48450 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

accommodation. Experience under a similar 

provision of the regulations implementing 

section 504 of the Rehabilitation Act 

indicates that challenges to selection criteria 

are, in fact, most often resolved by reasonable 

accommodation. It is therefore anticipated 

that challenges to selection criteria brought 

under this part will generally be resolved in 

a like manner. 

This provision is applicable to all types of 

selection criteria, including safety 

requirements, vision or hearing requirements, 

walking requirements, lifting requirements, 

and employment tests. See Senate Report at 

37–39; House Labor Report at 70–72; House 

Judiciary Report at 42. As previously noted, 

however, it is not the intent of this part to 

second guess an employer’s business 

judgment with regard to production 

standards. (See section 1630.2(n) Essential 

Functions). Consequently, production 

standards will generally not be subject to a 

challenge under this provision. 

The Uniform Guidelines on Employee 

Selection Procedures (UGESP) 29 CFR part 

1607 do not apply to the Rehabilitation Act 

and are similarly inapplicable to this part. 

Section 1630.10(b)—Qualification Standards 

and Tests Related to Uncorrected Vision 

This provision allows challenges to 

qualification standards based on uncorrected 

vision, even where the person excluded by a 

standard has fully corrected vision with 

ordinary eyeglasses or contact lenses. 

Because the statute does not limit the 

provision on uncorrected vision standards to 

individuals with disabilities, a person does 

not need to be an individual with a disability 

in order to challenge such qualification 

standards. Nevertheless, the Commission 

believes that such individuals will usually be 

covered under the ‘‘regarded as’’ prong of the 

definition of disability. Someone who wears 

eyeglasses or contact lenses to correct vision 

will still have an impairment, and a 

qualification standard that screens them out 

on the basis of the impairment by requiring 

a certain level of uncorrected vision to 

perform a job will amount to an action 

prohibited by the ADA based on an 

impairment. (See § 1630.2(l); Appendix to 

§ 1630.2(l)). 

A covered entity may still defend a 

qualification standard requiring a certain 

level of uncorrected vision by showing that 

it is job-related and consistent with business 

necessity. For example, an applicant or 

employee with uncorrected vision of 20/100 

who wears glasses that fully correct his 

vision may challenge a police department’s 

qualification standard that requires all 

officers to have uncorrected vision of no less 

than 20/40 in one eye and 20/100 in the 

other, and visual acuity of 20/20 in both eyes 

with correction. The department would then 

have to establish that the standard is jobrelated and consistent with business 

necessity. 

* * * * * 

[FR Doc. E9–22840 Filed 9–22–09; 8:45 am] 

BILLING CODE 6570–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0025; FRL–8958– 

8] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Modification of Existing Qualified 

Facilities Program and General 

Definitions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing disapproval 

of revisions to the SIP submitted by the 

State of Texas that relate to the 

Modification of Existing Qualified 

Facilities (the Texas Qualified Facilities 

State Program or the Program). EPA 

proposes disapproval of the Texas 

Qualified Facilities 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. 

EPA also proposes to take action on 

revisions to the SIP submitted by Texas 

for definitions severable from the 

definitions in the Qualified Facilities 

submittals. EPA proposes to take action 

on some of the submitted severable 

definitions (General Definitions). We 

propose to approve three definitions, 

grandfathered facility, maximum 

allowable emission rate table (MAERT), 

and new facility. We propose to 

disapprove the definition for best 

available control technology (BACT) 

and two subparagraphs, A and B, and 

paragraph G under the definition for 

modification of existing facility. We 

propose to make an administrative 

correction to the SIP-approved 

definition of facility, and take no action 

on the addition to the SIP-approved 

definition of federally enforceable 

because it relates to a Federal program 

that is implemented separately from the 

SIP. Third, EPA is proposing to take no 

action on a provision not in the Texas 

SIP that includes, among other things, a 

trading provision containing a crossreference that no longer is in Texas’ 

rules; EPA will act upon all of it in a 

separate notice. 

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: Comments must be received on 

or before November 23, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2005–TX–0025, 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: Mr. 

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 8:00 a.m. and 4:00 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–0025. 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 

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special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: 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), Air 

Branch, Multimedia Planning and 

Permitting Division, 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 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’’ or ‘‘CAA’’ means Federal 

Clean Air Act. 

• ‘‘40 CFR’’ means Title 40 of the 

Code of Federal Regulations—Protection 

of 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. 

• ‘‘Major NSR’’ means any new or 

modified source that is subject to NNSR 

and/or PSD. 

• ‘‘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. 

• ‘‘Program’’ means the SIP revision 

submittals from the TCEQ concerning 

the Texas Qualified Facilities State 

Program. 

• ‘‘NAAQS’’ means any national 

ambient air quality standard established 

under 40 CFR part 50. 

• ‘‘TSD’’ means the Technical 

Support Document for this action. 

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 Qualified Facilities 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 Qualified Facilities 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 Applicability Determination 

Criteria? 

D. Does the Submitted Program Meet the 

CAA and Major NSR SIP Requirements 

for a Major Modification? 

E. Does the Submitted Program Meet 

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

SIP Revision? 

VI. What is EPA’s Evaluation of the 

Submitted Texas Qualified Facilities 

State Program as a Minor NSR SIP 

Revision? 

A. Does the Submitted Program meet the 

Minor NSR SIP Requirements for 

Noninterference with the Major NSR SIP 

Requirements? 

B. Does the Submitted Program meet the 

Request for an Exemption or a Relaxation 

from the Minor NSR SIP Requirements? 

C. What is EPA’s Summary of whether the 

Submitted Program Meets the 

Requirements for a Minor NSR SIP 

Revision? 

VII. What is EPA’s Evaluation of the 

Submitted General Definitions? 

A. Which Submitted General Definitions 

Meet the NSR SIP Requirements? 

B. Which Submitted General Definitions do 

not Meet the NSR SIP Requirements? 

C. What is the Administrative Correction 

Related to the Submitted General 

Definition of ‘‘facility?’’ 

D. Why are we not Taking any Action on 

the Severable Submitted Portion of the 

Definition of Federally Enforceable? 

VIII. Why is EPA Proposing to Take No 

Action on a Severable Submitted 

Provision? 

IX. Proposed Action 

X. Statutory and Executive Order Reviews 

I. What Action is EPA Proposing? 

We are proposing to disapprove the 

Texas Qualified Facilities State 

Program, as 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. This 

includes the following regulations 

under Chapter 116: 30 TAC 116.116 (e), 

30 TAC 116.117, 30 TAC 116.118, and 

the definitions in 30 TAC 116.10 for 

qualified facility, actual emissions, 

allowable emissions, and modification 

of existing facility at (E) for qualified 

facilities, as not meeting the Act and 

EPA’s NSR regulations. It is EPA’s 

position that none of these identified 

elements for the submitted Qualified 

Facilities State Program is severable 

from each other. 

First, we are proposing to disapprove 

the submitted Texas Qualified Facilities 

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 major 

modifications to occur 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 

changes at existing facilities 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 modification is subject to 

Major NSR thereby exempting new 

major stationary sources and major 

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

submitted revision to a definition that is outside the 

scope of the SIP and a submitted revision to a 

regulatory provision that is currently undergoing 

review for appropriate action. 

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 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 

modification is subject to Major NSR. 

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 major 

modifications to occur 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 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 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 is not an enforceable Minor NSR 

permitting program; 

• It lacks safeguards to ensure that the 

changes will not violate a Texas control 

strategy and would not interfere with 

attainment and maintenance of a 

NAAQS; 

• It fails to demonstrate that the 

requested relaxation to the Texas Minor 

NSR SIP will not interfere with any 

applicable requirement concerning 

attainment and RFP, or any other 

applicable requirement of the Act. 

Secondly, in a proposed action 

separate from the above action on the 

submitted Texas Qualified Facilities 

State Program, we are proposing to 

disapprove severable definitions as 

submitted by Texas for ‘‘best available 

control technology (BACT)’’ and 

subparagraphs (A) and (B) addressing 

insignificant increases and 

subparagraph (G) of ‘‘modification of 

existing facility,’’ as not meeting the Act 

and EPA’s NSR regulations. We are 

proposing to approve the severable 

definitions as submitted for 

‘‘grandfathered facility,’’ ‘‘new facility’’ 

and ‘‘maximum allowable emission rate 

table (MAERT).’’ We are proposing to 

take no action on the submitted 

severable new subparagraph relating to 

the SIP definition of ‘‘federally 

enforceable’’ because it is outside the 

scope of the SIP and the submitted 

severable provision in 30 TAC 

116.116(f) concerning trading for which 

we will take action later in a separate 

notice. It is EPA’s position that these 

definitions are separate from those in 

the submitted Texas Qualified Facilities 

State Program; moreover, each is 

severable from each other but for 

subparagraphs (A) and (B) in the 

definition for ‘‘modification of existing 

facility.’’ Subparagraphs (A) and (B) in 

‘‘modification of existing facility’’ are 

not severable from each other. The 

submitted definition for ‘‘best available 

control technology’’ is not severable, 

however, from another action appearing 

in today’s Federal Register. See sections 

IV through VIII for further information. 

We have evaluated the submitted 

Texas Qualified Facilities State 

Program. Based upon our evaluation, we 

have 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. 

We have evaluated other (but not all) 

additional definitions in the submitted 

General Definitions that are not part of 

the submitted Texas Qualified Facilities 

State Program. Based upon our 

evaluation, we have concluded that 

some of the evaluated definitions do not 

meet the Federal requirements and 

therefore, are not approvable whereas 

other evaluated definitions meet the 

Federal requirements and are 

approvable. Each definition that we 

evaluated in the submitted General 

Definitions (that is not identified above 

as part of the Program) is severable from 

each other but for the subparagraphs (A) 

and (B) identified above. 

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,1 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 Qualified Facilities State 

Program and are not severable from each 

other. Therefore, EPA is proposing 

disapproval of the submitted Program. 

The submitted provisions for the 

General Definitions that EPA evaluated 

do not work together and are severable 

from each other. Therefore, EPA is 

proposing to disapprove the submitted 

definition for BACT and subparagraphs 

(A) and (B) (that are not severable from 

each other), and subparagraph (G) in the 

definition for modification of existing 

facility. The submitted definition for 

BACT is not severable from another 

action proposed in today’s Federal 

Register. See section II and footnote 2 

for additional information. 

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 

Qualified Facilities State Program and 

the General Definitions were not 

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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 final action on the NSR SIP rather than 

on the Qualified Facilities or the General 

Definitions final action. 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 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. 

submitted to meet a mandatory 

requirement of the Act. Therefore, if 

EPA takes final action to disapprove the 

submitted Texas Qualified Facilities 

State Program or to disapprove either 

the submitted definition for BACT or 

subparagraphs (A) and (B) or 

subparagraph (G) in the submitted 

definition of modification of existing 

facility in the General Definitions, 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); 2 and 

(2) proposed action on the Texas NSR 

SIP, Flexible Permits. 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). 

After review of public comment, we 

may take action to finalize the 

approvable portions of the submittals 

and the disapprovable portions of the 

submittals in separate actions; wherever 

severable, we may take final action on 

some portions in a separate action. 

III. What Has the State Submitted? 

This notice provides a summary of 

our evaluation of Texas’ March 13, 

1996, SIP revision submittal, as replaced 

by severable portions in the July 22, 

1998 SIP revision submittal; and as 

revised by severable portions in the 

September 11, 2000; July 31, 2002, and 

September 4, 2002, 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. 

A. Qualified Facilities State Program 

Submittals 

On March 13, 1996, Texas submitted 

revisions affecting 30 TAC Chapter 

116—Control of Air Pollution by 

Permits for New Construction or 

Modification. These revisions include 

adding a new (e) to 30 TAC 116.116— 

Changes to Facilities, concerning 

Qualified Facilities, a new 30 TAC 

116.117—Documentation and 

Notification of Changes at Qualified 

Facilities, a new 116.118—Pre-Change 

Qualification, a new definition relating 

to modifications of existing Qualified 

Facilities in 30 TAC 116.10, and new 

definitions in 30 TAC 116.10 for 

‘‘qualified facility,’’ ‘‘actual emissions,’’ 

and ‘‘allowable emissions.’’ On July 22, 

1998, Texas submitted severable 

revisions that included the repeal of the 

contents of the 1996 submittal. Among 

other things, the 1998 submittal 

included a new 30 TAC 116.10, General 

Definitions, ‘‘actual emissions’’ at (1), 

‘‘allowable emissions’’ at (2), 

‘‘modification of existing facility’’ at 

(9)(F), and ‘‘qualified facility’’ at (16), a 

new 30 TAC 116.116(e), a new 30 TAC 

116.117, and a new 30 TAC 116.118. On 

September 11, 2000, Texas submitted a 

revision in 30 TAC 116.10 to the 

definition of ‘‘allowable emissions’’ and 

a revision to subparagraph (e)(5)(B) of 

30 TAC 116.116. On September 4, 2002, 

TCEQ submitted a revision to 30 TAC 

116.10 that included the renumbering of 

the definitions. 

General Definitions Submittals 

On March 13, 1996, Texas submitted 

revisions to 30 TAC 116.10—General 

Definitions. This submittal included, 

among other definitions, new state 

regulatory definitions for ‘‘BACT,’’ 

‘‘facility,’’ ‘‘grandfathered facility,’’ 

‘‘maximum allowable emission rate 

table (MAERT),’’ ‘‘modification of 

existing facility’’ at subparagraphs (A), 

(B), and (G), and ‘‘new facility.’’ On July 

22, 1998, Texas submitted severable 

revisions that included, among other 

things, repeal of the 1996 submitted 

definitions. Texas adopted a new 30 

TAC 116.10—General Definitions, that 

included among other definitions, new 

definitions for ‘‘BACT,’’ ‘‘facility,’’ 

‘‘grandfathered facility,’’ ‘‘maximum 

allowable emission rate table 

(MAERT),’’ ‘‘modification of existing 

facility,’’ and ‘‘new facility.’’ On 

September 11, 2000, Texas submitted a 

new definition for ‘‘federally 

enforceable.’’ On July 31, 2002, Texas 

submitted a revision to the definition of 

‘‘facility.’’ On September 4, 2002, Texas 

submitted a revision to add two new 

definitions in 30 TAC 116.10 and 

renumber the other definitions to 

accommodate the new definitions. 

On September 18, 2002 (67 FR 58697), 

EPA approved the definition of 

‘‘federally enforceable,’’ introductory 

paragraph and (A) through (E), as 

submitted July 22, 1998. On September 

6, 2006 (71 FR 52698), EPA approved 

the definition ‘‘facility’’ as submitted 

July 22 1998. On August 28, 2007 (72 FR 

49198), EPA approved the two new 

definitions submitted on September 4, 

2002, and the renumbering of existing 

SIP approved definitions. EPA’s August 

28, 2007, action also included a 

typographical error that inadvertently 

removed the definition of ‘‘facility’’ that 

was previously approved September 6, 

2006, as part of the Texas SIP. 

Summary of the Submittals Addressed 

in This Proposed Action 

The table below summarizes 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 

IV through VIII of this preamble. The 

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48454 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

TSD includes a detailed evaluation of 

the submittals. 

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

Section Title Submittal 

dates Description of change Proposed action 

30 TAC 116.10 General Definitions 

30 TAC 116.10(1) ...... Definition of ‘‘actual emissions’’ 03/13/1996 Added new definition ................. Disapproval. 

07/22/1998 Repealed and a new definition 

submitted as paragraph (1). 

30 TAC 116.10(2) ...... Definition of ‘‘allowable emissions’’.03/13/1996 Added new definition ................. Disapproval. 

07/22/1998 Repealed and a new definition 

submitted as paragraph (2). 

09/11/2000 Revised paragraphs (2)(A) 

through (D). 

30 TAC 116.10(3) ...... Definition of ‘‘BACT’’ .................. 03/13/1996 Added new definition ................. Disapproval. 

07/22/1998 Repealed and a new definition 

submitted as paragraph (3). 

30 TAC 116.10(6) ...... Definition of ‘‘facility’’ .................. 03/13/1996 Added new definition ................. Administrative correction to clarify the definition of ‘‘facility’’ is 

in the SIP. 

07/22/1998 Repealed and a new definition 

submitted as paragraph (4). 

Approved 09/06/06 (71 FR 

52698). 

09/04/2002 Redesignated to paragraph (6). 

Inadvertently identified as nonSIP provision in 08/28/07 SIP 

revision. 

30 TAC 116.10(7) ...... Definition of ‘‘Federally enforceable’’.09/11/00 New subparagraph (5)(F) .......... No action. 

09/04/02 Subparagraph (5)(F) redesignated to subparagraph (7)(F). 

Implements section 112(g) of 

Act. 

30 TAC 116.10(8) ...... Definition of ‘‘grandfathered facility’’.03/13/1996 Added new definition ................. Approval. 

07/22/1998 Repealed and a new definition 

submitted as paragraph (6). 

07/31/2002 Revised definition. 

09/04/2002 Redesignated to paragraph (8). 

30 TAC 116.10(10) .... Definition of ‘‘maximum allowable emission rate table’’.03/13/1996 Added new definition ................. Approval, 

07/22/1998 Repealed and a new definition 

submitted as paragraph (8). 

09/04/2002 Redesignated to paragraph (10). 

30 TAC 116.10(11) .... Definition of ‘‘modification of existing facility’’.03/13/1996 Added new definition ................. Disapproval of (A), (B), (E), and 

(G). 

07/22/1998 Repealed and a new definition 

submitted as paragraph (9). 

09/11/2000 Revised paragraph (9). 

09/04/2002 Redesignated to paragraph (11). 

30 TAC 116.10(12) .... Definition of ‘‘new facility’’ .......... 03/13/1996 Added new definition ................. Approval. 

07/22/1998 Repealed and a new definition 

submitted as paragraph (10). 

09/04/2002 Redesignated to paragraph (12). 

30 TAC 116.10(16) .... Definition of ‘‘qualified facility’’ ... 03/13/1996 Added new definition ................. Disapproval. 

07/22/1998 Repealed and a new definition 

submitted as paragraph (14). 

09/04/2002 Redesignated to paragraph (16). 

30 TAC 116.116 ......... Changes to Facilities ................. 03/13/1996 Added subsection (e) ................. Disapproval. 

07/22/1998 Repealed and a new 116.116 

(e) submitted. 

Disapproval. 

30 TAC 116.117 ......... Documentation and Notification 

of Changes to Qualified Facilities.

03/13/1996 Added new section .................... Disapproval. 

07/22/1998 Repealed and a new 116.117 

resubmitted. 

30 TAC 116.118 ......... Pre-Change Qualification ........... 03/13/1996 Added new section .................... Disapproval. 

07/22/1998 Repealed and a new 116.118 

submitted. 

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3Section 382.003(2) of the TCAA defines ‘‘air 

contaminant’’ as ‘‘particulate matter, radioactive 

matter, dust, fumes, gas, mist, smoke, vapor, or 

odor, including any combination of those items, 

produced by processes other than natural.’’ SB 1126 

did not revise this statutory term. TCEQ interpreted 

the legislative intent to allow individual 

compounds to be interchanged with other 

compounds in the same air contaminant category. 

Submitted 30 TAC 116.116(e)(3)(F) defines an ‘‘air 

contaminant category’’ as ‘‘a group of related 

compounds, such as VOCs, particulate matter, 

nitrogen oxides, and sulfur compounds.’’ An 

example is if the owner or operator wishes to make 

a change that will increase emissions of heptane, a 

VOC. The reductions relied upon in the 

applicability netting analysis will be acetone, 

another VOC. TCEQ has established an 

‘‘interchange’’ methodology to ensure that 

compounds within the VOCs air contaminant 

category, as interchanged, will have an equivalent 

impact on the air quality. 

4 ‘‘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. A mine, quarry, well test, or 

road is not a facility.’’ In this action, we are also 

proposing an administrative correction to clarify 

that the definition of ‘‘facility’’ is in the SIP. See 

section VII.C. 

5Texas 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). 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. 

6 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. 

7 ‘‘Account’’ for NSR purposes is defined in 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 

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

2005 (70 FR 16129)). 

IV. Is the Texas Qualified Facilities 

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 Qualified Facilities State Program 

submitted by Texas to EPA for approval 

into the State’s SIP. The submitted 

Program adds an exemption under State 

law allowing a change to an existing 

facility that is ‘‘qualified,’’ to net out of 

the NSR SIP permitting requirements. 

First, EPA wishes to acknowledge that 

its interpretation of the Texas law and 

the Texas NSR SIP inclines it to the 

legal position that the State uses a ‘‘dual 

definition’’ for the term ‘‘facility.’’ 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 (SIC code). EPA encourages 

comment on whether its understanding 

of Texas law is correct for the definition 

of ‘‘facility.’’ If a commenter does not 

believe this legal position is correct, we 

encourage the commenter to submit any 

applicable case law, Texas legislative 

history, etc., that can further our legal 

understanding of the State’s meaning of 

the term ‘‘facility.’’ The State legal 

meaning of the term ‘‘facility’’ is critical 

to EPA’s understanding of the Texas 

permitting program, both minor and 

major. We also are requesting comment 

on the meaning of ‘‘a TCEQ air quality 

account number.’’ This too is critical to 

our legal positions discussed today in 

this notice. 

The SIP revision submittals establish 

the criteria by which a physical change 

in, or change in the method of operation 

of, an existing minor or major Qualified 

Facility is not a modification and does 

not trigger the permitting requirements 

for a case-by-case NSR SIP permit, 

amendment, or alteration, or coverage 

under a minor NSR SIP permit by rule 

or standard permit. They also include 

the criteria for becoming a Qualified 

Facility, the permitting process required 

for a Qualified Facility, and the methods 

for determining the net effect of 

emission increases and decreases, 

compound interchanges,3 and intraplant 

trading of emissions (i.e., relying upon 

emission reductions from other existing 

Qualified Facilities in the applicability 

netting analysis). 

Under the submittals, a facility 4 is 

designated as a Qualified Facility if 

either of the following criteria is met: 

(1) The existing facility was issued a 

case-by-case Major or Minor NSR SIP 

permit or permit amendment, or was 

covered under a Minor NSR SIP permit 

by rule, within 10 years before the 

change occurs. See submittals at 30 TAC 

116.10(11)(E)(i). 

(2) The existing facility was issued a 

case-by case Major or Minor NSR permit 

or permit amendment, or was covered 

under a Minor NSR SIP permit by rule, 

for the voluntarily installed additional 

air pollution control methods (see 

submittals at 30 TAC 116.116(e)(6)), 

within 10 years before the change 

occurs (see submittals at 30 TAC 

116.10(1)). We request comment on 

whether our interpretation of the 

regulatory language is correct that a 

permit is required for a facility to be a 

Qualified Facility. This interpretation is 

critical to our position on whether all 

Qualified Facilities have undergone an 

ambient air quality analysis, as required 

before issuance of any Minor or Major 

NSR SIP permit in Texas. 

Under the second criterion, the 

additional air pollution controls 

methods must be at least as effective as 

the Minor NSR BACT5 that would have 

been required in a case-by-case Minor 

NSR SIP permit or permit amendment at 

the time the additional control methods 

were applied. An emissions limitation is 

established based upon the application 

of Minor NSR SIP BACT, which is 

reflected as an allowable emission rate 

in a permit. See the submittals at 30 

TAC 116.116(e)(6)(A) and (B) and page 

148 of the 1996 SIP revision submittal. 

The permit under the second criterion 

must have been issued within 10 years 

before the change occurs. See the 

submittals at 30 TAC 116.10(1) and 

(11)(E). The Texas legislature 

envisioned this second criterion as a 

‘‘carrot’’ to encourage grandfathered 

facilities 6 to apply for a permit to 

become qualified and thereby be able to 

participate in the netting. See e.g., 

submittals at 30 TAC 116.10(2)(C). At 

the time of the State’s adoption of this 

submitted Program, the State did not 

have the statutory authority to impose 

controls on or require permits for 

grandfathered facilities. 

The submitted Program applies only 

to Qualified Facilities with the same 

TCEQ air quality account number.7 See 

submittals at 30 TAC 116.116(e)(2). The 

first step in determining whether there 

is a modification subject to NSR review 

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48456 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

8At the time of this 1995 statutory revision to the 

definition of ‘‘modification of existing facility,’’ the 

consensus legal interpretation of this definition was 

that it applied only to minor modifications, not 

major modifications. 

is to evaluate the type of proposed 

change. The change cannot be an 

increase in emissions of any air 

contaminant not previously emitted. See 

submittals at 30 TAC 116.116(e)(1)(B). 

The change cannot be any physical 

change to the existing permitted Major 

or Minor Qualified Facility that creates 

a discrete or identifiable structure, 

device, item, equipment, or enclosure, 

which constitutes or contains a 

stationary source. See submittals at 30 

TAC 116.116(e)(5)(A). If the change is 

not either of these types of change, next 

one evaluates whether the change’s 

increased emissions will be above the 

most stringent of the Qualified Facility’s 

permitted emissions rate or an 

applicable state or federal rule. There is 

no modification subject to NSR review 

if the change does not cause an increase 

in emissions above the Facility’s most 

stringent applicable emissions rate 

(imposed by NSR SIP permit or 

applicable state or federal rule). See the 

submittals at 30 TAC 116.116(e)(3) and 

30 TAC 116.116(e)(1)(A)–(B). In no way 

can a Qualified Facility’s existing most 

stringent applicable emissions rate be 

lessened by using this submitted 

Program. See submittals at 30 TAC 

116.116(e)(8). 

If the change will cause an increase in 

emissions above the Qualified Facility’s 

most stringent applicable emissions rate 

(imposed by NSR SIP permit or 

applicable state or federal rule), then the 

holder of the permit may perform an 

applicability netting analysis. The 

applicability netting analysis considers 

emissions increases from the change 

and reductions from the Qualified 

Facility making the change and 

reductions from any other existing 

permitted minor or major Qualified 

Facility at the same air quality account 

number. These reductions relied upon 

in the applicability netting analysis 

must be surplus to each Qualified 

Facility’s most stringent applicable 

emissions rate (imposed by NSR SIP 

permit or applicable state or federal 

rule). See the submittals at 30 TAC 

116.116(e)(2) -(3) and 30 TAC 116.10(2). 

See also Texas NSR SIP-codified rule at 

30 TAC 116.115(b)(2)(I)(ii). 

No emissions increases are considered 

from the other participating existing 

permitted minor or major permitted 

Qualified Facilities. If the sum of the 

increase in emissions from the projected 

change and an equivalent decrease in 

emissions from the Qualified Facility 

making the change is zero, i.e., no net 

increases, the change is not a 

modification and is not subject to the 

NSR permitting requirements. See 

submittals at 30 TAC 116.116(e)(3). If 

the sum is above zero, then the holder 

of the permit that is making the change 

can use the netting process to offset the 

change by an equivalent decrease at 

other participating Qualified Facilities. 

Id. If the sum is zero, i.e., no net 

increases, the change is not a 

modification and not subject to NSR 

permitting requirements. Id. If the sum 

is above zero, i.e., net increases, the 

change is a modification subject to NSR 

permitting requirements. See submittals 

at 30 TAC 116.116(e)(1(A). 

B. Is the Submitted Program Clearly a 

Minor NSR SIP Revision? 

Our evaluation of Texas’ submitted 

SIP revisions is guided by whether the 

submitted Qualified Facilities State 

Program applies to Major NSR or Minor 

NSR, or both. From our review of the 

record with the SIP revision 

submissions and other correspondence 

and TCEQ guidance, we believe that 

Texas intends its Qualified Facilities 

State Program to apply only to minor 

modifications at minor and major 

existing Qualified Facilities. See e.g., 20 

Tex. Reg. 8306 (October 10, 1995), 21 

Tex. Reg. 1579 (1996), the 1996 SIP 

revision submittal particularly at pages 

141, 142, 143, 148, 153, 154 of 215 

pages, December 2000 Guidance for Air 

Quality, Qualified Changes under 

Senate Bill 1126, Air Permits Division, 

TCEQ (see particularly pages 3, 20), and 

TCAA Section 382.003(9), introductory 

paragraph and (A)–(G). As a matter of 

fact, EPA sent a comment letter to Texas 

during its public comment period and 

EPA said in its 1995 letter that Texas 

had adequately satisfied our concern 

that its Qualified Facilities State 

Program, as proposed, would not 

circumvent or supersede any Major NSR 

SIP requirements. Since we sent the 

1995 letter, however, the State 

legislators have revised the Texas Clean 

Air Act (TCAA) significantly. 

For the submitted Program, the TCAA 

definition for ‘‘modification of existing 

facility’’ at Section 382.003, Health and 

Safety Code, was revised by Senate Bill 

1126 of the 1995 74th Texas Legislature. 

The statutory definition was revised to 

add, among other things, subsection at 

(E), a new category for when a physical 

change in, or change in the method of 

operation of, an existing major or minor 

NSR Qualified Facility is not a 

modification subject to the NSR SIP 

permitting requirements.8 It provides 

that increases in emissions are not a 

modification if the increases occur at an 

existing permitted Qualified Facility 

and there are sufficient emission 

reductions from it and other 

participating existing permitted 

Qualified Facilities, to offset the 

increase. 

The Legislature in 1995 also changed 

the factors for determining whether a 

modification occurs by adding a new 

subsection (b) to TCAA Section 

382.0512. In all situations but for 

modifications of existing Qualified 

Facilities, in determining whether a 

proposed change at an existing facility 

is a modification, there can be no 

consideration of the effect on emissions 

of any pollution control method applied 

to the source and no consideration of 

any decreases in emissions from other 

sources, including the source proposing 

to make the change. See TCAA Section 

382.0512 (a), introductory paragraph, 

and (1)–(2). The legislative intent was to 

allow under the Qualified Facilities 

State Program, consideration of any 

pollution control method applied to the 

Qualified Facility (see the submittals at 

30 TAC 116.116(e) (2)) and any 

decreases in emissions from other 

Qualified Facilities in determining if an 

increase in emissions had occurred by a 

change made at a Qualified Facility, i.e., 

a netting analysis now was allowed to 

net out of minor NSR permitting 

requirements. Additionally, 

grandfathered facilities could 

voluntarily install emission controls, 

obtain a permit reflecting the highest 

achievable actual emissions rate after 

the installation of the emission controls, 

and participate in this new Program. See 

SB 1126 Bill Analysis, April 10, 1995. 

In 1999, the Texas legislature made 

extensive revisions to the TCAA. 

Relevant to today’s proposed action is 

the legislature’s adding an explicit 

statutory prohibition against the use of 

an Exemption or Permit by Rule or a 

Standard Permit for major 

modifications. See sections 382.05196 

and .057. These 1999 legislative actions 

required a new legal review of the 

statutory definition for ‘‘modification of 

existing facility’’ to see if it was still 

limited to minor modifications. It is 

EPA’s interpretation that the 1999 

legislative changes made this statutory 

definition ambiguous. 

The statutory definition on its face 

does not prohibit the use of the Program 

for a major modification as defined by 

the CAA and EPA’s Major NSR SIP 

regulations. This Texas statutory 

definition has never been explicitly 

revised to prohibit major modifications. 

There are no prohibitions against using 

the submitted Program for major 

modifications, as there now are for the 

minor NSR SIP permits/exemptions by 

rule and standard permits. There are no 

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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 48457 

9The 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 on 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. 

statutory provisions in the TCAA that 

clearly limit modifications under the 

submitted Program to minor 

modifications. 

Similarly, the regulatory provisions 

submitted by Texas do not prohibit the 

use of the submitted Program for major 

modifications of existing minor and 

major stationary sources. The submitted 

rules do not limit the use of the Program 

to Minor NSR. The Program does not 

contain any emissions limitations, 

applicability statement, or regulatory 

provision restricting the modification to 

minor as do the Texas Minor NSR SIP 

rules for Permits by Rule in Chapter 106 

and Standard Permits in Chapter 116, 

Subchapter F.9 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)(4), 

the submitted rules do not require that 

a major modification, as defined in the 

Major NSR SIP regulations, must meet 

the Major NSR permitting requirements. 

Although there are recordkeeping 

requirements in the Program at new 30 

TAC 116.117(a)(4) requiring owners and 

operators to maintain documentation 

containing sufficient information as may 

be necessary to demonstrate that the 

project will comply with the Federal 

CAA, Title I, parts C and D, these are the 

same general provisions as those in the 

Minor NSR SIP Permits by Rule, Minor 

NSR SIP Standard Permits, and the 

general provisions of the SIP at 30 TAC 

116.111 (a) (2)(H) and (I) for Minor and 

Major NSR SIP permits. These 

recordkeeping requirements, although 

necessary for NSR SIP approvability, 

cannot substitute for a clear and 

enforceable provision that limits 

applicability in the submitted Program 

to Minor NSR and to minor 

modifications only. 

If Texas truly intends for the 

submitted Qualified Facilities State 

Program to apply only to Minor NSR, at 

a minimum, Texas must amend its rules 

to include additional provisions that 

clearly limit this Program’s 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. 

The submittals contain no 

applicability statement or regulatory 

provision that limits applicability to 

minor modifications. Without a clear 

statement of the applicability of the 

Program, the Program as submitted is 

confusing to the public, regulated 

sources, government agencies, or a 

court, because it can be interpreted as 

an alternative to evaluating the new 

modification as a major modification 

under Major NSR requirements. The 

Program fails to limit clearly its use to 

only the Texas Minor NSR SIP 

requirements. Because of the overbroad 

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 its 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 Qualified Facilities 

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, 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 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 with EPA SIP policy 

and guidance. These can include, 

among other things, enforceability, 

compliance assurance, replicability of 

an element in the program, 

accountability, test methods, 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 

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48458 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

10While 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.’’ 

beginning on page 13567 of the General 

Preamble. 

B. Does the Submitted Program Prohibit 

Circumvention of Major NSR? 

There are no express regulatory 

provisions in the submitted Program 

similar to the Texas Minor NSR SIP 

provisions for Minor NSR Permits by 

Rule and Minor NSR 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, contain clear regulatory 

applicability requirements limiting their 

use to Minor NSR, clear regulatory 

requirements prohibiting their use for 

any project that constitutes a 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, regulatory provisions 

prohibiting the use for Major NSR, and 

no regulatory provisions prohibiting 

circumvention of Major NSR, in the 

submitted Qualified Facilities State 

Program’s rules and definitions. 

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 

changes. The submitted Program’s rules 

and definitions are not clear on their 

face that first one must determine the 

threshold question of whether the 

change is a major stationary source or a 

major modification subject to Major 

NSR. The modifications that would be 

authorized under the submitted Program 

can include major modifications. The 

change that could be a major 

modification, including PSD BACT or 

NNSR LAER, could bypass the Major 

NSR SIP 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 making a 

change can be authorized to use the 

Program. 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 revised 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 

submit a demonstration showing how 

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

stringent as the definition of 

‘‘modification’’ in EPA’s revised 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).10 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. 

The submitted Program allows for 

netting reductions to come from outside 

a major stationary source, as defined by 

the Major NSR rules. It allows existing 

permitted Qualified Facilities at the 

same air quality account site, to 

participate in the applicability netting 

analysis for another Qualified Facility 

on the company site that is making the 

change. 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, 

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11The 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. 

under the Program, the netting analysis 

can include multiple participating major 

stationary sources 11, and if there is no 

net emission increase, Major NSR 

preconstruction review is not triggered. 

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 participating in 

the netting analysis by contributing 

offsetting emission reductions. 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 the unit 

making the change and the participating 

units contributing emission reductions 

are not all of the facilities within a 

major stationary source. Under the 

submitted Program, not all emission 

points, units, facilities, major stationary 

sources, minor modifications at the site 

or their increases in emissions are 

required to be evaluated in the 

applicability netting analysis. 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 Qualified Facilities 

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 

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 regarding the 

requirement that an increase in 

emissions must be measured based on 

actual emissions, not permitted or 

potential. Under the submitted Program, 

the project’s increases in emissions are 

calculated based upon its projected 

allowable emissions. The baseline uses 

the permitted allowable emission rate 

(lowered by any applicable state or 

federal requirement) if the Facility 

qualified under option 1. Otherwise, the 

baseline uses the permitted actual 

emission rate (minus any applicable 

state or federal requirement). See 30 

TAC 116.10(2). In the applicability 

netting analysis, the baseline for all the 

other participating minor and major 

existing Qualified Facilities is 

calculated in the same way. The 

emission reductions are calculated 

similarly, i.e., reductions beyond the 

permitted allowable or actual emission 

rates (minus the applicable state and 

federal requirements). Thus, this 

submitted Program allows an evaluation 

using allowable, not actual emissions as 

the baseline to calculate the project’s 

proposed emission increase and for 

many of the netting emission 

reductions, thereby in many cases 

possibly circumventing the major 

modification applicability requirements 

under the Major NSR rules, rules that 

are based upon using actual emissions 

to calculate baseline emissions. Baseline 

actual emissions are required in the 

Major NSR SIP requirements for major 

source netting as the starting point from 

which the amount of creditable 

emission increases or decreases is 

determined. 

We propose to find that the State’s 

procedures 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, rather than allowable 

emissions. 

E. 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 RFP, or any other 

applicable requirement of the Act. 

The State did not provide any 

demonstration showing how the 

submitted Program would not interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress, or meet any other CAA 

requirement. 

VI. What Is EPA’s Evaluation of the 

Submitted Texas Qualified Facilities 

State Program as a Minor NSR SIP 

Revision? 

Section 110(a)(2)(C) of the Act 

requires that States have Minor NSR SIP 

permitting programs as well as Major 

NSR SIP permitting programs under part 

C (PSD) and part D (nonattainment NSR) 

of Title I. 40 CFR 51.160–51.163 contain 

the Minor NSR SIP regulatory 

requirements and provide that a Minor 

NSR SIP must include legally 

enforceable procedures enabling the 

State to determine whether construction 

or modification would violate a control 

strategy or interfere with attainment or 

maintenance of a NAAQS. 40 CFR 

51.160(e) provides that States may 

exempt certain sources from regulation 

based on the type and size of the facility 

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and requires that ‘‘the plan must discuss 

the basis for determining which 

facilities will be subject to review.’’ 

At a minimum, a minor NSR SIP 

revision must include the requirement 

for minor sources and modifications to 

undergo public review, be subject to 

enforceable emissions limits, 

monitoring, recordkeeping, and 

reporting requirements, and inspection 

and enforcement provisions. 

Additionally, the State must 

demonstrate that the Minor NSR SIP 

revision does not violate a control 

strategy or interfere with attainment or 

maintenance of a NAAQS. 

A. Does the Submitted Program Meet the 

Minor NSR SIP Requirements for 

Noninterference With the Major NSR 

SIP Requirements? 

There are no statutory and/or 

regulatory provisions that clearly 

prohibit the use of the Program for 

major modifications. Nor are there any 

statutory and/or regulatory provisions 

clearly limiting the use of the Program 

to minor modifications. There are no 

provisions that prohibit the use of the 

Program for 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 

using it for Major NSR. There is no 

express provision in the submittals 

requiring that this 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 making 

of a change can be netted out from the 

Minor NSR SIP requirements. The 

regulatory provisions in the submitted 

Program fail to require that first one 

must determine the threshold question 

of whether the 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. 

Therefore, EPA is proposing to find 

that the submitted Program fails to 

prevent noninterference with the Texas 

Major NSR SIP requirements. We are 

proposing to disapprove the submitted 

Program as not meeting the Minor NSR 

SIP requirements to ensure that the 

Major NSR SIP requirements continue to 

be met. 

B. Does the Submitted Program Meet the 

Request for an Exemption or a 

Relaxation From the Minor NSR SIP 

Requirements? 

As noted above, EPA may approve an 

exemption to a State’s Minor NSR SIP 

if certain statutory requirements are 

met. But any such exemption must be 

consistent with the requirement at 40 

CFR 51.160(a)–(b) that a plan contain 

legally enforceable procedures to ensure 

that the construction or modification of 

a source will not result in a violation of 

applicable portions of a control strategy 

or interfere with NAAQS attainment. 

Consequently, EPA may approve 

exempting certain sources and 

modifications from obtaining a Minor 

NSR permit as part of a State’s Minor 

NSR SIP, if the Act and regulations are 

met and the State shows that the sources 

will have only a de minimis effect. 

Moreover, the approvability of a 

State’s proposed de minimis threshold 

is not determined solely by 

mechanically comparing it with other 

thresholds approved for other states. 

The legal test for whether a plan’s 

threshold can be approved is whether it 

is consistent with the need for a plan to 

include legally enforceable procedures 

to ensure that the State will not permit 

a source that will violate the control 

strategy or interfere with NAAQS 

attainment. That is a requirement that 

all minor source thresholds must meet. 

The submitted Program could be 

considered an exemption from Minor 

NSR. It is a netting program allowing 

certain changes to net out of being 

subject to Minor NSR. These certain 

changes without the netting would be 

Minor NSR modifications subject to 

Minor NSR. To be approvable as an 

exemption from the Texas Minor NSR 

SIP, the State must demonstrate that this 

exemption will not permit changes that 

will violate the Texas control strategies 

or interfere with NAAQS attainment. 

Furthermore, EPA does view the 

submitted Program as a SIP relaxation. 

In order to approve a SIP relaxation, 

EPA must find pursuant to section 

110(l) that the SIP relaxation does not 

interfere with any applicable 

requirements concerning attainment and 

reasonable further progress, or any other 

applicable requirement of the Act. 

1. Noninterference With the NAAQS 

and State Control Strategies by the 

Existing Qualified Facilities 

The Minor NSR and Major NSR 

existing Qualified Facilities, no matter 

by which of the two options they chose 

to become qualified, will have a Minor 

or Major NSR SIP permit. A Minor and 

Major NSR SIP permit under the Texas 

NSR SIP requirements includes an air 

quality analysis, i.e., a demonstration 

there will be no adverse impact on the 

NAAQS. Each of the Minor or Major 

NSR SIP permits for the existing 

Qualified Facilities will include 

emissions limitations based on the 

chosen control technology, with a 

determination that the permitted 

Qualified Facility will not interfere with 

attainment and maintenance of the 

NAAQS or violate any State control 

strategies. As noted above in IV.A, we 

request comment on whether our 

interpretation of the State’s regulatory 

language is correct that a permit is 

required for a facility to be a Qualified 

Facility. 

2. Ensuring Noninterference With the 

NAAQS and State Control Strategies by 

the Netting Reductions 

We propose to find that because the 

participating Qualified Facilities are 

permitted through an existing SIP 

approved process, the allowable level 

established in that permit assures that 

the Qualified Facility can operate up to 

that level of emissions without 

interfering with attainment and 

maintenance of the NAAQS and not 

violating any State control strategy, as 

required by the Texas NSR SIP. The 

next step requires EPA to evaluate 

whether the Minor NSR applicability 

netting analysis itself includes sufficient 

safeguards to protect the NAAQS and 

State control strategies. For aid in 

evaluating this submitted applicability 

netting analysis as a Minor NSR SIP 

revision submittal, EPA used the 

fundamental principles of the Major 

NSR SIP netting requirements as a 

yardstick for appropriate comparison 

since their intent is to prevent violations 

of the NAAQS and State control 

strategies. 

Before the netting analysis comes into 

play, there must be a physical or 

operational change at the Qualified 

Facility. The change must result in an 

emissions increase above the authorized 

allowable (the most stringent of the SIP 

permit, permit amendment, standard 

permit, or permit by rule or any 

applicable state or federal requirement) 

at that Qualified Facility. Under the 

Texas Minor NSR SIP, the change must 

cause an increase in the emission rate of 

any source, change the method of 

control of emissions, or cause a change 

in the character of the emissions. See 

SIP-codified rule at 30 TAC 

116.116(b)(1)(A)—(C). If any of these 

three changes are to occur, the owner or 

operator must obtain a Minor or Major 

NSR SIP permit amendment or coverage 

under a Minor NSR SIP permit by rule. 

Therefore, the Texas Minor NSR SIP 

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12The Texas Minor NSR SIP requires that the 

holder of any type of Minor NSR SIP permit must 

meet its representations in its permit application or 

registered certification. The registered certification 

applies to the Minor NSR SIP standard permits and 

permits by rule. The permit application refers to the 

Minor NSR SIP case-by-case permit or amendment. 

The operating hours, operating procedures, 

capacity, etc., must be included in the permit 

application or registered certification. They become 

conditions from which it is unlawful to vary. See, 

e.g., SIP-codified rules at 30 TAC 116.116(a)–(d) 

and 30 TAC 106.6. 

relies upon allowable emissions, i.e., the 

most stringent emissions rate for a 

facility, as required by the most 

stringent of the SIP permit or any 

applicable state or federal requirement, 

to determine whether a modification has 

occurred.12

Once the Minor NSR netting comes 

into play, we compared the fundamental 

principles of Major NSR netting to the 

submitted Minor NSR netting program. 

We did this because these fundamental 

principles were established to ensure 

there would be no interference with the 

NAAQS and control strategies by using 

the Major NSR netting. The Major NSR 

netting program includes the following: 

(1) An identified contemporaneous 

period, (2) the reductions must be 

contemporaneous and creditable, (3) the 

reductions must be of the same 

pollutant as the change, (4) the 

reductions must be real, (5) the 

reductions must be permanent, and (6) 

the reductions must be quantifiable. See 

the definition of ‘‘net emissions increase 

at 40 CFR 51.165(a)(1)(vi) and 

51.166(b)(3). To be considered 

creditable, the reduction’s old level of 

emissions must exceed the new level of 

emissions, the reduction must be 

enforceable as a practical matter at and 

after the time the actual change begins, 

and the reduction must have 

approximately the same qualitative 

significance for public health and 

welfare as that attributed to the increase 

from the particular change. 

Major NSR netting is based upon all 

contemporaneous increases and 

decreases at the same major stationary 

source. The submitted Program’s netting 

is not based upon all contemporaneous 

increases at the same major stationary 

source and not all decreases at the same 

major stationary source. We propose, 

however, to find that such an approach 

satisfies the minimum requirements for 

an approvable Minor NSR netting 

program as long as the ambient air is 

protected in the trading. 

The reductions in the Program’s 

netting are based upon the most 

stringent of the permitted emissions rate 

(which includes the highest achievable 

actual emission rate) or any applicable 

state or federal rule. Therefore, this 

Program’s netting is not based totally on 

changes in actual emissions. We are 

proposing to find that this still is 

acceptable as a Minor NSR netting 

program as long as the ambient air is 

protected in the trading. 

It is not clear in the submitted rules 

when the equivalent decreases in 

emissions must have occurred, other 

than it is clear that they must occur 

before the change occurs. The intent of 

the State was that there would be no 

look back period, i.e., no window or 

contemporaneous period. The State 

discusses in the SIP revision submittals 

and in its Texas Register that any reliedupon reductions must occur 

simultaneously at the time of the 

increase. See 21 Tex. Reg. 1573 

(February 27, 1996). It wanted to ensure 

that there would not be any net 

reductions associated with this Program 

available to be used later in a 

demonstration of attainment or 

reasonable further progress in the Texas 

SIP. See page 154 of the 1996 SIP 

revision submittal. In this vein, it did 

not want a netting window; the State 

saw a netting window as an unnecessary 

complication for this Program. 

Therefore, the State’s clear intent was 

that each time there is a proposed 

change wishing to use the Program’s 

netting, the holder of the permit is 

required to perform a new, separate 

netting analysis to demonstrate that a 

net increase has not occurred. 

Each project was to require a separate 

demonstration that a net increase has 

not occurred. As each project requires a 

separate demonstration, the decrease 

can be used only for that project. For an 

additional separate project, the 

reductions must occur at the time of that 

additional project which will need to 

obtain additional reductions to net out. 

This should prevent double counting of 

the netting reductions. EPA specifically 

solicits comment on this point of double 

counting. 

Although the State’s intent is clear, 

EPA cannot find any provisions in the 

Program that address this, much less 

require there be a separate netting 

analysis performed for each proposed 

change. Therefore, the State at a 

minimum, must revise its rule at 30 

TAC 116.116(e) to explicitly require that 

each proposed change requires a new, 

separate netting analysis. 

Concerning the fifth principle that the 

reductions must be permanent, we 

cannot find any provision in the 

submitted rules that specifically 

addresses this. Texas should include a 

prohibition against future increases at 

the Qualified Facility, or include 

regulatory language that assures that any 

future increase at a Qualified Facility at 

which a previous netting reduction 

occurred is analyzed in totality to assure 

that the NAAQS remains protected from 

the original increase. For example, we 

are concerned that if Qualified Facility 

‘‘A’’ relies on decreases from Qualified 

Facility ‘‘B,’’ Qualified Facility ‘‘B’’ 

could undertake a future change and 

increase emissions above its new 

allowable level. Although under the 

State’s program, Qualified Facility ‘‘B’’ 

would have to seek emission reductions 

from another Qualified Facility before 

increasing emissions and there is no net 

change in emissions from the account 

site, we remain concerned that 

reductions from a third qualified facility 

may not be sufficient to offset potential 

air quality impacts from the original 

change at Qualified Facility ‘‘A.’’ In 

other words, the submitted rules do not 

prohibit a shift in emissions from 

Qualified Facility ‘‘A’’ to ‘‘B’’ and then 

to ‘‘C,’’ or otherwise assure that the 

ambient air quality remains protected 

with regards to the original change at 

Qualified Facility ‘‘A.’’ Consequently, 

the State at a minimum must revise its 

rules to require that the reductions be 

permanent. 

The reductions must be of the same 

pollutant as the change. See submitted 

116.116(e)(3). We propose to find that 

the State has gone beyond this 

fundamental principle and established 

an interchange requirement at submitted 

30 TAC 116.116(e)(3) for determining 

whether the interchange of different 

compounds within the same air 

contaminant category will result in an 

equivalent decrease in emissions, e.g., 

one VOC for another VOC. The emission 

rates for each different compound must 

be adjusted using a ratio of the effects 

screening levels of the compounds. See 

30 TAC 116.116(e)(3)(B) through (E). 

TCEQ has established an ‘‘interchange’’ 

methodology to ensure that compounds 

within for example the VOC air 

contaminant category, as interchanged, 

will have an equivalent impact on the 

air quality. 

We also propose to find that the 

reductions also meet the principle for 

being quantifiable by the submitted 30 

TAC 116.10(1) and (2) that describe how 

to calculate the reductions but 

nonetheless, we request comment on 

whether these regulatory provisions 

provide clear direction on the 

appropriate calculation procedures. 

As an example of the quantifiability of 

the reductions, if the reductions come 

from a Qualified Facility under a Minor 

NSR permit by rule, its allowable 

emissions are the most stringent of the 

emissions rate allowed in the SIP rules 

for Minor NSR permits by rule, the 

emissions rate specified in a particular 

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permit by rule, or the maximum 

emissions rate represented in the 

required certified registration. The 

Texas Minor NSR SIP provides that the 

holder of a Minor NSR permit by rule 

may submit a certified registration that 

includes in it maximum emissions rates 

(lower than the rates allowed in the SIP 

rule) and includes a certification that 

the maximum emissions rates listed on 

the registration reflect the maximum for 

operation of the facility. Additionally, 

the lowest computed emissions rate 

must be reduced again by the 

application of any applicable 

(promulgated since the issuance of the 

permit) state or federal requirement. 

This means that not only are the 

reductions quantifiable but the first 

prong for creditability is met. The 

reduction’s old level of emissions 

exceeds the new level of emissions. 

Notwithstanding our proposed 

finding that the submitted Program 

satisfies the basic criteria that emissions 

reductions be quantifiable, we request 

comment on one additional aspect of 

the netting calculation procedures. The 

submitted rules provide that a Qualified 

Facility nets its emissions increase on 

the same basis as its allowable 

emissions limitation. See 30 TAC 

116.116(e)(3)(A). For example, we are 

concerned that if a Qualified Facility 

took a decrease in its hourly rate that it 

could offset that emissions decrease by 

increasing its hours of operation; if such 

an increase were not prohibited the 

decrease is effectively negated. We 

request comment on whether netting on 

such a basis is sufficiently quantifiable, 

and whether any additional provisions 

are necessary to assure that the entire 

emissions increase is properly netted 

against reductions from the other 

Qualified Facility. 

The State also has established a 

methodology whenever there is a 

different location of emissions because 

of the intraplant trading. For example, 

where the netting has the effect of 

moving emissions closer to the plant 

property line than the Qualified Facility 

to be changed, there is a pre-notification 

process to analyze whether there could 

be an increase in off-site impacts. We 

propose to find that this will ensure the 

reductions have approximately the same 

qualitative significance for public health 

and welfare, the third prong for 

creditability of the reductions. See 

submitted 116.117(b)(5). 

Nonetheless, EPA has some concern 

on the protection of the ambient air 

quality and proposes to find that the 

netting provisions are inadequate to 

assure protection of the ambient air 

quality. Specifically, the State must add 

language to its Program’s rule at 30 TAC 

116.116(e) that explicitly requires the 

netting process assures protection of the 

NAAQS by providing that the netting 

must result in the same air quality 

benefit. We are requiring this because 

although the State’s intent is clear the 

netting process must have this result, 

there is no corresponding explicit 

requirement in the Program’s rules. The 

State could also consider whether in 

nonattainment and near-nonattainment 

areas, the rules should require that the 

netting must not result in an adverse air 

quality impact. Secondly, even though 

the State’s intent is clear, to ensure that 

the NAAQS are protected, the State 

must add language to its Program’s rule 

at 30 TAC 116.117, requiring the owner 

or operator to maintain the information 

and analysis showing how it concluded 

that there will be no adverse impact on 

ambient air quality before undertaking 

the change. 

3. Minor NSR SIP Enforceability 

Requirements 

Section 110(a)(2)(A) of the Act 

requires that a SIP revision include 

enforceable emission limitations and 

other means, as may be necessary or 

appropriate to meet the Act’s 

requirements. This includes the 

requirement that minor modifications 

have enforceable emissions limits. The 

Program is not clear that each Qualified 

Facility involved in the netting 

transaction must submit a permit 

application and obtain a permit revision 

reflecting all of the changes made to 

reduce emissions (relied upon in the 

netting analysis) as well as reflecting the 

change itself that increased emissions. 

The Texas NSR SIP rule at 30 TAC 

116.111(a)(1) is clear that in order to be 

granted a case-by-case Minor or Major 

NSR SIP permit or permit amendment, 

an application must be submitted that 

includes a complete Form PI–1. For 

coverage under a Minor NSR permit by 

rule or standard permit, there is an 

applicable permit with an emissions 

limitation. 

The Program’s rules at 30 TAC 

116.116(e)(4) and 116.117(b)(1)–(3) are 

not clear that it is a permit application 

or registration that must be submitted 

and that a revised permit must be issued 

by the TCEQ to reflect the changes made 

by all of the participating Qualified 

Facilities. It is not clear that the 

referenced notification of change, Form 

PI–E, is a permit application. There is 

no discussion of when the TCEQ issues 

the revised permit. See the submittals at 

30 TAC 116.117(b). 

If the change would affect the Special 

Conditions in the Permit for any 

participating Qualified Facility, 

notification must be made prior to the 

change and approval is required by the 

TCEQ. This requirement also is not 

clear, however, that a permit application 

is required. Nor is it clear when the 

TCEQ is required to issue the revised 

permit. 

EPA acknowledges that 116.117(b)(1) 

through (3) reference a PI–E Form and 

this name is similar to the Form PI–1 

referenced in the SIP rules, which is the 

TCEQ standard permit application form. 

Nevertheless, the Program’s rules refer 

to the submittal of this Form PI–E as if 

it were a reporting or notification 

requirement, not as the submittal of a 

form to the TCEQ that begins the permit 

revision process. 

There are no provisions in 30 TAC 

116.117(b) requiring a permit 

application be submitted to the TCEQ. 

There also are no provisions in 30 TAC 

116.117(b) clearly indicating TCEQ 

must issue a revised permit for the 

changes made by all of the participating 

Qualified Facilities. At a minimum, the 

State must revise its rules to make it 

clear that a permit application must be 

submitted by each participating 

Qualified Facility and the changes made 

by the participating Qualified Facilities 

are reflected in revised permits issued 

by the TCEQ. 

4. Potential Impact of Time Lag Upon 

Protection of the NAAQS 

EPA also is concerned about the lapse 

of time before each Qualified Facility’s 

permit is revised. The Qualified Facility 

making the change without relying upon 

any reductions outside of it, must 

submit the request by August 1 of each 

year, showing the changes made during 

the preceding annual period of July 1– 

June 30. We believe that this is too long 

of a lag time between submitting the 

permit applications and TCEQ revising 

them downward to reflect the reliedupon emission reductions or the change 

being made. This lag time can lead to 

the State not knowing within an 

appropriate timeframe that the change 

violated the NAAQS and/or State 

control strategies or that the relied-upon 

reductions for whatever reason did not 

ensure protection of the NAAQS and the 

control strategies. The State also may 

not find out about such problems until 

after the source(s) has made the changes 

and incurred significant associated 

expenses. Therefore, we are proposing 

that this time should be no longer than 

six months, rather than a year, but 

nonetheless we request comment on 

whether six months is an acceptable 

lapse of time to ensure noninterference 

with the NAAQS and control strategies. 

In summary, there is no explicit 

requirement that a permit application 

must be submitted for the change and 

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13The State may be able to provide additional 

information during the public comment period 

showing how the exemption meets all the 

requirements of the Act, including enforceability, 

protecting all NAAQS, RFP, and control strategies. 

For example, there may be information enabling a 

reliable estimate of the exempted changes over the 

life thus far of the Program, e.g., the average 

percentage of participating Qualified Facilities that 

require a preconstruction review because of their 

permit’s conditions. This percentage may be a high 

percentage of the participating universe, and the 

State could provide documentation of how many of 

these pre-notification changes it reviews and 

authorizes as a revised permit, within the 45 days. 

This could be broken down into the tpy of 

exempted changes. EPA also notes that under the 

submitted Program’s rules, the change cannot be a 

physical change that creates a discrete or 

identifiable structure, device, item, equipment, or 

enclosure, that constitutes or contains a stationary 

source. Texas may be able to provide information 

that this prohibition reduces the numbers and types 

of changes that are authorized under the submitted 

Program. There also could be available information 

illustrating the changes before netting, are truly de 

minimis for a minor NSR SIP program, taking into 

account the nonattainment and near-nonattainment 

areas within the State of Texas. The State will need 

to provide a thorough account of future growth 

potential. Modeling may be required to show the 

expected impacts on ambient air quality 

(particularly for sources in complex terrain areas). 

EPA is willing to work with the State on what is 

an approvable enforceable permitting limitations 

process and what is an approvable exemption for 

this Texas Qualified Facilities State Program. 

for any relied-upon emissions 

reductions in the netting analysis 

thereby making the new Program 

unenforceable. There is too long a lag 

time before a revised permit is issued in 

certain circumstances that can lead to a 

violation of a NAAQS, RFP, or control 

strategy without the TCEQ becoming 

aware of it in a timely manner. There is 

not sufficient information before EPA to 

make a determination that the exempted 

changes from the Minor NSR 

requirements will have only a de 

minimis effect and that the requested 

SIP revision relaxation does not 

interfere with any applicable 

requirements concerning attainment and 

reasonable further progress, or any other 

applicable requirement of the Act, as 

required by section 110(l).13

C. What Is EPA’s Summary of Whether 

the Submitted Program Meets the 

Requirements for a Minor NSR SIP 

Revision? 

The 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 for determining whether a change 

is subject to Major NSR. The Program 

lacks requirements necessary for 

enforcement of the applicable emissions 

limitations, including a permit 

application and issuance process. 

Overall, the 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 Program’s exemption from 

the Texas Minor NSR SIP would not 

violate the NAAQS or the State’s control 

strategies and whether the SIP 

relaxation would not interfere with 

NAAQS attainment, reasonable further 

progress, or otherwise meet any other 

requirement of the Act. 

Therefore, we are proposing to 

disapprove the submitted Qualified 

Facilities State Program as not meeting 

sections 110(a)(2)(C) and 110(l) of the 

Act and 40 CFR 51.160. 

II. What Is EPA’s Evaluation of the 

Submitted General Definitions? 

A. Which Submitted General Definitions 

Meet the NSR SIP Requirements? 

We are proposing to approve the 

following provisions of the SIP 

submittals as meeting 40 CFR Part 51 

and the CAA. 

30 TAC 116.10(8)—‘‘grandfathered 

facility.’’ 

This submitted definition is 

approvable because it defines which 

facilities are exempt from the NSR 

requirements, i.e., those that were 

constructed or modified before the date 

that TCEQ began permitting new and 

modified facilities, which was August 

30, 1971. This submitted definition is 

independent of and severable from the 

other submitted definitions. We are 

proposing to approve this submitted 

definition as meeting the Federal 

requirements. 

30 TAC 116.10(10)—‘‘maximum 

allowable emissions rate table 

(MAERT).’’ 

The submitted definition is 

approvable because it is the same as the 

SIP-codified 30 TAC 116.115(b)(2)(G). 

This submitted definition is 

independent of and severable from the 

other submitted definitions. We are 

proposing to approve this submitted 

definition as meeting the Federal SIP 

requirements. 

30 TAC 116.10(12)—‘‘new facility.’’ 

This submitted definition is 

approvable because it establishes the 

date of August 30, 1971 for when 

facilities that commence construction or 

modification must obtain 

preconstruction authorization. This 

submitted definition is independent of 

and severable from the other submitted 

definitions. We are proposing to 

approve this submitted definition as 

meeting the Federal requirements. 

B. Which Submitted General Definitions 

Do Not Meet the NSR SIP Requirements? 

30 TAC 116.10(3)—‘‘BACT.’’ 

The submittals include a new 

regulatory definition for ‘‘BACT,’’ 

defining it as BACT with consideration 

given to the technical practicability and 

economical reasonableness of reducing 

or eliminating emissions. TCEQ revised 

its January 1972 permitting rules, then 

Regulation VI at rule 603.16, on July 27, 

1972, to add the requirement that a 

proposed new facility and proposed 

modification utilize 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). 

It is not clear whether EPA approved 

this State BACT requirement as part of 

the Texas NSR SIP on July 6, 1977 (42 

FR 34517) or August 13, 1982 (47 FR 

35193). Approval of the original 1972 

Texas SIP on May 31, 1972 (37 FR 

10896) included State SIP submittals of 

January 28, February 25, May 2, and 

May 3, 1972. Since the State revised its 

rules to add the BACT requirement after 

May 3, 1972, EPA could not have 

approved this Texas BACT requirement 

as part of the original 1972 SIP. 

EPA’s approval on July 6, 1977 

included action on the State SIP 

revision submittals of 1973, 1974, 1975, 

and 1977 revisions to Section X: The 

Permit System. The 1973 SIP revision 

submittal that included the 1973 revised 

Section X discussed the application 

forms and included copies of them. 

Revised Section X also describes the 

permit review process and states that 

the ‘‘review will answer the following 

questions.’’ The list of seven questions 

includes the following and tracks the 

State’s July 27, 1972 rules: 

A. Will the new facility or the 

modification comply with all Rules and 

Regulations and the intent of the TCAA? 

B. Will the new facility or the 

modification prevent the maintenance 

or attainment of the NAAQS? 

C. Will the new facility or the 

modification cause significant 

deterioration of existing ambient air 

quality in an area? 

D. Will the new facility or 

modifications have provisions for 

measuring the emission of significant air 

contaminants? 

E. Will the new facility or 

modification be located in accordance 

with proper land use planning? 

F. Will the new facility or 

modification utilize the best available 

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control technology with consideration 

to the technical practicability and 

economic reasonableness of reducing or 

eliminating the emissions resulting from 

the facility? 

G. Will the design criteria for the new 

facility or modification achieve the 

performance specified in the 

application? 

The 1982 SIP approval included 

action on Texas SIP revision submittals 

of May 9, 1975, October 13, 1978, April 

13, 1979, and July 20, 1981. These 

submittals included revisions to the July 

27, 1972 Regulation VI, as revised 

March 27, 1975, August 15, 1975, 

February 12, 1978, March 6, 1979, 

November 25, 1979, August 20, 1980, 

and April 16, 1981. The 1981 rules as 

submitted and approved by EPA in this 

1982 rulemaking recodified the minor 

NSR and NNSR SIP requirements from 

Regulation VI into a new Chapter 116. 

Regardless of which year, it is clear that 

the State BACT requirement was 

approved as part of the Texas NSR SIP, 

either in 1977 or 1982. 

The Federal definition for BACT for 

PSD 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 

SIP approval by EPA. 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 a minor NSR SIP 

requirement for minor NSR permits. 

As discussed earlier in section I.B of 

this preamble, in another Federal 

Register notice, EPA is proposing 

disapproval of the Texas NSR SIP 

submittals for PSD, NNSR for the 1997 

8-hour ozone NAAQS, NSR Reform, and 

a Standard Permit. One of the bases for 

proposed disapproval of the PSD SIP 

revision submittals is that Texas has 

removed from its state rules the Federal 

PSD definition of BACT. Those 

interested in this proposed action are 

encouraged to review and comment on 

it. 

While we continue to approve the 

inclusion of Texas’ minor NSR BACT 

requirement in the Texas SIP to 

establish emissions limitations or 

operational restrictions requirements for 

minor NSR permits, Texas must revise 

the submitted BACT definition at 30 

TAC 116.10(3) to clearly apply only in 

the minor NSR SIP and only for minor 

sources and minor modifications. 

30 TAC 116.10(11)(A) and 30 TAC 

116.10(11)(B)—Insignificant increases 

are not a modification requiring a 

permit. 

The submittals include a new 

regulatory definition for ‘‘Modification 

of existing facility’’ in which 

insignificant increases of emissions are 

not modifications requiring a permit. 

Pursuant to the TCAA of 1971, Texas 

was required to establish a NSR 

program. The TCAA required that any 

person intending to construct a new 

facility or modify a facility that may 

emit air contaminants first apply for an 

air quality permit, which must be 

granted before that person could begin 

construction or make any changes. On 

the other hand, the TCAA allowed 

Texas to ‘‘exempt’’ certain facilities or 

types of facilities from the permitting 

requirements if it found that the 

facilities or types of facilities ‘‘would 

not make a significant contribution of 

air contaminants to the atmosphere.’’ 

The 1971 TCAA, however, did not 

authorize Texas to set a threshold in its 

NSR program below which no 

preconstruction authorization was 

required. The TCAA required Texas to 

regulate all new emissions. To 

complicate matters further, the statutory 

definition for what was a modification 

of an existing facility excluded 

‘‘insignificant increases’’ of emissions. 

To reconcile the statutory provision 

requiring regulation of new emissions, 

the statutory provision requiring 

permits for construction and 

modifications causing new emissions, 

the statutory definition excluding new 

(insignificant) emissions from obtaining 

a permit to construct or modify, and yet 

implement the exemption from 

permitting authority, Texas adopted 

rules that allowed it to make 

determinations whether construction of, 

or modification to, a facility or type of 

facilities, would make a significant 

contribution of emissions. If the Agency 

determined that the emissions from 

construction of, or modification to, a 

facility or type would be insignificant, 

i.e., not significant (contribution), it 

issued an exemption for a facility or a 

type of facilities. These ‘‘exempted’’ 

facilities or types of facilities were 

‘‘insignificant’’ sources of emissions. 

EPA approved into the Texas SIP on 

May 31, 1972 (37 FR 10896) the TCAA 

provisions described above, particularly 

the TCAA provision that excluded the 

increase of ‘‘insignificant emissions’’ 

from being a modification, and the 

regulations in Rules 606 and 607 (EPA 

later approved their recodification into 

Chapter 116, and they now are codified 

in the Texas SIP at 30 TAC Chapter 

106), allowing the State to issue socalled ‘‘exemptions’’ and to maintain a 

List of the Exemptions. Consequently, 

any exemption issued by Texas 

automatically became part of the Texas 

SIP. Any new facility or modification 

was subject to federal enforcement 

action if it failed to have an exemption 

before it began to construct or make any 

changes. It was subject to federal 

enforcement if it violated the terms and 

conditions of any applicable 

exemption(s). 

Although not approved as part of the 

Texas SIP, Texas in 1985 adopted 

through rulemaking the SIP Exemptions 

contained in the SIP List of Standard 

Exemptions, and adopted general 

requirements for the issuance of 

Exemptions. As part of this 1985 State 

rulemaking, the State added emission 

limitations for the first time defining by 

Texas regulation the minimum level of 

emissions above which there would be 

a ‘‘significant contribution’’ requiring a 

NSR permit rather than an Exemption. 

Moreover, under the State’s rules, no 

proposed new facility or modification 

under any Exemption could be a major 

source or major modification subject to 

NNSR and PSD. Later the State moved 

these Exemption State rules of general 

requirements and the State-codified 

Exemptions from Chapter 116 to a new 

Chapter 106, entitled Exemptions. In 

early 2000, the State renamed Chapter 

106 to Permits by Rule, because the 

TCAA was revised in 1999 to allow the 

State to establish standard permits for 

similar facilities and to adopt permits by 

rule or exempt sources by rule if it 

determines the increased emissions will 

not make a significant contribution of 

air contaminants to the atmosphere. 

EPA approved the general requirements 

for Permits by Rule in Subchapter A of 

Chapter 106 on November 14, 2003 (68 

FR 64543), as meeting the NSR 

requirements for a minor NSR SIP 

program. EPA recognized that each 

State-codified Permit by Rule in the 

remaining Subchapters of Chapter 106 

was already part of the SIP since each 

was an Exemption previously issued by 

the State under the SIP Exemption 

requirements. See page 64545. 

The following provisions of the TCAA 

are not part of the Texas SIP and Texas 

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14 In a SIP revision submitted February 1, 2006, 

the provisions on Subchapter C were redesignated 

to a new Subchapter E. EPA intends to take action 

on the new Subchapter E later in a separate action. 

has not submitted them for approval by 

EPA into the SIP. Under section 

382.05196 of the TCAA enacted in 1999, 

the Commission may not adopt a Permit 

by Rule authorizing any facility defined 

as a ‘‘major facility’’ under any 

applicable preconstruction permitting 

requirements of the Federal CAA or 

regulations adopted under that Act. 

Under section 382.057 of the TCAA, the 

Commission may not adopt any 

Exemption by Rule or Standard Permit 

for any modification of an existing 

facility defined as a ‘‘major 

modification’’ under any applicable 

preconstruction permitting 

requirements of the Federal CAA or 

regulations adopted under that Act. 

The TCAA seems to be clear that a 

Permit by Rule, Standard Permit, or an 

Exemption by Rule cannot be used for 

a major source or major modification. 

EPA is aware that in the past the State 

has reasonably interpreted and applied 

the SIP term ‘‘insignificant’’ for allowing 

only minor modifications and minor 

sources. Because of the history of the 

two agencies’ interpretations, ordinarily 

the State’s submittal of its relevant 1999 

statutory provisions for approval into 

the SIP would prove sufficient to 

support that modifications under the 

submitted 30 TAC 116.10(11)(A) and (B) 

would apply only to minor 

modifications and minor sources. There 

is information; however, e.g., the State’s 

adoption of a Permit by Rule for Startup, 

Shutdown, and Maintenance Emissions 

that belies the EPA being able to rely 

upon such a submittal of the relevant 

statutory provisions. This type of Permit 

by Rule cannot be construed to apply 

only to minor modifications and 

construction of minor sources. A 

submittal by the State of the applicable 

statutory sections for EPA to approve as 

part of the Texas SIP no longer seems 

sufficient in view of the issuance of this 

particular Permit by Rule. 

There is another ground for proposing 

disapproval of the two portions of the 

submitted definition ‘‘modification of 

existing facility.’’ The public, the 

regulated community, and governmental 

agencies consistently over the years 

have not had a clear and common 

understanding of the term, 

‘‘insignificant’’ and its inter-relationship 

with the SIP rules for Standard Permits 

and Permits by Rule, in which 

‘‘insignificant increases’’ are delineated. 

Very few people even are aware of the 

history of the TCAA, the State’s 

interpretation and implementation of 

the TCAA over more than three decades, 

EPA’s history of the Texas SIP approvals 

over more than three decades, and 

EPA’s legal interpretations over three 

decades of the State’s implementing 

regulations. If the public, the regulated 

community, and governmental agencies 

do not share, a clear and common 

understanding of the term, 

‘‘insignificant,’’ the submittals will not 

perform according to what we believe is 

the original intent. 

With the State’s issuance of the 

Startup, Shutdown, and Maintenance 

Permit by Rule that is not clearly 

limited to minor modifications and the 

continued expressions by the public, 

regulated entities, and government 

entities on the lack of clarity in the 

submittals’ language of (A) and (B), EPA 

is proposing to disapprove the 

submittals for 30 TAC 116.10(11)(A) and 

(B) because they are vague and 

unenforceable. 

30 TAC 116.10(11)(G). 

The submittals provide that changes 

at certain natural gas processing, 

treating, or compression facilities are 

not modifications if the change does not 

result in an annual emissions rate of any 

air contaminant in excess of the volume 

emitted at the maximum design capacity 

for grandfathered facilities. The ‘‘annual 

emissions rate’’ is the same as the 

‘‘volume emitted at the maximum 

design capacity’’; therefore, this would 

provide an exemption for these sources 

from permit review for any emission 

increases at these facilities. 40 CFR 

51.160(e) allows States to identify 

facilities which will be subject to review 

under their minor NSR program and 

requires the minor NSR SIP to discuss 

the basis for determining which 

facilities will be subject to review. 

The submittals, however, do not 

contain an applicability statement or 

regulatory provision limiting this type 

of change to minor NSR. There is no 

explanation of the reason for exempting 

this type of change from the permitting 

SIP requirements. Without the submittal 

by the State of an analysis describing 

how this exemption does not negate the 

major NSR SIP requirements and meets 

the minor NSR SIP requirements in 40 

CFR 51.160 and the Act’s antibacksliding requirements in section 

110(l), EPA proposes to disapprove this 

submitted definition. 

C. What Is the Administrative 

Correction Related to the Submitted 

General Definition of ‘‘Facility?’’ 

This definition was initially 

submitted March 13, 1996, and 

revisions submitted July 22, 1998. On 

September 6, 2006 (71 FR 52698), EPA 

approved the definition of ‘‘Facility,’’ as 

codified at 30 TAC 116.10(4) in the July 

22, 1998, submittal. In a SIP revision 

submitted September 4, 2002, Texas 

revised 30 TAC 116.10 to add two new 

definitions and to renumber several 

existing definitions to accommodate the 

new definitions. In that revision, the 

definition of ‘‘facility’’ was renumbered 

from 30 TAC 116.10(4) to 30 TAC 

116.10(6). On August 28, 2007 (72 FR 

49198), EPA approved portions of the 

revisions to 30 TAC 116.10 to add the 

two new definitions and to approve the 

renumbering of the previously approved 

definitions. However, EPA’s August 28, 

2007, approval included a typographical 

error that identified 30 TAC 116.10(6) 

‘‘facility’’ as not being in the SIP. The 

definition of ‘‘facility’’ is severable from 

the other submitted definitions. 

Accordingly, in this action, EPA 

proposes to correct the typographical 

error in 72 FR 49198 to clarify that the 

definition of ‘‘facility’’ as codified at 30 

TAC 116.10(6) was approved as part of 

the Texas SIP in 2006 and remains part 

of the Texas SIP. 

D. Why Are We Not Taking Any Action 

on the Severable Submitted Portion of 

the Definition of Federally Enforceable? 

30 TAC 116.10(7)(F)—‘‘federally 

enforceable.’’ 

The submitted paragraph (F) in the 

definition of ‘‘federally enforceable’’ 

identifies as federally enforceable 

requirements, any permit requirements 

established under Subchapter C14 of 

Chapter 116. This paragraph 

implements the CAA section 112(g) 

program. This program is implemented 

separately from the SIP and is outside 

the scope of the SIP; therefore, we are 

proposing to take no action. See 67 FR 

58699–58700 (September 18, 2002) for 

further information on why we are 

proposing no action on this provision. 

Paragraphs (A) through (E) in the 

definition of ‘‘federally enforceable’’ 

remain part of the Texas SIP, as codified 

at 30 TAC 116.10(7). EPA approved 

them on September 18, 2002 (67 FR 

58697). 

VIII. Why is EPA Proposing To Take No 

Action on a Severable Submitted 

Provision? 

This submitted added provision to 30 

TAC 116.116(f) is not in the SIP and it 

addresses the use of discrete emission 

reduction credits. It includes a crossreference to a State rule that no longer 

exists. Moreover, both the State and the 

Texas SIP contain the Emissions 

Trading and Banking rules in 

Subchapter H of Chapter 116. To date, 

Texas has not submitted a SIP revision 

revising this cross-reference 

appropriately. EPA proposes to take no 

action today on the submitted 30 TAC 

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48466 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

116.116(f) and intends to take action 

later in a separate action. 

IX. Proposed Action 

EPA is proposing disapproval of 

revisions to the SIP submitted by the 

State of Texas that relate to the 

Modification of Qualified Facilities, 

identified in the Tables in Section III of 

this preamble. These affected provisions 

include regulatory provisions and 

definitions and a severable portion of 

the definition at (E) ‘‘modification of 

existing facility,’’ under Texas’ General 

Definitions in Chapter 116, Control of 

Air Pollution by Permits for New 

Construction or Modification. EPA is 

proposing to find that these submitted 

provisions and definitions in the 

submittals affecting the Texas Qualified 

Facilities State Program are not 

severable from each other. 

EPA is proposing disapproval of the 

submitted Texas Qualified Facilities 

State Program, as a substitute major NSR 

SIP revision, because it does not meet 

the Act and EPA’s regulations. We also 

are proposing disapproval of the 

submitted Qualified Facilities Texas 

State Program as a minor NSR SIP 

revision because it does not meet the 

Act and EPA’s regulations. 

EPA also proposes to take action on 

revisions to the SIP submitted by Texas 

that relate to the General Definitions in 

Chapter 116. EPA proposes to approve 

three of these severable submitted 

definitions, ‘‘grandfathered facility,’’ 

‘‘maximum allowable emissions rate 

table (MAERT),’’ and ‘‘new facility.’’ We 

propose to disapprove the severable 

submitted definition, ‘‘best available 

control technology (BACT)’’ and to 

disapprove two severable portions, 

subparagraphs (A) and (B), in the 

submitted definition of ‘‘modification of 

existing facility,’’ and the severable 

portion subparagraph (G) in the 

submitted definition of ‘‘modification of 

existing facility.’’ The subparagraphs (A) 

and (B) are not severable from each 

other. EPA proposes to make an 

administrative correction to the 

severable submittal for the SIP-approved 

definition of ‘‘facility.’’ EPA proposes to 

take no action on the severable 

submitted subparagraph (F) for the SIPapproved severable definition of 

‘‘federally enforceable’’ because the 

submitted paragraph relates to a Federal 

program that is implemented separately 

from the SIP. In addition, EPA is 

proposing to take no action on the 

severable submitted portion of a 

provision that includes, among other 

things, a trading provision containing a 

cross-reference that no longer is in 

Texas’ rules; EPA will act upon it later 

in a separate notice. 

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 will 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, currently under public 

comment (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). 

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-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. 

E. Executive Order 13132, Federalism 

Executive Order 13132, entitled 

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

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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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