

that a State include the Federal 

definition of BACT. See 30 TAC 

116.160(a). 

The 2006 submittal also removed 

from the State rules, the PSD SIP 

requirement at 40 CFR 52.21(r)(4) that 

the State previously had incorporated 

by reference. The currently approved 

PSD SIP mandates this requirement. See 

30 TAC 116.160(a). This provision 

specifies that if a project becomes a 

major stationary source or major 

modification solely because of a 

relaxation of an enforceable limitation 

on the source or modification’s capacity 

to emit a pollutant, then the source or 

modification is subject to PSD applies as 

if construction had not yet commenced. 

The State’s action in eliminating that 

requirement means the State’s rules will 

not regulate these types of major 

stationary sources or modifications as 

stringently as the Federal program. 

Section 165 of the Act provides that 

‘‘No major emitting facility * * * may 

be constructed [or modified] in any area 

to which this part applies unless— (1) 

a permit has been issued for such 

proposed facility in accordance with 

this part setting forth emission 

limitations for such facility which 

conform to the requirements of this 

part’’ * * * (4) the proposed facility is 

subject to the best available control 

technology for each pollutant subject to 

regulation under this chapter * * *.’’ 

Id. 7475(a). Accordingly, under the 

plain language of Section 165 a facility 

may not be constructed unless it will 

comply with BACT limits, which 

conform to the requirements of the Act. 

As BACT is a defined term in the Act, 

see CAA 169(3), we interpret this to 

mean that a facility may not be 

constructed unless the permit it has 

been issued conforms to the Act’s 

definition of BACT. 

The removal of these two provisions 

is not approvable as a SIP revision. The 

BACT requirement is a basic tenet of a 

permitting program. Our conclusion that 

the BACT and emission limitation 

requirements are a statutory minimum 

flows from the Act itself. See CAA 

section 165. These two provisions are 

required for a SIP revision to meet the 

PSD SIP requirements. 

Not only is BACT a defined statutory 

and regulatory term, but it also 

constitutes a central requirement of the 

Act. Accordingly, a state’s submission of 

a revision that would remove the 

requirement that all new major 

stationary sources or major 

modifications meet, at a minimum, 

BACT as defined by the Act creates a 

situation where the submitted SIP 

revision would be a relaxation of the 

requirements of the previous SIP. 

Our evaluation considers whether a 

submitted SIP revision that removes a 

statutory requirement can still meet the 

Act. It is EPA’s position that the 

removal of a statutory requirement from 

a State’s program cannot be approved as 

a SIP revision because the removal does 

not meet the requirements of the Act. 

Additionally, as a SIP relaxation, we 

would look to the requirements of 

section 110(l). 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 

applicable requirement of the Act. 

As the mechanism in Texas for 

ensuring that permits contain such a 

requirement, the State PSD SIP must 

both require BACT and apply the 

federal definition of BACT (or one that 

is more stringent) to be approved 

pursuant to part C and Section 110(l) of 

the Act. 

Since Texas’ approach fails to ensure 

that all of the statutory relevant criteria 

contained in the statutory BACT 

definition are contained in the Texas 

SIP revision submittal, and the State 

failed to submit a demonstration 

showing how the relaxation would not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress, or any other 

CAA requirement, we are proposing to 

disapprove this removal pursuant to 

part C and Section 110(l) of the Act, as 

well as failing to meet the Major NSR 

SIP requirements. 

V. Do the Submitted SIP Revisions Meet 

the Major Non-attainment NSR 

Requirements for the 1-Hour and the 

1997 8-Hour Ozone NAAQS? 

A. What are the Anti-Backsliding Major 

Nonattainment NSR SIP Requirements 

for the 1-hour Ozone NAAQS? 

On July 18, 1997, EPA promulgated a 

new NAAQS for ozone based upon 8- 

hour average concentrations. The 8-hour 

averaging period replaced the previous 

1-hour averaging period, and the level of 

NAAQS was changed from 0.12 parts 

per million (ppm) to 0.08 ppm (62 FR 

38865).5 On April 30, 2004 (69 FR 

23951), we published a final rule that 

addressed key elements related to 

implementation of the 1997 8-hour 

ozone NAAQS including, but not 

limited to: revocation of the 1-hour 

NAAQS and how anti-backsliding 

principles will ensure continued 

progress toward attainment of the 1997 

8-hour ozone NAAQS. We codified the 

anti-backsliding provisions governing 

the transition from the revoked 1-hour 

ozone NAAQS to the 1997 8-hour ozone 

NAAQS in 40 CFR 51.905(a). The 1- 

hour ozone major nonattainment NSR 

SIP requirements indicated that certain 

1-hour ozone standard requirements 

were not part of the list of antibacksliding requirements provided in 40 

CFR 51.905(f). 

On December 22, 2006, the DC Circuit 

vacated the Phase 1 Implementation 

Rule in its entirety. South Coast Air 

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6 It is our understanding of State law, that a 

‘‘facility’’ can be an ‘‘emissions unit,’’ i.e., any part 

of a stationary source that emits or may have the 

potential to emit any air contaminant. A ‘‘facility’’ 

also can be a piece of equipment, which is smaller 

than an ‘‘emissions unit.’’ A ‘‘facility’’ can be a 

‘‘major stationary source’’ as defined by Federal 

law. A ‘‘facility’’ under State law can be more than 

one ‘‘major stationary source.’’ It can include every 

emissions point on a company site, without limiting 

these emissions points to only those belonging to 

the same industrial grouping (SIP code). To 

comment on our understanding of the State 

definition of facility, see our proposed action 

regarding Modification of Existing Qualified 

Facilities Program and General Definitions, 

published elsewhere in today’s Federal Register. 

Quality Management District, et al., v. 

EPA, 472 F.3d 882 (DC Cir. 2006), reh’g 

denied 489 F.3d 1245 (2007) (clarifying 

that the vacatur was limited to the 

issues on which the court granted the 

petitions for review). The EPA requested 

rehearing and clarification of the ruling 

and on June 8, 2007, the Court clarified 

that it was vacating the rule only to the 

extent that it had upheld petitioners’ 

challenges. Thus, the provisions in 40 

CFR 51.905(e) that waived obligations 

under the revoked 1-hour standard for 

NSR were vacated. The effect of this 

portion of the court’s ruling is to restore 

major nonattainment NSR applicability 

thresholds and emission offsets 

pursuant to classifications previously in 

effect for areas designated 

nonattainment for the 1-hour ozone 

NAAQS. 

On June 10, 2005 and February 1, 

2006, Texas submitted SIP revisions to 

30 TAC 116.12 and 30 TAC 116.150 

which relate to the transition from the 

major nonattainment NSR requirements 

applicable for the 1-hour ozone NAAQS 

to implementation of the major 

nonattainment NSR requirements 

applicable to the 1997 8-hour ozone 

NAAQS. Texas’ revisions at 30 TAC 

116.12(18) (Footnote 6 under Table I 

under the definition of ‘‘major 

modification’’) and 30 TAC 116.150(d) 

introductory paragraph, effective as 

state law on June 15, 2005, provide that 

for ‘‘the Houston-Galveston-Brazoria, 

Dallas-Fort Worth, and Beaumont-Port 

Arthur eight hour ozone nonattainment 

areas, if the United States 

Environmental Protection Agency 

promulgates rules requiring new source 

review permit applications in these 

areas to be evaluated for nonattainment 

new source review according to the 

area’s one-hour standard classification,’’ 

then ‘‘each application will be evaluated 

according to that area’s one-hour 

standard classification’’ and ‘‘* * * the 

de minimis threshold test (netting) is 

required for all modifications to existing 

major sources of VOC or NOx in that 

area * * *.’’ The footnote 6 and the 

introductory paragraph add a new 

requirement for an affirmative 

regulatory action by the EPA on the 

reinstatement of the 1-hour ozone 

NAAQS major nonattainment NSR 

requirements before the major 

nonattainment NSR requirements under 

the 1-hour standard will be 

implemented in the Texas 1-hour ozone 

nonattainment areas. 

The currently approved Texas major 

nonattainment NSR SIP does not require 

such an affirmative regulatory action by 

the EPA before the 1-hour ozone major 

nonattainment NSR requirements come 

into effect in the Texas 1-hour ozone 

nonattainment areas. Our evaluation of 

a SIP revision generally considers 

whether a revision would be at least as 

stringent as the provision in the existing 

applicable implementation plan that it 

would supersede. If we cannot conclude 

that a SIP revision is at least as stringent 

as the corresponding provision in the 

existing SIP, we may approve the 

revision only if the revision would not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress, or any other 

applicable requirement of the Act. The 

Texas revision would relax the 

requirements of the approved SIP. 

Texas submitted no section 110(l) 

analysis demonstrating that this 

relaxation would not interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement of the Act. Therefore, we 

are proposing to disapprove the 

revisions as not meeting section 110(l) 

of the Act for the Major NNSR SIP 

requirements for the 1-hour ozone 

NAAQS. 

B. What Are the Major Nonattainment 

NSR SIP Requirements for the 1997 8- 

hour Ozone NAAQS? 

The Act and EPA’s NSR SIP rules 

require that an applicability 

determination regarding whether Major 

NSR applies for a pollutant should be 

based upon the attainment or 

nonattainment designation of the area in 

which the source is located on the date 

of issuance of the Major NSR permit. 

See the following: sections 172(c)(5) and 

173 of the Act; 40 CFR 51.165(a)(2)(i); 

and ‘‘New Source Review (NSR) 

Program Transitional Guidance,’’ issued 

March 11, 1991, by John S. Seitz, 

Director, Office of Air Quality Planning 

and Standard. An applicability 

determination for a Major NSR permit 

based upon the date of administrative 

completeness, rather than date of 

issuance, would allow more sources to 

avoid the Major NSR requirements 

where there is a nonattainment 

designation between the date of 

administrative completeness and the 

date of issuance, and thus this 

submitted revision will reduce the 

number of sources subject to Major NSR 

requirements. 

Revised 30 TAC 116.150(a), as 

submitted June 10, 2005 and February 1, 

2006, now reads as follows under state 

law: 

(a) This section applies to all new source 

review authorizations for new construction 

or modification of facilities as follows: 

(1) For all applications for facilities that 

will be located in any area designated as 

nonattainment for ozone under 42 United 

States Code (U.S.C.), §§ 7407 et seq. on the 

effective date of this section, the issuance 

date of the authorization; and 

(2) For all applications for facilities that 

will be located in counties for which 

nonattainment designation for ozone under 

42 U.S.C. 7407 et seq. becomes effective after 

the effective date of this section, the date the 

application is administratively complete.6

The submitted rule raises two 

concerns. First, the revised language in 

30 TAC 116.150(a) is not clear as to 

when and where the applicability date 

will be set by the date the application 

is administratively complete and when 

and where the applicability date will be 

set by the issuance date of the 

authorization. The rule, adopted and 

submitted in 2005, applies the date of 

administrative completeness of a permit 

application, not the date of permit 

issuance, where setting the date for 

determination of NSR applicability after 

June 15, 2004 (the effective date of 

ozone nonattainment designations). The 

submitted 2006 rule adds the date of 

permit issuance. Unfortunately, the 

submitted 2006 rule by introducing a 

bifurcated structure creates vagueness 

rather than clarity. The effective date of 

this new bifurcated structure is 

February 1, 2006. It is unclear whether 

this means under subsection (1) that the 

permit issuance date is used in existing 

nonattainment areas designated 

nonattainment for ozone before and up 

through February 1, 2006. Thus, the 

proposed revision lacks clarity on its 

face and is therefore not enforceable. 

Second, to the extent that the date of 

application completeness is used in 

certain instances to establish the 

applicability date, such use is contrary 

to the Act and EPA’s interpretation 

thereof, as discussed above. 

The State did not provide any 

information, which demonstrates that 

this revision is at least as stringent as 

the requirements of the Act and 

applicable Federal rules. 

Thus, based upon the above and in 

the absence of any explanation by the 

State, EPA is proposing to disapprove 

the SIP revision submittals for not 

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7 ‘‘The submittals do not meet the following 

public participation provisions for PALs: (1) For 

PALs for existing major stationary sources, there is 

no provision that PALs be established, renewed, or 

increased through a procedure that is consistent 

with 40 CFR 51.160 and 51.161, including the 

requirement that the reviewing authority provide 

the public with notice of the proposed approval of 

a PAL permit and at least a 30-day period for 

submittal of public comment, consistent with the 

Federal PAL rules at 40 CFR 51.165(f)(5) and (11) 

and 51.166(w)(5) and (11). (2) For PALs for existing 

major stationary sources, there is no requirement 

that the State address all material comments before 

taking final action on the permit, consistent with 40 

CFR 51.165(f)(5) and 51.166(w)(5). (3) The 

applicability provision in section 39.403 does not 

include PALs, despite the cross-reference to 

Chapter 39 in Section 116.194.’’ 

meeting the Major NNSR SIP 

requirements for the 1997 8-hour ozone 

standard. 

VI. Do the Submitted SIP Revisions 

Meet the Major NSR SIP Requirements? 

A. Do the SIP Revision Submittals Meet 

the Major NSR SIP Requirements With 

a PALs Provision? 

We are proposing to disapprove the 

following non-severable revisions that 

address the revised Major NSR SIP 

requirements with a PALs provision: 30 

TAC Chapter 116 submitted February 1, 

2006: 30 TAC 116.12—Definitions; 30 

TAC 116.180—Applicability; 30 TAC 

116.182—Plant-Wide Applicability 

Limit Permit Application; 30 TAC 

116.184—Application Review Schedule; 

30 TAC 116.186—General and Special 

Conditions; 30 TAC 116.188—PlantWide Applicability Limit; 30 TAC 

116.190—Federal Nonattainment and 

Prevention of Significant Deterioration 

Review; 30 TAC 116.192—Amendments 

and Alterations; 30 TAC 116.194— 

Public Notice and Comment; 30 TAC 

116.196—Renewal of a Plant-Wide 

Applicability Limit Permit; 30 TAC 

116.198—Expiration or Voidance. 

Below is a summary of our evaluation. 

Please see the TSD for additional 

information. 

The submittal lacks a provision which 

limits applicability of a PAL only to an 

existing major stationary source, and 

which precludes applicability of a PAL 

to a new major stationary source, as 

required under 40 CFR 51.165(f)(1)(i) 

and 40 CFR 51.166(w)(1)(i), which 

limits applicability of a PAL to an 

existing major stationary source. In the 

absence of such limitation, this 

submission would allow a PAL to be 

authorized for the construction of a new 

major stationary source. In EPA’s 

November 2002 TSD for the revised 

Major NSR Regulations, we respond on 

pages I–7–27 and 28 that actual PALs 

are available only for existing major 

stationary sources, because actual PALs 

are based on a source’s actual emissions. 

Without at least 2 years of operating 

history, a source has not established 

actual emissions upon which to base an 

actual PAL. However, for individual 

emissions units with less than two years 

of operation, allowable emissions would 

be considered as actual emissions. 

Therefore, an actual PAL can be 

obtained only for an existing major 

stationary source even if not all 

emissions units have at least 2 years of 

emissions data. Moreover, the 

development of an alternative to 

provide new major stationary sources 

with the option of obtaining a PAL 

based on allowable emissions was 

foreclosed by the Court in New York v. 

EPA, 413 F.3d 3 at 38–40 (DC Cir. 2005) 

(‘‘New York I’’) (holding that the Act 

since 1977 requires a comparison of 

existing actual emissions before the 

change and projected actual (or 

potential emissions) after the change in 

question is required). 

The absence of the applicability 

limitation creates a provision less 

stringent than the Act as interpreted by 

the Court and the revised Major NSR 

SIP PAL requirements. Therefore, we 

are proposing to disapprove this 

submittal as not meeting the revised 

Major NSR SIP requirements. 

The submittal has no provisions that 

relate to PAL re-openings, as required 

by 40 CFR 51.165(f)(8)(ii), (ii)(A) 

through (C), and 51.166(w)(8)(ii) and 

(ii)(a). Nor is there a mandate that 

failure to use a monitoring system that 

meets the requirements of this section 

renders the PAL invalid, as required by 

40 CFR 51.165(f)(12)(i)(D) and 

51.166(w)(12)(i)(d). The absence of these 

provisions renders the accountability of 

this Program inadequate and less 

stringent than the Federal requirements 

of Major NSR. Therefore, EPA is 

proposing to disapprove the submittal 

as not meeting the revised Major NSR 

SIP requirements. 

The Texas submittal at 30 TAC 

116.186 provides for an emissions cap 

that may not account for all of the 

emissions of a pollutant at the major 

stationary source. Texas requires the 

owner or operator to submit a list of all 

facilities to be included in the PAL see 

30 TAC 116.182(1), such that not all of 

the facilities at the entire major 

stationary source may be specifically 

required to be included in the PAL. 

However, the Federal rules require the 

owner or operator to submit a list of all 

emissions units at the source see 40 CFR 

51.166(f)(3)(i) and 40 CFR 

51.166(w)(3)(i). The corresponding 

Federal rules provide that a PAL applies 

to all of the emission units at the entire 

major stationary source. Inclusion of all 

the emissions units subject to the 

enforceable PAL limit is an essential 

feature of the Plantwide Applicability 

Limit. The Texas submittal is unclear as 

to whether the PAL would apply to all 

of the emission units at the entire major 

stationary source and therefore appears 

to be less stringent than the Federal 

rules. In the absence of any 

demonstration from the State, EPA is 

proposing to disapprove 30 TAC 

116.186 and 30 TAC 116.182(1) as not 

meeting the revised Major NSR SIP 

requirements. 

Submitted 30 TAC 116.194 requires 

that an applicant for a PAL permit must 

provide for public notice on the draft 

PAL permit in accordance with 30 TAC 

Chapter 39—Public Notice—for all 

initial applications, amendments, and 

renewals or a PAL Permit.7 See 73 FR 

72001 (November 26, 2008) for more 

information on Texas’ public 

participation rules and their 

relationship to PALs. The November 

2008 proposal addressed the public 

participation provisions in 30 TAC 

Chapter 39, but did not specifically 

propose action on 30 TAC 116.194. 

Today, we propose to address 30 TAC 

116.194. Because this section relates to 

the public participation requirements of 

the PAL program, this section is not 

severable from the PAL program. 

Because we are proposing to disapprove 

the PAL program, we propose to 

likewise disapprove 30 TAC 116.194. 

The Federal definition of the 

‘‘baseline actual emissions’’ provides 

that these emissions must be calculated 

in terms of ‘‘the average rate, in tons per 

year at which the unit actually emitted 

the pollutant during any consecutive 24- 

month period.’’ See 40 CFR 

51.165(a)(1)(xxxv)(A), (B), (D) and (E) 

and 51.166(b)(47)(i), (ii), (iv), and (v). 

Emphasis added. The submitted 

definition of the term ‘‘baseline actual 

emissions’’ found at 30 TAC 

116.12(3)(A), (B), (D), and (E) differs 

from the Federal definition by providing 

that the baseline shall be calculated as 

‘‘the rate, in tons per year at which the 

unit actually emitted the pollutant 

during any consecutive 24-month 

period.’’ The submitted definition omits 

reference to the ‘‘average rate.’’ The 

definition differs from the Federal SIP 

definition but the State failed to provide 

a demonstration showing how the 

different definition is at least as 

stringent as the Federal definition. 

Therefore, EPA proposes to disapprove 

the different definition of ‘‘baseline 

actual emissions’’ found at 30 TAC 

116.12(3) as not meeting the revised 

Major NSR SIP requirements. On the 

same grounds for lacking a 

demonstration, EPA proposes to 

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8 ‘‘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.’’ 

9The submitted definition of ‘‘baseline actual 

emissions,’’ is as follows: Until March 1, 2016, 

emissions previously demonstrated as emissions 

events or historically exempted under Chapter 101 

of this title * * * may be included to the extent 

they have been authorized, or are being authorized, 

in a permit action under Chapter 116. 30 TAC 

116.12(3)(E) (emphasis added). 

disapprove 30 TAC 116.182(2) that 

refers to calculations of the baseline 

actual emissions for a PAL, as not 

meeting the revised Major NSR SIP 

requirements. 

The State also failed to include the 

following specific monitoring 

definitions: ‘‘Continuous emissions 

monitoring system (CEMS)’’ as defined 

in 40 CFR 51.165(a)(1)(xxxi) and 

51.166(b)(43); ‘‘Continuous emissions 

rate monitoring system (CERMS)’’ as 

defined in 40 CFR 51.165(a)(1)(xxxiv) 

and 51.166(b)(46); ‘‘Continuous 

parameter monitoring system (CPMS)’’ 

as defined in 40 CFR 51.165(a)(1)(xxxiii) 

and 51.166(b)(45); and ‘‘Predictive 

emissions monitoring system (PEMS)’’ 

as defined in 40 CFR 51.165(a)(1)(xxxii) 

and 51.166(b)(44). All of these 

definitions concerning the monitoring 

systems in the revised Major NSR SIP 

requirements are essential for the 

enforceability of and providing the 

means for determining compliance with 

a PALs program. Therefore, we are 

proposing to disapprove the State’s lack 

of these four monitoring definitions as 

not meeting the revised Major NSR SIP 

requirements. 

Additionally, where, as here, a State 

has made a SIP revision that does not 

contain definitions that are required in 

the revised Major NSR SIP program, 

EPA may approve such a revision only 

if the State specifically demonstrates 

that, despite the absence of the required 

definitions, the submitted revision is 

more stringent, or at least as stringent, 

in all respects as the Federal program. 

See 40 CFR 51.165(a)(1) (non-attainment 

SIP approval criteria); 51.166 (b) (PSD 

SIP definition approval criteria). Texas 

did not provide such a demonstration. 

Therefore, EPA proposes to disapprove 

the lack of these definitions as not 

meeting the revised Major NSR SIP 

requirements. 

None of the provisions and 

definitions in the February 1, 2006, SIP 

revision submittal pertaining to the 

revised Major NSR SIP requirements for 

PALs is severable from each other. 

Therefore, we are proposing to 

disapprove the portion of the February 

1, 2006, SIP revision submittal 

pertaining to the revised Major NSR 

PALs SIP requirements as not meeting 

the Act and the revised Major NSR SIP 

regulations. 

B. Do the Submitted SIP Revisions Meet 

the Non-PAL Aspects of the Major NSR 

SIP Requirements? 

The submitted NNSR non-PAL rules 

do not explicitly limit the definition of 

‘‘facility’’ 8 to an ‘‘emissions unit’’ as do 

the submitted PSD non-PAL rules. It is 

our understanding of State law that a 

‘‘facility’’ can be an ‘‘emissions unit,’’ 

i.e., any part of a stationary source that 

emits or may have the potential to emit 

any air contaminant, as the State 

explicitly provides in the revised PSD 

rule at 30 TAC 116.160(c)(3). A 

‘‘facility’’ also can be a piece of 

equipment, which is smaller than an 

‘‘emissions unit.’’ A ‘‘facility’’ can 

include more than one ‘‘major stationary 

source.’’ It can include every emissions 

point on a company site, without 

limiting these emissions points to only 

those belonging to the same industrial 

grouping (SIP code). In our proposed 

action on the Texas Qualified Facilities 

State Program, EPA specifically solicits 

comment on the definition for ‘‘facility’’ 

under State law. We encourage anyone 

interested in this issue to review and 

comment on the other proposed action 

on the submitted Qualified Facilities 

State Program, as well. 

Regardless, the State clearly thought 

the prudent legal course was to limit 

‘‘facility’’ explicitly to ‘‘emissions unit’’ 

in its PSD SIP non-PALs revision. TCEQ 

did not submit a demonstration showing 

how the lack of this explicit limitation 

in the NNSR SIP non-PALs revision is 

at least as stringent as the revised Major 

NSR SIP requirements. Therefore, EPA 

is proposing to disapprove the 

submitted definition and its use as not 

meeting the revised Major NNSR nonPALs SIP requirements. 

Under the Major NSR SIP 

requirements, for any physical or 

operational change at a major stationary 

source, a source must include emissions 

resulting from startups, shutdowns, and 

malfunctions in its determination of the 

baseline actual emissions (see 40 CFR 

51.165(a)(1)(xxxv)(A)(1) and (B)(1) and 

40 CFR 51.166(b)(47)(i)(a) and (ii)(a)) 

and the projected actual emissions (see 

40 CFR 51.165(a)(1)(xxviii)(B) and 40 

CFR 51.166(b)(40)(ii)(b)). The definition 

of the term ‘‘baseline actual emissions,’’ 

as submitted in 30 TAC 116.12(3)(E), 

does not require the inclusion of 

emissions resulting from startups, 

shutdowns, and malfunctions.9 Our 

understanding of State law is that the 

use of the term ‘‘may’’ ‘‘creates 

discretionary authority or grants 

permission or a power. See Section 

311.016 of the Texas Code Construction 

Act. Similarly, the submitted definition 

of ‘‘projected actual emissions’’ at 30 

TAC 116.12(29) does not require that 

emissions resulting from startups, 

shutdowns, and malfunctions be 

included. The submitted definitions 

differ from the Federal SIP definitions 

and the State has not provided 

information demonstrating that these 

definitions are at least as stringent as the 

Federal SIP definitions. Therefore, 

based upon the lack of a demonstration 

from the State, EPA proposes to 

disapprove the definitions of ‘‘baseline 

actual emissions’’ at 30 TAC 116.12(3) 

and ‘‘projected actual emissions’’ at 30 

TAC 116.12(29) as not meeting the 

revised Major NSR SIP requirements. 

The Federal definition of the 

‘‘baseline actual emissions’’ provides 

that these emissions must be calculated 

in terms of ‘‘the average rate, in tons per 

year at which the unit actually emitted 

the pollutant during any consecutive 24- 

month period.’’ The submitted 

definition of the term ‘‘baseline actual 

emissions’’ found at 30 TAC 116.12 

(3)(A), (B), (D), and (E) differs from the 

Federal definition by providing that the 

baseline shall be calculated as ‘‘the rate, 

in tons per year at which the unit 

actually emitted the pollutant during 

any consecutive 24-month period.’’ 

Texas has not provided any 

demonstration showing how this 

different definition is at least as 

stringent as the Federal SIP definition. 

Therefore, EPA proposes to disapprove 

the submitted definition of ‘‘baseline 

actual emissions’’ found at 30 TAC 

116.12(3) as not meeting the revised 

major NSR SIP requirements. 

None of the provisions and 

definitions in the February 1, 2006, SIP 

revision submittal pertaining to the 

revised Major NSR SIP requirements for 

non-PALs is severable from each other. 

Therefore, we are proposing to 

disapprove the portion of the February 

1, 2006, SIP revision submittal 

pertaining to the revised Major NSR 

non-PALs SIP requirements as not 

meeting the Act and the revised Major 

NSR SIP regulations. 

VII. Does the Submitted PCP Standard 

Permit Meet the Minor NSR SIP 

Requirements? 

EPA approved Texas’ general 

regulations for Standard Permits in 30 

TAC Subchapter F of 30 TAC Chapter 

116 on November 14, 2003 (68 FR 

64548) as meeting the minor NSR SIP 

requirements. The November 14, 2003 

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10Examples of narrowly defined categories of 

emission sources include oil and gas facilities, 

asphalt concrete plants, and concrete batch plants. 

11See Guidance on Enforceability Requirements 

for Limiting Potential to Emit through SIP and 

section 112 rules and General permits, 

Memorandum from Kathie A Stein, Office of 

Enforcement and Compliance Assurance, January 

25, 1995, Options for Limiting the Potential to Emit 

(PTE) of a Stationary Source under Section 112 and 

Title V of the Clean Air Act, Memorandum from 

John S. Seitz, Office of Air Quality Planning and 

Standards (OAQPS), January 25, 1995, Approaches 

to Creating Federally-Enforceable Emissions Limits, 

Memorandum from John S. Seitz, OAQPS, 

November 3, 1993, Potential to Emit (PTE) 

Guidance for Specific Source Categories, 

Memorandum from John S. Seitz, OAQPS and Eric 

Schaeffer, OECA, April 14, 1998, EPA Region 7 

Permit by Rule Guidance for Minor Source 

Preconstruction Permits. See also, rulemakings 

related to general permits: 61 FR 53633, final 

approval of Tennessee SIP Revision, October 15, 

1996; 62 FR 2587, final approval of Florida SIP 

revision, January 17, 1997; 71 FR 5979, final 

approval of Wisconsin SIP revision, February 6, 

2006; 71 FR 14439, proposed conditional approval 

of Missouri SIP revision, March 22, 2006. EPA 

guidance documents set out specific guidelines: (1) 

General permits apply to a specific and narrow 

category of sources, (2) For sources electing 

coverage under general permits where coverage is 

not mandatory, provide notice or reporting to the 

permitting authority, reporting or notice to 

permitting authority, (3) General permits provide 

specific and technically accurate (verifiable) limits 

that restrict potential to emit, (4) General permits 

contain specific compliance requirements, (5) 

Limits in general permits are established based on 

practicably enforceable averaging times, and (6) 

Violations of the permit are considered violations 

of state and federal requirements and may result in 

the source being subject to major source 

requirements. 

12The 2006 submittal also included a revision to 

30 TAC 116.610(d), that is a rule in Subchapter F, 

Standard Permits, to change an internal cross 

reference from Subchapter C to Subchapter E, 

consistent with the re-designation of this 

Subchapter by TCEQ. See section IX for further 

information on this portion of the 2006 submittal. 

action describes how these rules meet 

EPA’s requirements for new minor 

sources and minor modifications. A 

Standard Permit provides a streamlined 

mechanism with all permitting 

requirements for construction and 

operation of certain sources in 

categories that contain numerous 

similar sources. It is not a case-by-case 

minor NSR SIP permit. Therefore, each 

minor NSR SIP Standard Permit must 

contain all terms and conditions on the 

face of it (combined with the SIP general 

requirements) and it cannot be used to 

address site-specific determinations. 

This particular type of minor NSR 

permit is required to be applicable to 

narrowly defined categories of emission 

sources 10 rather than a category of 

emission types. A Standard Permit is a 

minor NSR permit limited to a 

particular narrowly defined source 

category for which the permit is 

designed to cover and cannot be used to 

make site-specific determinations that 

are outside the scope of this type of 

permit.11

EPA did not approve the Standard 

Permit for PCPs (30 TAC 116.617) in the 

November 14, 2003 action as part of the 

Texas minor NSR SIP. See 68 FR 64547. 

On February 1, 2006, Texas submitted a 

repeal of the previously submitted PCP 

Standard Permit and submitted the 

adoption of a new PCP Standard Permit 

at 30 TAC 116.617—State Pollution 

Control Project Standard Permit.12 One 

of the main reasons Texas adopted a 

new PCP Standard Permit was to meet 

the new Federal requirements to 

explicitly limit this PCP Standard 

Permit only to Minor NSR. In State of 

New York, et al. v. EPA, 413 F.3d 3 (DC 

Cir. June 24, 2005), the Court vacated 

the federal pollution control project 

provisions for NNSR and PSD. The new 

PCP Standard Permit explicitly 

prohibits the use of the PCP Standard 

Permit for new major sources and major 

modifications. Still the new PCP 

Standard Permit is a generic permit that 

applies to numerous types of pollution 

control projects, which can be used at 

any source that wants to use a PCP. The 

definition in this Standard Permit for 

what is a PCP is overly broad. For 

example, it does not delineate what type 

of pollution control equipment is 

authorized. 

The PCP Standard Permit, as adopted 

and submitted by Texas to EPA for 

approval into the Texas Minor NSR SIP, 

is not limited in its applicability to a 

single category of industrial sources, but 

to a broad class of pollution control 

techniques at all source categories. An 

individual Standard Permit must be 

limited to a single source category, 

which consists of numerous similar 

sources that can meet standardized 

permit conditions. In addition to EPA’s 

concerns that this submitted PCP 

Standard Permit is not limited in its 

applicability, another major concern is 

that this Standard Permit is designed for 

case-by-case additional authorization, 

source-specific review, and sourcespecific technical determinations. For 

case-by-case additional authorization, 

source-specific review, and source 

specific technical determinations, under 

the minor NSR SIP rules, if these types 

of determinations are necessary, the 

State must use its minor NSR SIP caseby-case permit process under 30 TAC 

116.110(a)(1). 

There are no replicable conditions in 

the PCP Standard Permit that specify 

how the Director’s discretion is to be 

implemented for the individual 

determinations. Of particular concern is 

the provision that allows for the 

exercise of the Executive Director’s 

discretion in making case-specific 

determinations in individual cases in 

lieu of generic enforceable 

requirements. Because EPA approval 

will not be required in each individual 

case, specific replicable criteria must be 

set forth in the Standard Permit 

establishing equivalent emissions rates 

and ambient impact. Similarly, the PCP 

Standard Permit is not the appropriate 

vehicle in the case-by-case establishing 

of recordkeeping, monitoring, and 

recordkeeping requirements because it 

requires the Executive Director to make 

case-by-case determinations and to 

establish case specific terms and 

conditions for the construction or 

modification of each individual PCP 

that are outside the terms and 

conditions in the PCP Standard Permit. 

Because the PCP Standard Permit, in 

30 TAC 116.617, does not meet the SIP 

requirements for Minor NSR, EPA 

proposes to disapprove the PCP 

Standard Permit, as submitted 

February 1, 2006. 

VIII. What Is Our Evaluation of Other 

SIP Revision Submittals? 

We are proposing to take no action 

upon the June 10, 2005 SIP revision 

submittal addressing definitions at 30 

TAC Chapter 101, Subchapter A, section 

101.1, because previous revisions to that 

section are still pending review by EPA. 

We will take appropriate action on the 

submittals concerning 30 TAC 101.1 in 

a separate action. As noted previously, 

these definitions are severable from the 

other portions of the two SIP revision 

submittals. 

Second, Texas originally submitted a 

new Subchapter C—Hazardous Air 

Pollutants: Regulations Governing 

Constructed and Reconstructed Sources 

(FCAA, § 112(g), 40 CFR Part 63) on July 

22, 1998. EPA has not taken action upon 

the 1998 submittal. In the February 1, 

2006, SIP revision submittal, this 

Subchapter C is recodified to 

Subchapter E and sections are 

renumbered. This 2006 submittal also 

includes an amendment to 30 TAC 

116.610(d) to change the cross-reference 

from Subchapter C to Subchapter E. 

These SIP revision submittals apply to 

the review and permitting of 

constructed and reconstructed major 

sources of hazardous air pollutants 

(HAP) under section 112 of the Act and 

40 CFR part 63, subpart B. The process 

for these provisions is carried out 

separately from the SIP activities. SIPs 

cover criteria pollutants and their 

precursors, as regulated by NAAQS. 

Section 112(g) of the Act regulates 

HAPs, this program is not under the 

auspices of a section 110 SIP, and this 

program should not be approved into 

the SIP. These portions of the 1998 and 

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2006 submittals are severable. For these 

reasons we propose to take no action on 

this portion relating to section 112(g) of 

the Act. 

Third, the February 1, 2006, SIP 

revision submittal includes a new 30 

TAC Chapter 116, Subchapter K (as 

recodified from Subchapter E), that 

relates to the issuance of Emergency 

Orders, and is severable from all the 

other portions of the 2006 submittal. 

EPA is currently reviewing the SIP 

revision submittals that relate to 

Emergency Orders, including this 

submittal and will take appropriate 

action on the Emergency Order 

requirements in a separate action, 

according to the Consent Decree 

schedule. 

IX. Proposed Action 

Under section 110(k)(3) of the Act and 

for the reasons stated above, EPA is 

proposing disapproval of revisions to 

the Texas Major NSR SIP that relate to 

implementation of Major NSR in areas 

designated nonattainment for the 1997 

8-hour ozone NAAQS, implementation 

of Major NSR in areas designated 

nonattainment for the 1-hour ozone 

NAAQS, and implementation of Major 

NSR SIP requirements in all of Texas. 

We are proposing to disapprove the SIP 

revision submittals for the Texas Major 

NSR SIP. Finally, we are proposing to 

disapprove the submittals for a Minor 

Standard Permit for PCP. EPA is also 

proposing to take no action on certain 

severable revisions submitted June 10, 

2005, and February 1, 2006. 

Specifically, we are proposing: 

• Disapproval of revisions to 30 TAC 

30 TAC 116.12 and 116.150 as 

submitted June 10, 2005; 

• Disapproval of revisions 30 TAC 

116.12, 116.150, 116.151, 116.160; and 

disapproval of new sections at 30 TAC 

116.121, 116.180, 116.182, 116.184, 

116.186, 116.188, 116.190, 116.192, 

116.194, 116.196, 116.198, and 116.617, 

as submitted February 1, 2006. 

We are also proposing to take no 

action on the provisions identified 

below: 

• The revisions to 30 TAC 101.1— 

Definitions, submitted June 10, 2005; 

• The recodification of the existing 

Subchapter C under 30 TAC Chapter 

116 to a new Subchapter E under 30 

TAC Chapter 116; and 

• The recodification of the existing 

Subchapter E under 30 TAC Chapter 

116 to a new Subchapter K under 30 

TAC Chapter 116. 

We will accept comments on this 

proposal for the next 60 days. After 

review of public comments, we will take 

final action on the SIP revisions 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 Major NSR 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). 

X. 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 and 

of 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. 

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 

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48478 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

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, 

Hydrocarbons, Intergovernmental 

relations, Lead, Nitrogen oxides, 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. E9–22806 Filed 9–22–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2007–0359; FRL–8960–8] 

Approval and Promulgation of 

Implementation Plans, Alabama: Clean 

Air Interstate Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a portion of the State Implementation 

Plan (SIP) revision submitted by the 

State of Alabama, through the Alabama 

Department of Environmental 

Management (ADEM), on March 7, 

2007. This action proposes to approve 

the portion of the March 7, 2007, 

submittal that addresses State reporting 

requirements under the Nitrogen Oxide 

(NOX) SIP Call and the Clean Air 

Interstate Rule (CAIR) found in 40 CFR 

51.122 and 51.125 as amended by the 

CAIR rulemakings. Specifically, in this 

action EPA is proposing to approve 

revisions to Chapter 335–3–1 ‘‘General 

Provisions.’’ In previous rulemakings, 

EPA took action on the other portions of 

the March 7, 2007, SIP submittal, which 

included revisions to Chapters 335–3–5, 

and 335–3–8 (October 1, 2007, 72 FR 

55659) and Chapter 335–3–17 (March 

26, 2009, 74 FR 13118). Although the 

DC Circuit Court found CAIR to be 

flawed, the rule was remanded without 

vacatur and thus remains in place. 

Thus, EPA is continuing to approve 

CAIR provisions into SIPs as 

appropriate. CAIR, as promulgated, 

requires States to reduce emissions of 

sulfur dioxide (SO2) and NOX that 

significantly contribute to, or interfere 

with maintenance of, the national 

ambient air quality standards (NAAQS) 

for fine particulates and/or ozone in any 

downwind state. CAIR establishes 

budgets for SO2 and NOX for States that 

contribute significantly to 

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