55978 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

http://www.epa.gov/otaq/ 

stateresources/transconf/currsips.htm. 

SUPPLEMENTARY INFORMATION: This 

notice is simply an announcement of a 

finding that EPA has already made. 

EPA, Region 4, sent a letter to TDEC on 

July 20, 2010, stating that the MVEBs 

identified for Knoxville in Tennessee’s 

maintenance SIP revision, submitted on 

July 14, 2010, are adequate and must be 

used for transportation conformity 

determinations in the Knoxville Area. 

Originally, on June 11, 2010, TDEC 

submitted its maintenance plan for 

parallel processing which allowed EPA 

to initiate our public comment period 

for adequacy of the MVEBs contained in 

Tennessee’s maintenance plan. 

EPA posted the availability of the 

Knoxville Area MVEBs on EPA’s Web 

site on June 14, 2010, as part of the 

adequacy process, for the purpose of 

soliciting comments. The adequacy 

comment period ran from June 15, 2010, 

through July 14, 2010. During EPA’s 

adequacy comment period, no 

comments were received on the 

Knoxville Area MVEBs. Through this 

notice, EPA is informing the public that 

these MVEBs are adequate for 

transportation conformity. This finding 

has also been announced on EPA’s 

conformity Web site: http:// 

www.epa.gov/otaq/stateresources/ 

transconf/pastsips.htm. The adequate 

MVEBs are provided in the following 

table: 

KNOXVILLE, TENNESSEE 8-HOUR

OZONE MVEBS

[Tons per day] 

2024 

NOX .................................. 36.32 

VOC .................................. 25.19 

Transportation conformity is required 

by section 176(c) of the Clean Air Act. 

EPA’s conformity rule, 40 CFR Part 93, 

requires that transportation plans, 

programs and projects conform to state 

air quality implementation plans and 

establishes the criteria and procedures 

for determining whether or not they do 

so. Conformity to a SIP means that 

transportation activities will not 

produce new air quality violations, 

worsen existing violations, or delay 

timely attainment of the NAAQS. 

The criteria by which EPA determines 

whether a SIP’s MVEBs are adequate for 

transportation conformity purposes are 

outlined in 40 CFR 93.118(e)(4). We 

have also described the process for 

determining the adequacy of submitted 

SIP budgets in our July 1, 2004, final 

rulemaking entitled, ‘‘Transportation 

Conformity Rule Amendments for the 

New 8-Hour Ozone and PM2.5 National 

Ambient Air Quality Standards and 

Miscellaneous Revisions for Existing 

Areas; Transportation Conformity Rule 

Amendments: Response to Court 

Decision and Additional Rule Changes’’ 

(69 FR 40004). Please note that an 

adequacy review is separate from EPA’s 

completeness review, and it should not 

be used to prejudge EPA’s ultimate 

approval of Tennessee’s 1997 8-hour 

ozone SIP revision for the Knoxville 

Area. Even if EPA finds a budget 

adequate, the SIP revision could later be 

disapproved. 

Within 24 months from the effective 

date of this notice, the transportation 

partners will need to demonstrate 

conformity to the new MVEBs, if the 

demonstration has not already been 

made, pursuant to 40 CFR 93.104(e). See 

73 FR 4419 (January 24, 2008). 

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

Dated: September 3, 2010. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2010–22973 Filed 9–14–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2010–0620; FRL–9199–8] 

Approval and Promulgation of Air 

Quality Implementation Plans; Texas; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Prevention of Significant Deterioration 

(PSD) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action approving revisions to the Texas 

PSD State Implementation Plan (SIP). 

EPA is approving a SIP revision 

submitted February 1, 2006, as amended 

by a SIP revision submitted July 16, 

2010. This action makes no substantive 

changes to the Texas PSD SIP; it merely 

approves reorganization and 

renumbering of the Texas PSD SIP rules. 

Further, the July 16, 2010 submission 

corrects certain deficiencies identified 

in EPA’s September 23, 2009 proposed 

disapproval. The EPA is approving 

these revisions pursuant to section 110 

and part C of the Federal Clean Air Act 

(Act or CAA). 

DATES: This direct final rule will be 

effective on November 15, 2010 without 

further notice, unless EPA receives 

relevant adverse comments by October 

15, 2010. If EPA receives such 

comments, EPA will publish a timely 

withdrawal of the direct final rule in the 

Federal Register informing the public 

that this rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2010–0620, 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. Please also cc 

the person listed in the FOR FURTHER

INFORMATION CONTACT section below. 

• 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 a.m. and 4 p.m. weekdays 

except for legal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2010– 

0620. 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 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 55979 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

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

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

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

(214) 665–7253 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 submittal is also available 

for public inspection at the State Air 

Agency listed below 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 wherever 

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

EPA. 

Outline 

I. What action is EPA taking? 

II. What did the State submit? 

III. What is the background for this action? 

IV. What comments did EPA receive on the 

proposed disapproval of the 2006 SIP 

revision submittal? 

V. What are the grounds for approval? 

VI. Final Action 

VII. Statutory and Executive Order Reviews 

I. What action is EPA taking? 

EPA is approving the revisions to the 

Texas SIP PSD Program (Program) that 

amend Title 30 of the Texas 

Administrative Code (30 TAC) 

116.160—Prevention of Significant 

Deterioration Requirements. This 

includes SIP revisions to the Program as 

follows: The revision which relates to 

the PSD Program that Texas submitted 

February 1, 2006 (as adopted by the 

Texas Commission on Environmental 

Quality (TCEQ) on January 11, 2006), 

and a revision submitted July 16, 2010 

(as adopted by TCEQ on June 2, 2010) 

that amends the 2006 submittal. We are 

approving these revisions as meeting the 

Major NSR PSD SIP requirements. 

Specifically, we are approving the 

nonsubstantive reorganizing and 

renumbering of 30 TAC 116.160 as 

submitted in 2006 and as revised in 

2010. Our final action ensures that the 

Texas PSD SIP remains the same in 

substance with improvement in clarity. 

II. What did the State submit? 

On September 23, 2009, EPA 

proposed to disapprove the SIP 

revisions submittals relating to 

Prevention of Significant Deterioration 

(PSD); Nonattainment NSR (NNSR) for 

the 1-Hour Ozone Standard, NNSR for 

the 1997 8-Hour Ozone Standard, NSR 

Reform, and a Standard Permit (under 

Docket No. EPA–R06–OAR–2006–0133). 

See the proposal at 74 FR 48467, at 

48472. We proposed to disapprove the 

submitted PSD revisions in 30 TAC 

116.160 because: 

• This 2006 SIP revision submittal 

removed from the State rules the 

incorporation by reference of the 

Federal PSD definition of ‘‘best available 

control technology (BACT)’’ as defined 

in 40 CFR 51.166(b)(12). The currently 

approved PSD SIP includes the Federal 

definition of PSD BACT. See 30 TAC 

116.160(a); and 

• The 2006 SIP submittal also 

removed from the State rules, the PSD 

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

that the State previously had 

incorporated by reference. The currently 

approved PSD SIP mandates this 

requirement. See 30 TAC 116.160(a). 

This provision specifies that if a project 

becomes a major stationary source or 

major modification solely because of a 

relaxation of an enforceable limitation 

on the source or modification’s capacity 

to emit a pollutant, then the source or 

modification is subject to PSD as if 

construction had not yet commenced. 

The State’s action in eliminating that 

requirement means the State’s rules will 

not regulate these types of major 

stationary sources or modifications as 

stringently as the Federal program or the 

current approved Texas PSD SIP. 

The 2006 SIP revision submittal 

included a nonsubstantive reorganizing, 

and renumbering of the State’s PSD 

rules but for the removal of the two 

requirements described above. The 

reorganization and renumbering of 30 

TAC 116.160 (submitted in 2006) 

includes the following: 

• A revision to 30 TAC 116.160(a); 

• Deletion of the existing 30 TAC 

116.160(b); 

• Addition of a new 30 TAC 

116.160(b); 

• Deletion of the existing 30 TAC 

116.160(c), including the removal of the 

two definitions of ‘‘building, structure, 

facility, or installation’’ and ‘‘secondary 

emissions’’ from 30 TAC 116.160(c), 

which had duplicated the definitions of 

those terms as currently defined in the 

SIP at 30 TAC 116.12(4) and (17), 

respectively; 

• Portions of the existing 30 TAC 

116.160(a) and (b) were reorganized into 

a new and revised 30 TAC 116.160(c)(1), 

(2), and (3); 

• Moving the existing 30 TAC 

116.160(d) into a new 30 TAC 

116.160(c)(4); and 

• Finally, moving the existing 30 TAC 

116.160(e) into new 30 TAC 116.160(d). 

EPA finds that these submitted 

changes are nonsubstantive and 

continue to meet the Act and EPA’s PSD 

SIP regulations, with the exception of 

the removal of the incorporation of the 

PSD BACT definition in 40 CFR 

52.21(b)(12) and the removal of the 

incorporation of the provisions in 40 

CFR 52.21(r)(4) PSD SIP requirement. 

On July 16, 2010, TCEQ submitted 

revisions to 30 TAC 116.160. These 

revisions revised the State’s rules as 

follows: 

• Incorporated by reference the 

federal PSD BACT definition in 40 CFR 

52.21(b)(12). See 30 TAC 

116.160(c)(1)(A). This corrects a 

deficiency identified in the 2009 

proposal. 

• Incorporated by reference the 

requirements of 40 CFR 52.21(r)(4). See 

30 TAC 116.160(c)(2)(A). This corrects a 

deficiency identified in the 2009 

proposal. 

• Incorporated by reference the 

requirements of 40 CFR 52.21(j)— 

Control technology review. See 30 TAC 

116.160(c)(2)(C). This provision 

identifies the circumstances under 

which PSD BACT must be required for 

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55980 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

1The January 1972 Texas NSR rules, as revised 

in July 1972, require a proposed new facility or 

modification to utilize ‘‘best available control 

technology, with consideration to the technical 

practicability and economic reasonableness of 

reducing or eliminating the emissions resulting 

from the facility.’’ This definition of BACT is from 

the Texas Clean Air Act. When EPA approved the 

Texas PSD program SIP revision submittals, 

including the State’s incorporation by reference of 

the Federal definition of PSD BACT, in 1992, both 

EPA and Texas interpreted the use of the TCAA 

BACT definition to be for Minor NSR SIP 

permitting purposes only. EPA specifically found 

that the State’s TCAA BACT definition did not meet 

the Federal PSD BACT definition. We required the 

use of the Federal PSD BACT definition for PSD SIP 

permitting purposes. See the proposal and final 

approval of the Texas PSD SIP at 54 FR 52823 

(December 22, 1989) and 57 FR 28093 (June 24, 

1992). 

the construction of a major stationary 

source and a major modification that is 

subject to PSD. 

TCEQ adopted and submitted for the 

first time, incorporation by reference of 

the Federal PSD requirement at 40 CFR 

52.21(j) for approval by EPA into the 

Texas PSD SIP to ensure that it is clear 

that major stationary sources and major 

modifications in attainment/ 

unclassifiable designated areas must 

meet the PSD requirement by 

performing a PSD BACT analysis. The 

Texas NSR SIP includes not only the 

federal PSD BACT definition but also a 

requirement for a source to perform a 

State BACT analysis. See 30 TAC 

116.111(a)(2)(C). EPA relied upon this 

SIP provision in its 1992 original 

approval of the Texas PSD SIP as 

meeting the PSD requirement of 40 CFR 

52.21(j). See 54 FR 52823, at 52824– 

52825, and 57 FR 28093, at 28096– 

28096. Both Texas and EPA interpreted 

this SIP provision to require either a 

Minor NSR BACT determination or a 

Major PSD BACT determination. Since 

EPA’s approval of the Texas PSD SIP in 

1992, there has been some confusion 

about the distinction between a State 

Minor NSR BACT definition and a PSD 

Major NSR BACT definition and the 

requirement that a source must perform 

the relevant PSD BACT analysis.1

TCEQ’s July 2010 submittal’s inclusion 

of the PSD requirement of 40 CFR 

52.21(j) is aimed at clarifying the Texas 

PSD SIP in this respect. 

Based upon our review, we find that 

the 2010 SIP revision submittal corrects 

the deficiencies identified in the 

September 2009 proposed disapproval 

concerning the 2006 SIP revision 

submittal. Consequently, because Texas 

has corrected the deficiencies, we are 

now approving the PSD Program 

revisions submitted February 1, 2006 

and as amended July 16, 2010. Our final 

action ensures that the substance of the 

Texas PSD SIP continues to remain the 

same and approval of the two SIP 

revision submittals improves the clarity 

of the Texas PSD SIP. See sections III 

through V of this preamble, the proposal 

FRN, and the technical support 

document (TSD) for further information 

on the basis for approving this 

submitted Texas PSD Program. 

Therefore, EPA is approving the 

amendments to 30 TAC 116.160, as 

submitted on February 1, 2006 and as 

amended on July 16, 2010. 

III. What is the background for this 

Action? 

Tables 1 and 2 below summarize the 

changes that are in the two SIP revision 

submittals. A summary of EPA’s 

evaluation of each section and the basis 

for this direct final action is discussed 

in sections IV and V of this preamble. 

The TSD includes a detailed evaluation 

of the submittals. 

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

Title of SIP submittal Date submitted to EPA 

Date of state 

adoption Regulations affected 

Federal New Source Review Permit 

Rules Reform.

2/1/2006 1/11/2006 30 TAC 116.160—Prevention of Significant Deterioration Requirements. 

• The Rule was changed to reorganize existing SIP-approved rule. 

• This change resulted in removal of cross-references to 40 CFR 

52.21(b)(12) and 52.21(r)(4) which are critical to administration 

and enforcement of PSD requirements. 

• The change included the removal of definitions of ‘‘building, 

structure, facility, on installation’’ and ‘‘secondary emissions’’ in 

30 TAC 116.160(c)(1)–(2), respectively. The removal of these 

definitions is nonsubstantive because these terms are currently 

defined with the same definitions in the Texas SIP at 30 TAC 

116.12(4) and (17), respectively. 

Best Available Control Technology 

(BACT) in Prevention of Significant Deterioration (PSD) Permitting.

7/16/2010 6/2/2010 30 TAC 116.160—Prevention of Significant Deterioration Requirements. 

• Re-instatement of cross-references to 40 CFR 52.21(b)(12) and 

52.21(r)(4). 

• Added cross-reference to 40 CFR 52.21(j)—Control technology 

review. 

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

Section Title Date 

submitted 

Date of state 

adoption Comments 

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

Subchapter B—New Source Review Permits 

Division 6—Prevention of Significant Deterioration Review 

Section 116.160 .... Prevention of Significant Deterioration Requirements.2/1/2006 1/11/2006 • Rule changed to reorganize existing SIP-approved 

rule. 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 55981 

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

Section Title Date 

submitted 

Date of state 

adoption Comments 

• This change resulted in removal of cross-references to 

40 CFR 52.21(b)(12) and 52.21(r)(4) which are critical 

to administration and enforcement of PSD requirements. 

7/16/2010 6/2/2010 • Re-instatement of cross-references to 40 CFR 

52.21(b)(12) and 52.21(r)(4). 

• Added cross-reference to 40 CFR 52.21(j)—Control 

technology review. 

IV. What comments did EPA receive on 

the proposed disapproval of the 2006 

SIP revisions submittal? 

In response to our September 23, 

2009, proposed disapproval of the 

submitted revisions to Texas’ PSD 

Program, we received comments from 

the following: Baker Botts, L.L.P., on 

behalf of BCCA Appeal Group (BCCA); 

Baker Botts, L.L.P., on behalf of Texas 

Industrial Project (TIP); Bracewell & 

Guiliani, L.L.P., on behalf of the Electric 

Reliability Coordinating Council 

(ERCC); Gulf Coast Lignite Coalition 

(GCLC); Texas Chemical Council (TCC); 

Texas Commission on Environmental 

Quality (TCEQ); Members of the Texas 

House of Representatives; University of 

Texas at Austin School of Law— 

Environmental Clinic (the Clinic) on 

behalf of: Environmental Integrity 

Project, Environmental Defense Fund, 

Galveston-Houston Association for 

Smog Prevention, Public Citizen, 

Citizens for Environmental Justice, 

Sierra Club Lone Star Chapter, 

Community-In-Power and Development 

Association, KIDS for Clean Air, Clean 

Air Institute of Texas, Sustainable 

Energy and Economic Development 

Coalition, Robertson County: Our Land, 

Our Lives, Texas Protecting Our Land, 

Water and Environment, Citizens for a 

Clean Environment, Multi-County 

Coalition, and Citizens Opposing Power 

Plants for Clean Air. 

Below is a summary of the comments 

and our responses. 

Comment 1: TCEQ commented on the 

lack of a specific definition of PSD 

BACT and the absence of a requirement 

contained in 40 CFR 52.21(r)(4). TCEQ 

noted that although these references are 

currently missing from 30 TAC 116.160, 

its permitting actions are implemented 

in a manner that does not circumvent 

Federal New Source Review (FNSR) 

requirements and does not allow a 

control technology review to be 

conducted that results in a technology 

that is less than PSD BACT as defined 

in the federal rule. TCEQ agrees that if 

a project becomes a major source or 

major modification through the 

relaxation of an enforceable limitation, 

PSD review is required, and TCEQ 

complies with that requirement in its 

permitting actions. The missing 

references are oversights, and TCEQ 

agreed to adopt revisions to 30 TAC 

116.160 to include these provisions. 

Response: EPA acknowledges TCEQ’s 

description of how it implements the 

submitted Program. However, our 

evaluation considers whether a 

submitted SIP revision that removes a 

statutory requirement can still meet the 

requirements of the Act. In the proposal, 

EPA explained that the removal of a 

statutory requirement from a State’s 

program renders a SIP revision 

unapprovable because the removal does 

not meet the requirements of the Act. 

PSD BACT is not only a defined 

statutory and regulatory term; it is also 

a central requirement of the Act. 

Accordingly, a state’s submission of a 

revision that removes the requirement 

that all new major stationary sources or 

major modifications install, at a 

minimum, PSD BACT as defined by the 

Act creates a situation where the 

submitted SIP revision violates the Act 

and also would be a relaxation of the 

requirements of the SIP. In the July 16, 

2010, SIP submittal, TCEQ revised 30 

TAC 116.160 to incorporate into its PSD 

Program the federal PSD BACT 

definition in 40 CFR 52.21(b)(12) and 

the requirement contained in 40 CFR 

52.21(r)(4). Based upon our evaluation 

of the July 2010, SIP revision, we 

conclude that Texas has corrected the 

deficiencies identified in the proposal. 

Comment 2: The Clinic supported 

EPA’s proposed positions. The Clinic 

further comments that instead of 

implementing the top-down approach 

consistent with EPA’s PSD guidance, 

TCEQ uses its ‘‘three-tier’’ guidance, a 

process that does not always require a 

detailed analysis of the most effective 

emission control alternatives and is less 

stringent than the top-down procedure. 

The Clinic maintains that Texas’s 

definition and implementation of BACT 

are insufficient. This results in Texas 

implementing BACT such that it fails to 

fulfill the technology forcing intent of 

the Act and results in weaker emission 

limitations—and thus more pollution. 

EPA must take immediate action to 

ensure that Texas is properly 

implementing the federal SIP-approved 

definition of BACT, including rejection 

of Texas’s use of its current BACT 

guidance. 

Response: In the July 16, 2010, SIP 

submittal TCEQ revised 30 TAC 116.160 

to incorporate into its PSD Program the 

federal PSD BACT definition in 40 CFR 

52.21(b)(12). See 30 TAC 

116.160(c)(1)(A), submitted July 16, 

2010. By re-instating the federal 

definition of PSD BACT into the State’s 

rules, the PSD Program now meets 

EPA’s PSD SIP requirements and is 

consistent with the approved Texas PSD 

SIP. This final rulemaking only 

addresses the approvability of the Texas 

PSD SIP revision submittals. Therefore, 

those comments related to other EPA 

actions and the State’s implementation 

of the PSD SIP are outside the scope of 

this rulemaking action. 

Comment 3: Members of the Texas 

House of Representatives commented 

that Texas is applying a definition of 

BACT, and using a BACT determination 

process that is significantly less 

stringent than required by federal law. 

Consequently, Texas industrial facilities 

emit more pollution than similar 

facilities in other states. They further 

comment that use of federal BACT alone 

will not be sufficient for the State to 

achieve and maintain attainment of the 

NAAQS and protect the health and 

welfare of facilities downwind of these 

new sources. They recommend that EPA 

adopt procedures necessary to ensure 

that TCEQ has explicit authority and 

direction to analyze individual and 

cumulative effects of emissions from 

proposed significant point sources on 

regional ozone levels when considering 

a permit application. Analysis of ozone 

effects should include photochemical 

modeling of impacts to downwind areas 

under typical high ozone conditions. 

Response: The comments that (1) the 

use of federal PSD BACT alone will not 

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2 Id. at 1159. 

3 Id. at 1160. 

4 In a separate action published in today’s Federal 

Register, EPA is disapproving the submitted 

regulatory definition for BACT (derived from the 

TCAA) in 30 TAC 116.10(3) because it is not clear 

that this BACT applies only for Minor NSR. See that 

notice for further information. We wish to note that 

TCEQ has proposed revisions to the definition to 

clarify its use is only for Minor NSR but has not 

submitted it yet to EPA for action as a SIP revision. 

be sufficient for the State to achieve and 

maintain attainment of the NAAQS and 

protect the health and welfare of 

facilities downwind of these new 

sources, and (2) the suggestion that EPA 

conduct a rulemaking, are outside the 

scope of this rulemaking action. The 

issue of how TCEQ implements the 

Texas PSD SIP to make its PSD BACT 

determinations is not the subject of this 

rulemaking action and therefore outside 

the scope of this action. Based upon 

TCEQ’s July 2010 SIP revision, which 

re-instates into the TCEQ rules the 

federal PSD BACT definition, its PSD 

BACT definition is EPA’s PSD BACT 

definition. 

Comment 4: BCCA, TIP, ERCC, GCLC 

and TCC commented that Texas 

submitted a revision to 30 TAC 

116.160(a) and a new section 

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

2006, as a SIP revision to the Texas PSD 

SIP. This SIP revision reorganized the 

earlier SIP-approved rules. These 

commenters refer to TCEQ’s plans to 

address this matter in rulemaking that 

should resolve EPA concerns regarding 

the Texas PSD program. See also Hall v. 

United States EPA, 273 F.3d 1146, 1160 

(9th Cir. 2001) stating that EPA must 

consider anticipated revisions in 

determining whether the State will 

achieve attainment. 

Response: EPA reviews a SIP revision 

submission for its compliance with the 

Act and EPA regulations. CAA 

110(k)(3). See also BCCA Appeal Group 

v. EPA, 355 F 3d. 817, 822 (5th Cir. 

2003); Natural Resources Defense 

Council, Inc. v. Browner, 57 F.3d 1122, 

1123 (D.C. Cir. 1995). This includes an 

analysis of the submitted regulations for 

their legal interpretation. The Court of 

Appeals, in Hall v. United States EPA, 

stated that ‘‘the objective of EPA’s 

analysis is to determine whether the 

ultimate effect of a state’s choice of 

emission limitations is compliance with 

the NAAQS.’’ 2 The court did not require 

EPA to consider anticipated revisions 

when evaluating particular revisions. 

The court only required that EPA must 

be able to conclude the ‘‘particular plan 

revision before it is consistent with the 

development of an overall plan.’’ 3 At 

the time of EPA’s proposal, the 

anticipated revisions had not been 

submitted to EPA for approval as a SIP 

revision and therefore could not be 

considered. In this action, EPA has 

considered the subsequent revision to 

Texas’ PSD program submitted July 16, 

2010. Based upon our evaluation of the 

July 2010, SIP revision, we conclude 

that Texas has corrected the deficiencies 

identified in the proposal. 

Comment 5: BCCA and TIP 

commented that the term BACT has 

been defined by TCEQ in strict 

accordance with the statutory BACT 

requirement in the TCAA. Specifically, 

30 TAC 116.10(3) defines BACT as 

‘‘BACT with consideration given to the 

technical practicability and the 

economic reasonableness of reducing or 

eliminating emissions from the facility.’’ 

ERCC commented that Texas has an 

adequate and legally defensible 

definition of BACT, which is allowable 

under case law, EPA guidance, and 

rulings from the Environmental Appeals 

Board. Contrary to EPA’s statements in 

the proposed disapprovals, States have 

flexibility in their definition of BACT 

and implementation of BACT as long as 

the statutory factors in the BACT 

definition are present in the state’s 

analysis. The commenters commented 

that EPA has made no finding that 

Texas’ BACT definition is contrary to, or 

less stringent than, the Federal 

definition of BACT. Nonetheless, EPA is 

proposing the drastic action of 

disapproving the entire Texas PSD 

program. Such disapproval would also 

discard all the benefits of the 2002 NSR 

Reform Rules. They comment that EPA 

would place Texas permittees at a 

severe disadvantage to all other 

permittees throughout the country that 

have the benefit of the 2002 NSR 

reforms rules. GCLC commented that 

the Texas BACT assessment process is 

legally valid as it has been and 

continues to be in full compliance with 

FCAA requirements. Texas has a threetiered BACT approach that has been 

previously approved by the EPA. This 

policy, as demonstrated in the TCEQ 

guidance document ‘‘Evaluating Best 

Avail able Control Technology (BACT) 

in Air Permit Applications’’ outlines 

BACT policy in the state. Drafted in 

April 2001 it has been the primary 

guidance document for both permittees 

and protestant for BACT assessment. It 

predates the Texas February 2006 

submittal by almost five years and 

continues to be the primary guidance 

document regarding BACT after the 

submittals; BACT has been consistently 

applied by the TCEQ before and after 

the submitted changes to Chapter 116 of 

Title 30 of the TAC. 

Response: EPA disagrees with the 

commenters about the term PSD BACT, 

the flexibility a state has in its definition 

of PSD BACT and that EPA has not 

made a finding that Texas’ BACT 

definition is contrary or less stringent 

than the Federal definition of PSD 

BACT. As discussed in the September 

23, 2009, proposed disapproval of the 

submitted 2006 SIP revisions to 30 TAC 

116.160, EPA in its original approval of 

the Texas PSD SIP, specifically found 

that the BACT definition (derived from 

the TCAA) did not meet the federal PSD 

BACT definition. See 54 FR 52823 

(December 22, 1989) and 57 FR 28093 

(July 24, 1992). For proposed and final 

approval of the original Texas PSD SIP, 

Texas chose to incorporate by reference 

the Federal PSD BACT definition and 

submitted it for approval by EPA as part 

of the Texas PSD SIP. Upon EPA’s 

original approval of the Texas PSD SIP, 

both EPA and Texas interpreted the 

TCAA BACT definition as being the 

Minor NSR BACT definition for Minor 

NSR permits.4 See 74 FR 48467, at 

48472, footnote 4, and footnote 1 in this 

action. 

EPA’s review was in accordance with 

the requirements of the CAA. EPA is not 

required to base its proposed 

disapproval on any determination that 

(a) depended on the definition as 

applied, and (b) yielded a determination 

less strict than would result from 

application of the ‘‘federal definition.’’ 

Under EPA’s revised major NSR SIP 

regulations, as promulgated on 

December 31, 2002 (67 FR 80186) and 

reconsidered with minor changes on 

November 7, 2003 (68 FR 63021), 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. See 67 FR 80185, 

at 80241. Texas did not submit such a 

demonstration. Furthermore, in the July 

16, 2010, SIP revision submittal, TCEQ 

revised 30 TAC 116.160 to incorporate 

into its PSD Program the federal PSD 

BACT definition in 40 CFR 52.21(b)(12). 

Based upon our evaluation of the July 

2010, SIP revision, we conclude that 

Texas has corrected the deficiencies 

identified in the proposal. See response 

to comment 2 above for further 

information. 

Comment 6: GCLC commented that 

TCEQ’s three-tier approach to PSD 

BACT determinations meets the 

requirements of section 165 of the CAA, 

ensuring that facilities receiving PSD 

permits in the state are required to 

utilize PSD BACT. 

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5CAA § 165(a)(4): 42 U.S.C. 7475(a)(4). 

6CAA § 101(a)(3); 42 U.S.C. 7401(a)(3). 7 40 CFR 51.166(b). 

Response: The issue of how TCEQ 

implements the Texas PSD SIP to make 

its PSD BACT determinations is not the 

subject of this rulemaking action and 

therefore outside the scope of this 

action. The 2006 submitted revision, if 

approved, would have removed the PSD 

BACT definition (as defined by the Act) 

from the Texas PSD SIP. In the July 16, 

2010, SIP submittal, however, TCEQ 

revised 30 TAC 116.160 to incorporate 

into its PSD Program the federal PSD 

BACT definition in 40 CFR 52.21(b)(12). 

Based upon our evaluation of the July 

2010, SIP revision, we conclude that 

Texas has corrected the deficiencies 

identified in the proposal. 

Comment 7: BCCA, TIP, ERCC, and 

TCC commented that the Texas 

regulations have continuously carved 

out 40 CFR 52.21(j), concerning control 

technology review, which is the federal 

BACT requirement, from the Texas PSD 

regulations. This is true from 1992 when 

EPA first granted authority to Texas to 

administer PSD permitting. As part of 

the 1992 approval, EPA explained why 

the federal control technology review 

requirement of Section 52.21(j) could be 

properly excluded by Texas under the 

federal Clean Air Act. See 54 FR 52824– 

52825 (Dec. 22, 1989). EPA then stated 

in the final rule approving the Texas 

PSD program that the federal control 

technology review requirement, which 

requires BACT for PSD applications, 

was ‘‘not necessary for approval of the 

Texas Program.’’ See 57 FR 28093–28094 

(June 24, 1992). 

Response: The 2006 SIP revision 

submittal removed from the State rules 

the incorporation by reference of the 

Federal PSD definition of ‘‘best available 

control technology (BACT)’’ as defined 

in 52.21(b)(12). The currently approved 

Texas PSD SIP includes the Federal 

definition of BACT. See 30 TAC 

116.160(a). This submitted SIP revision 

violates the Act and relaxes the 

requirements of the current Texas SIP. 

In the July 16, 2010, SIP submittal, 

however, TCEQ revised 30 TAC 116.160 

to incorporate into its PSD Program the 

federal PSD BACT definition in 40 CFR 

52.21(b)(12). TCEQ also incorporated by 

reference 40 CFR 52.21(j). TCEQ 

recognized that over the years since 

EPA’s original approval of the Texas 

PSD SIP, there was confusion about the 

difference between the PSD BACT 

definition and the requirement to 

conduct a PSD BACT determination 

versus the State’s BACT definition and 

the requirement to conduct a Minor 

NSR BACT determination. Based upon 

our evaluation of the July 2010, SIP 

revision, we conclude that Texas has 

corrected the deficiencies identified in 

the proposal and in addition addressed 

a potential ambiguity. 

Comment 8: TCC commented that one 

can search the entire Texas Clean Air 

Act, which is the sole authority under 

which TCEQ can issue any permits, and 

find no mention of PSD at all; again, the 

governing law establishes the need for 

BACT for all permits, major or minor. 

And the governing statute does not 

define BACT beyond its own terms, 

leaving substantial degrees of freedom 

for TCEQ to compel the best available 

control technology. TCEQ’s 

implementing rules also do not further 

define BACT at all, either, other than to 

emphasize the need for giving 

‘‘consideration * * * to the technical 

practicability and the economic 

reasonableness of reducing or 

eliminating emissions from the facility.’’ 

Response: See responses to Comments 

5 and 7. 

Comment 9: TCC commented that 

Texas accomplishes the PSD reviews 

required by Part C of Subtitle I of the 

federal Clean Air Act by including 

various applicability provisions in its 

rules, but the only effect of ‘‘triggering’’ 

PSD review is to require an increment 

analysis (the ‘‘significant deterioration’’ 

review) for all preconstruction permits 

for PSD projects. Again, BACT reviews 

are universal, and do not depend on 

triggering PSD. (This is one of the great 

strengths of Texas’s permitting program, 

not a weakness). The nature of the 

BACT review doesn’t change depending 

on whether the application triggers PSD; 

TCEQ determines BACT using its 3- 

tiered process regardless of the size of 

project under review. 

Response: EPA disagrees. See 

response to Comment 5. Furthermore, 

the implementation by TCEQ of the PSD 

SIP is outside the scope of this 

rulemaking action. 

Comment 10: TCC commented that 

EPA may not condition approval of 

Texas’s permitting programs on 

adherence to specific definitions. SIP 

approval of a PSD program is 

conditioned on accomplishing some 

very general statutory objectives, as 

outlined in Section 165(a) of the federal 

Clean Air Act, including mechanisms to 

ensure that each proposed major source 

or modification is subject to the best 

available control technology.5 Congress 

expressly left the particulars to each 

state.6 Not even EPA’s rules describing 

its expectations for approvable SIPs 

mandate adoption of the exact 

definitions. Variations are allowed ‘‘if 

the State specifically demonstrates that 

the submitted definition is more 

stringent, or at least as stringent, in all 

respects’’ as those adopted by EPA.7

TCEQ of course has made that 

demonstration in its various SIP 

submittals over the years, but mostly by 

decades of actual BACT determinations 

made pursuant to its definition. EPA has 

not identified even one TCEQ BACT 

determination that yielded an 

inadequate result because of the 

different definitions. In fact, EPA has 

agreed that the TCEQ BACT review 

process is perfectly adequate. 

Response: EPA disagrees. See 

response to Comment 5. Furthermore, 

TCEQ’s implementation of the PSD SIP 

is outside the scope of this rulemaking 

action. 

Comment 11: ERCC commented that 

the proposed deficiencies fall far short 

of demonstrating an interference with 

achieving the national standard. 

Response: As noted previously, EPA 

must evaluate the submitted Program 

based upon the content of the 

regulations and associated record that 

have been submitted and are currently 

before EPA for appropriate approval or 

disapproval action. Furthermore, Texas, 

as 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. See 67 FR 

80185, at 80241. Moreover, EPA lacks 

sufficient information to determine 

whether the 2006 submittal would not 

interfere with NAAQS attainment and 

RFP. See response to comment 5 above 

for further information. However, in the 

July 16, 2010, SIP submittal, TCEQ 

revised 30 TAC 116.160 to incorporate 

into its PSD Program the federal PSD 

BACT definition in 40 CFR 52.21(b)(12), 

the requirements of 40 CFR 52.21(r)(4), 

and the requirements of 40 CFR 52.21(j). 

Based upon our evaluation of the July 

2010, SIP revision, we conclude that 

Texas has corrected the deficiencies 

identified in the proposal. See response 

to comment 2 above for further 

information. 

Comment 12: ERCC commented that 

the mere removal of a reference to the 

federal definition of BACT does not 

create a permitting deficiency or 

interfere with attainment. The mere 

statement that the Texas BACT 

definition differs from the federal 

regulation fails to explain how it 

interferes with the state SIP. Many 

States have BACT definitions in their 

EPA-approved SIPs that do not conform, 

word for word, to the BACT statutory 

language. See Connecticut—CONN. 

AGENCIES REGS. § 22a-174–1 (EPA 

effective date, February 27, 2003); 

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8Letter from Carl E. Edlund, Director, EPA 

Multimedia Planning and Permitting Division to 

Mark Vickery, Executive Director, Texas 

Commission on Environmental Quality. (Oct. 27, 

2008) available at http://www.tceq.state.tx.us/ 

assets/public/permitting/air/Announcements/ 

epa_response_10_27_08.pdf. 9 31 Tex. Reg. 519 (Jan. 27, 2006). 

Maine—06–096 ME. CODE R. § 100–17 

(EPA effective date, November 21, 

2007); New Hampshire—N.H. CODE 

ADMIN. R. ANN. ENV–A: § 101.13 (EPA 

effective date, August 14, 1992); and 

Oklahoma—OKLA. ADMIN. CODE 

§ 252:100–1–3 (EPA effective date, 

January 7, 2000). 

Response: EPA disagrees. See 

responses to comments 5 and 11. 

Furthermore, in the July 16, 2010, SIP 

submittal, TCEQ revised 30 TAC 

116.160 to incorporate into its PSD 

Program the federal PSD BACT 

definition in 40 CFR 52.21(b)(12). Based 

upon our evaluation of the July 2010, 

SIP revision, we conclude that Texas 

has corrected the deficiencies identified 

in the proposal. 

Comment 13: ERCC commented that 

the both EPA’s and Texas’ BACT 

definitions require the consideration of 

technical limitations, such as energy 

and environmental concerns, as well as 

the economic reasonableness of the 

emissions limitation, in order to 

determine BACT. Compare 40 CFR 

51.166(b)(12) with 30 TAC 

116.111(2)(C). Further, both processes 

address the same fundamental concepts 

as expressed in the Clean Air Act. The 

key question is whether the ‘‘state 

permitting program provides a 

framework for adequate consideration of 

regulatory criteria and consistency 

within the PSD program.’’ In re 

ConocoPhillips Co., PSD Appeal 07–02 

slip op. at 30 (EAB June 2, 2008) 

(quoting In re Cardinal, FG Co, 12 

E.A.D. 153 at 161 (EAB 2005). 

Response: See the response to 

comment 5. Based upon our evaluation 

of the July 2010, SIP revision, we 

conclude that Texas has corrected the 

deficiencies identified in the proposal. 

Comment 14: ERCC commented that 

to the extent EPA is asserting that the 

TCEQ staff was required to follow the 

exact ‘‘top down’’ approach to BACT 

analysis, and that such an argument has 

already been disclaimed by EPA and the 

Environmental Appeals Board and 

rejected by the U.S. Supreme Court. As 

stated by EPA when it actually 

approved the Texas PSD program in 

1992, EPA did require Texas to follow 

EPA’s interpretations and guidance 

issued under the Act in the sense that 

those pronouncements have 

independent status as enforceable 

provisions of the Texas PSD SIP. See 57 

FR 28095 (June 24, 1992). During this 

same approval promulgation, EPA 

expressly confirmed that the State of 

Texas is not required to follow the EPA 

‘‘top down’’ approach to BACT. Id. at 

28095–6. Likewise in the case of Alaska 

Department of Environmental 

Conservation v. EPA, 540 U.S. 461, 476 

n. 7 (2004), the U.S. Supreme Court 

wrote: ‘‘Nothing in the act or its 

implementing regulations mandates topdown analysis.’’ The ability to deviate 

from the top-down analysis is also 

supported by the Environmental 

Appeals Board, which has recognized in 

prior rulings the permitting authority’s 

ability to vary from the NSR review 

manual as long as all regulatory criteria 

are considered and applied 

appropriately. ConocoPhillips, PSD 

Appeal 07–02 slip op. at 30 (EAB June 

2, 2008) (citing In re Knauf Fiber Glass 

GmbH, 8 E.A.D. 121 at 129–30 n. 14, 

135 n.25). Absent a showing from EPA 

that the Texas definition of BACT 

somehow inescapably leads to failure to 

consider and apply the appropriate 

regulatory criteria, or inexorably leads 

to the NAAQS not being protected, EPA 

must defer to the State’s authority under 

the Clean Air Act to address air quality 

issues. Texas’ BACT definition has 

resulted in some of the most stringent 

pollution control emission rates in the 

United States. EPA has not identified 

one instance where application of 

Texas’ BACT definition resulted in less 

pollution control than if EPA’s top 

down analysis was used. The issue that 

EPA has identified is non-substantive 

and solely one of semantics. 

Response: EPA’s proposed 

disapproval is not based on an 

evaluation of the Texas three-tier 

approach; it is based on an evaluation 

of the submitted revision. See our 

response to Comments 4, 5 and 11. The 

comments on the approaches and 

implementation of the PSD SIP by TCEQ 

are outside the scope of this rulemaking 

action. Furthermore, in the July 16, 

2010, SIP submittal, TCEQ revised 30 

TAC 116.160 to incorporate into its PSD 

Program the federal PSD BACT 

definition in 40 CFR 52.21(b)(12). Based 

upon our evaluation of the July 2010, 

SIP revision, we conclude that Texas 

has corrected the deficiencies identified 

in the proposal. 

Comment 15: GCLC commented that 

furthermore, EPA has voiced its support 

for Texas three-tier approach during 

negotiations with TCEQ over these 

issues. While responding to TCEQ 

submittals, the EPA on October 27, 

2008, stated that it ‘‘agreed with many’’ 

of the statements made by TCEQ 

defending their BACT program in a June 

13, 2008, letter.8 TCEQ statements 

included that, to its understanding, the 

three-tiered approach is an acceptable 

and approved approach by the EPA. If 

the EPA did have concerns with that 

assessment, the EPA had the 

opportunity to voice them at that time 

or since Texas (and other states) began 

using this type of three-tiered approach. 

Response: Implementation by the 

State of its PSD SIP is outside the scope 

of this rulemaking action. 

Comment 16: TCC commented that 

EPA’s proposal to disapprove this rule 

is based in part on false distinctions 

between what it refers to as ‘‘PSD BACT’’ 

and ‘‘Minor NSR BACT.’’ Assuming such 

distinctions, EPA concludes that the 

Texas rules fail to clearly apply the 

‘‘PSD definition of BACT’’ to all actions 

subject to PSD, and conversely fails to 

delimit the minor NSR definition to 

activities triggering only minor NSR. 

But there are no distinctions, legal or 

practical, in Texas BACT reviews. 

Response: EPA disagrees. See our 

response to Comment 5. Based upon our 

evaluation of the July 2010, SIP 

revision, we conclude that Texas has 

corrected the deficiencies identified in 

the proposal. 

Comment 17: BCCA and TIP 

commented that the preamble to the 

2006 revisions to 30 TAC 116.160 in 

which the incorporations by reference of 

40 CFR 52.21 were changed, 

demonstrate a consistency with the 

approach taken by the State in the 

preceding years. The preamble explains 

the incorporation by reference of certain 

sections of 40 CFR 52.21 and further 

states, ‘‘[o]ther definitions used for the 

PSD program or visibility in Class I 

areas program are currently in [TCEQ’s] 

rules.’’ 9

Response: The 2006 revisions to 30 

TAC 116.160 did not just ‘‘change’’ the 

incorporations by reference of 40 CFR 

52.21; they removed two of them 

entirely. The result is that the submitted 

2006 revision did not meet the Act’s 

PSD requirements and EPA’s PSD SIP 

regulations. Moreover, the State did not 

provide the requisite demonstration to 

show how its customized Major NSR 

SIP revision was at least as stringent as 

EPA’s PSD SIP requirements. 

Furthermore, in the July 16, 2010, SIP 

submittal, TCEQ revised 30 TAC 

116.160 to incorporate into its PSD 

Program the federal PSD BACT 

definition in 40 CFR 52.21(b)(12) and 

the provisions of 40 CFR 52.21(r)(4). 

Based upon our evaluation of the July 

2010, SIP revision, we conclude that 

Texas has corrected the deficiencies 

identified in the proposal. See response 

to comment 2 above for further 

information. 

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Comment 18: BCCA and TIP 

commented that the appropriate BACT 

definition exists in Texas’s rules, as 

demonstrated by EPA’s past approval of 

those rules. All permits Texas has 

issued under the existing permitting 

program reflect the current TCEQ SIPapproved approach to BACT, and are 

valid and enforceable. 

Response: EPA disagrees that the 2006 

SIP revision submittal maintained the 

appropriate PSD BACT definition. See 

the response to Comment 5. 

Furthermore, in the July 16, 2010, SIP 

submittal, TCEQ revised 30 TAC 

116.160 to incorporate into its PSD 

Program the federal PSD BACT 

definition in 40 CFR 52.21(b)(12). Based 

upon our evaluation of the July 2010, 

SIP revision, we conclude that Texas 

has corrected the deficiencies identified 

in the proposal. Comments on the 

implementation by the State of the PSD 

SIP are outside the scope of this 

rulemaking action. 

Comment 19: TCC commented that 

Texas law does not create two different 

types of permits, one called a minor 

NSR permit and one called a PSD 

permit. There is only one kind of preconstruction permit described in the 

Texas Clean Air Act, a ‘‘preconstruction 

permit’’ under Texas Health & Safety 

Code § 382.05 18(b). The issuance of all 

such permits is conditioned on use of 

‘‘best available control technology.’’ 

Response: EPA disagrees. See 

responses to comments 5 and 18. Based 

upon our evaluation of the July 2010, 

SIP revision, we conclude that Texas 

has corrected the deficiencies identified 

in the proposal. 

Comment 20: TCC commented that 

the definitions do not determine 

stringency. The stringency of BACT 

determinations are not determined by 

definitions, anyway. Even the far 

wordier ‘‘federal definition’’ is but a 

litany of factors that go into what is 

inevitably a highly discretion-laden 

determination. A more ‘‘specific’’ 

definition, it may truly be argued, has 

the effect of being less stringent, because 

it limits the factors to be considered. 

Absent a definition of BACT beyond its 

own self-description, TCEQ is free to be 

even stricter than the wordier federal 

definition. Again, the proposed 

disapproval fails to identify even one 

determination that (a) depended on the 

definition applied, and (b) yielded a 

determination less strict than would 

resulted from application of the ‘‘federal 

definition.’’ 

Response: See response to comment 5. 

Comment 21: TCC commented that 

EPA itself does not follow the ‘‘federal 

definition.’’ EPA is in a difficult position 

to insist on word-for-word adoption 

when it does not itself follow the federal 

definition. The definition EPA would 

impose on the states is not the one that 

Congress prescribes. Which federal 

definition would EPA like Texas to 

follow, the one in its rule or the one in 

its governing statute? In what way does 

either ‘‘federal definition’’ necessarily 

require BACT determinations any more 

strict than the Texas definition? 

Response: The differences between 

the regulatory definition of PSD BACT 

at 40 CFR 52.21(b)(12) and the statutory 

definition of that term in section 169(3) 

of the Act are not significant and the 

regulatory definition of PSD BACT is 

consistent with the statutory definition. 

We addressed the reasons why the 

federal BACT definition is more 

stringent than the Texas definition in 

the proposal at 74 FR 48467, at 48472. 

Also see our response to comment 5 

above for further information. To the 

extent this comment relates to TCEQ’s 

implementation of the PSD SIP, it is 

outside the scope of this rulemaking 

action. Finally, based upon our 

evaluation of the July 2010, SIP 

revision, we conclude that Texas has 

corrected the deficiencies identified in 

the proposal. 

Comment 22: TCC commented that 

the proposed disapproval draws on 

distinctions without differences. The 

definition is designed to identify 

relevant factors that go into what is 

ultimately a highly discretion-laden 

determination. No matter the definition, 

the objective is the same. And no matter 

the definitions, the resources consulted 

for each BACT determination are the 

same. In Texas, for example, all BACT 

determinations are made using its 3-tier 

process, which elaborates in detail how 

TCEQ makes the determinations. All 

reviews are based on consideration of 

national determinations codified in the 

RACT/BACT/LAER Clearinghouse; EPA 

has agreed that this process yields 

results equivalent to its top-down 

approach, which itself is not compelled 

by any definition. In both cases, 

responsible agencies make discretionary 

determinations based on aggressive 

efforts to ensure that new technologies 

are applied when they become available 

to new sources. Pharisaical parsing over 

definitions does not accomplish sound 

BACT determinations, which instead 

result from good faith efforts by 

responsible regulators. 

Response: EPA disagrees. See 

responses to comments 5, 7, and 14. 

TCEQ’s implementation of the PSD SIP 

is outside the scope of this rulemaking 

action. Based upon our evaluation of the 

July 2010, SIP revision, we conclude 

that Texas has corrected the deficiencies 

identified in the proposal. 

Comment 23: TCC commented that to 

the very extent there were differences in 

a result based on the definition; EPA 

would be prohibited from disapproving 

the definition. EPA presumes without 

proof a difference in result arising out 

of TCEQ’s BACT definition. But, 

regardless, EPA cannot elect to approve 

the broader reach of the Texas program 

(e.g., application of BACT to all 

sources), but disapprove what it 

perceives to be a lesser definition of 

BACT. States are the primary architects 

of their implementation plans, and EPA 

is not free to change the state’s choices 

by selective approvals of interrelated 

elements. Accordingly, the extent to 

which EPA would make any substantive 

changes in TCEQ’s permitting program 

by selectively disapproving its BACT 

definition is the very extent to which it 

is forbidden to disapprove it. EPA must 

either accept the permit program or 

reject it in its entirety, and not cut it to 

pieces so that it looks like a ransom 

note. 

Response: EPA disagrees. See 

response to Comments 5, 7, and 14. 

TCEQ’s implementation of the PSD SIP 

is outside the scope of this rulemaking 

action. Based upon our evaluation of the 

July 2010, SIP revision, we conclude 

that Texas has corrected the deficiencies 

identified in the proposal. 

Comment 24: The Clinic commented 

(under Docket No. EPA–R06–OAR– 

2006–0133) on EPA’s proposed 

disapproval of TCEQ’s rules that 

removed a requirement under 40 CFR 

52.21(r)(4) that provides that if a project 

becomes a major stationery source or 

major modification solely because or 

relaxation of an enforceable limitation 

on the source or modifications capacity 

to emit the pollutant, then the source or 

modification is subject to PSD as though 

construction had not commenced. This 

provision prohibits the use of ‘‘sham’’ 

operational limits that a source may take 

to avoid PSD and provides an extra 

deterrent to facilities that may take such 

limits that they know they cannot 

achieve in order to avoid federal 

permitting. Approval of this deletion 

also violates the anti-backsliding 

provisions in 42 U.S.C. 7515 and would 

render the Texas SIP less stringent that 

federal requirements and inadequate for 

preventing significant deterioration of 

air quality. 

Response: EPA appreciates the 

Clinic’s support for the proposal. In the 

July 16, 2010, SIP submittal, TCEQ 

revised 30 TAC 116.160 to incorporate 

into its PSD Program the federal 

requirements of 40 CFR 52.21(r)(4). 

Based upon our evaluation of the July 

2010, SIP revision, we conclude that 

Texas has corrected the deficiencies 

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identified in the proposal. See response 

to comment 2 above for further 

information. 

V. What are the grounds for approval? 

A. Adoption of Cross-Reference to 40 

CFR 52.21(b)(12), Which Is the Federal 

Definition of Best Available Control 

Technology (BACT), and the CrossReference of 40 CFR 52.21(j) Which 

Implements the Requirement for a PSD 

BACT Analysis 

The February 1, 2006, submittal of 

revisions to 30 TAC 116.160 removed 

the reference to the definition of federal 

PSD BACT in 40 CFR 52.21(b)(12). On 

September 23, 2009, EPA proposed to 

disapprove the 2006 submittal due in 

part to its removal of this definition. 

EPA observed that under the PSD 

Program, PSD BACT is a central 

requirement of the Act and that the 

State’s submission of a revision that 

removes the requirement that all new 

major stationary sources and 

modifications meet, at a minimum, PSD 

BACT as defined by the Act creates a 

situation where the submitted SIP 

revision would violate the Act and also 

be a relaxation of the requirements of 

the Texas PSD SIP. See the proposed 

disapproval at 74 FR 48467, at 48472. 

On July 16, 2010, Texas submitted a 

revision to 30 TAC 116.160 that 

reinstates the federal PSD BACT 

definition in 40 CFR 52.21(b)(12). See 

submitted 30 TAC 116.160(c)(1)(A). The 

revision also includes a reference to 40 

CFR 52.21(j) which implements the 

BACT definition. See submitted 30 TAC 

116.160(c)(2)(A). 

The adoption of the reference to the 

federal definition of PSD BACT in 40 

CFR 52.21(b)(12) corrects a deficiency in 

the 2006 submittal because it reinstates 

a requirement that is a central 

requirement of the Act. Approval of this 

2010 revision maintains the Texas PSD 

SIP as what EPA first approved in 1992. 

The TCEQ also submitted on July 16, 

2010, a revision to 30 TACT 116.160 

that adds a reference to 40 CFR 

52.21(j)—Control technology review. 

This provision was not referenced in the 

Texas PSD SIP approved in 1992. Texas 

chose to reference 40 CFR 52.21(j) 

because of the confusion over the years 

about the PSD versus the Minor NSR 

BACT determination requirements. It 

complements the reinserted federal 

definition of PSD BACT. Accordingly, 

EPA is approving the reinstatement of 

the reference to federal PSD BACT in 40 

CFR 52.21(b)(21) and the addition of a 

reference to 40 CFR 52.21(j). 

B. Adoption of Cross-Reference to 40 

CFR 52.21(r)(4), Which Relates to PSD 

Review for Projects That Become Major 

Stationary Sources or Major 

Modifications Solely Because of 

Relaxation of an Enforceable Limitation 

on the Source or Modification Capacity 

to Emit a Pollutant 

The February 1, 2006, submittal of 

revisions to 30 TAC 116.160 also 

removed the reference to 40 CFR 

52.21(r)(4) that the State had previously 

incorporated into its PSD SIP. This 

provision specifies that if a project 

becomes a major stationary source or 

major modification solely because of a 

relaxation of an enforceable limitation 

on the source’s or modification’s 

capacity to emit a pollutant, then the 

source or modification is subject to PSD 

as if construction had not yet 

commenced. The removal of this 

requirement meant that the State’s rules 

would not regulate these types of major 

stationary sources or major 

modifications as stringently as the 

federal program. See the proposed 

disapproval at 74 FR 48467, at 48472. 

On July 16, 2010, Texas submitted a 

revision to 30 TAC 116.160 that 

reinstates the reference to 40 CFR 

52.21(r)(4). See submitted 30 TAC 

116.160(c)(2)(C). 

The adoption of the reference to 40 

CFR 52.21(r)(4) in the July 2010 

submittal corrects a deficiency in the 

2006 submittal because it reinstates a 

requirement that is mandated in the 

federal program. Approval of this 2010 

revision maintains the Texas PSD SIP to 

its status when EPA first approved the 

SIP in 1992. Accordingly, EPA is 

approving the reinstatement of the 

reference to 40 CFR 52.21(r)(4). 

C. How EPA’s action does not affect the 

substance of the Texas PSD SIP 

originally approved in 1992? 

The 2006 and 2010 SIP revisions to 30 

TAC 116.160 reorganized the sections 

but made no substantive changes to the 

approved SIP except that the 2006 

submittal omitted references to the 

definition of PSD BACT in 40 CFR 

52.21(b)(12) and the requirements of 40 

CFR 52.21(r)(4) which resulted in the 

2006 revisions not meeting the federal 

requirements. See sections IV.A and B 

above. The 2010 SIP revision submittal 

reinstates these provisions into the 

State’s rules and corrects the aboveidentified deficiencies. Texas also 

added a reference to 40 CFR 52.21(j)— 

Control technology review—which 

complements the implementation of the 

definition PSD BACT. The specific 

changes are described in section II of 

this notice. A detailed outline of the 

specific changes made to 30 TAC 

116.160 by the 2006 and 2010 SIP 

revisions is available in the Technical 

Support Document which is in the 

docket for this action. Our evaluation of 

these changes demonstrates that the 

submitted changes to the Texas PSD 

Program are insignificant and with the 

changes submitted in 2010 essentially 

restore the Program to what it was in 

1992. The 2006 revision also removed 

the definitions of ‘‘building, structure, 

facility, or installation’’ and ‘‘secondary 

emissions’’ in 30 TAC 116.160(c)(1) and 

(2), respectively. The removal of these 

definitions is not significant because 

these terms are also defined using the 

same definitions in the Texas SIP at 30 

TAC 116.12(4) and (17), respectively, as 

approved at 74 FR 11851 (March 20, 

2009). 

For further information see: 

• The 1989 proposed Texas PSD SIP 

approval at 54 FR 52823, at 52824– 

52825 (December 22, 1989); 

• The final Texas PSD SIP approval at 

57 FR 28093, at 28095–28096 (July 24, 

1992); 

• The proposed disapproval of the 

February 1, 2006, submitted revisions to 

30 TAC 116.160 at 74 FR 48467, at 

48472; 

• The submitted SIP revisions to 30 

TAC 116.160 dated July 16, 2010; 

• The background for this action in 

section II of this preamble; 

• The responses to comments 1 

through 26 in section III of this 

preamble; and 

• The technical support document for 

this action. 

VI. Final Action 

The EPA is approving certain 

revisions to the Texas PSD SIP, 

submitted February 1, 2006, and as 

amended July 16, 2010, which apply to 

30 TAC Chapter 116—Control of Air 

Pollution by Permits for New 

Construction or Modification. EPA finds 

that the July 16, 2010, submittal corrects 

these deficiencies in the February 1, 

2006, submission identified in the 

September 23, 2009, proposed 

disapproval of revisions to 30 TAC 

116.160. These revisions submitted in 

2006 were nonsubstantive except for the 

removal of the PSD BACT definition 

and the removal of the reference to 40 

CFR 52.21(r)(4). With the restoration of 

the PSD BACT definition and the 

reference to 40 CFR 52.21(r)(4) and the 

addition of a reference to 40 CFR 

52.21(j) in the Texas NSR Program, we 

find that the aspects of the submitted 

PSD Program covered in these 

submissions meet section 110 and part 

C of the Act. 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 55987 

EPA is publishing this rule without 

prior proposal because we view this as 

a noncontroversial amendment and 

anticipate no relevant adverse 

comments. However, in the proposed 

rules section of this Federal Register 

publication, we are publishing a 

separate document that will serve as the 

proposal to approve the SIP revision if 

relevant adverse comments are received. 

This rule will be effective on November 

15, 2010 without further notice unless 

we receive relevant adverse comment by 

October 15, 2010. If we receive relevant 

adverse comments, we will publish a 

timely withdrawal in the Federal 

Register informing the public that the 

rule will not take effect. We will address 

all public comments in a subsequent 

final rule based on the proposed rule. 

We will not institute a second comment 

period on this action. Any parties 

interested in commenting must do so at 

this time. Please note that if we receive 

relevant adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

we may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

VII. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by November 15, 

2010. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon Monoxide, 

Hydrocarbons, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen oxides, Ozone, 

Particulate matter, Sulfur oxides, 

Volatile organic compounds. 

Dated: August 31, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

■ Accordingly, 40 CFR part 52 is 

amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart SS—Texas 

■ 2. The table in § 52.2270(c) entitled 

‘‘EPA Approved Regulations in the 

Texas SIP’’ is amended under Chapter 

116 (Reg 6)—Control of Air Pollution by 

Permits for New Construction or 

Modification, Subchapter B—New 

Source Review Permits, Division 6— 

Prevention of Significant Deterioration 

Review, by revising the entry for Section 

116.160—Prevention of Significant 

Deterioration Review to read as follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

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55988 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

EPA APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

*******

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

*******

Subchapter B—New Source Review Permits 

*******

Division 6—Prevention of Significant Deterioration Review 

Section 116.160 ........ Prevention of Significant Deterioration Requirements.6/2/2010 9/15/2010 [Insert FR page number where 

document begins]. 

* * * * * * * 

* * * * * 

[FR Doc. 2010–22672 Filed 9–14–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–1014–201026; FRL– 

9201–1] 

Approval and Promulgation of 

Implementation Plans; Commonwealth 

of Kentucky; Prevention of Significant 

Deterioration and Nonattainment New 

Source Review Rules: Nitrogen Oxide 

as Precursor to Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve a revision to the 

Commonwealth of Kentucky’s State 

Implementation Plan (SIP), submitted to 

EPA by the Kentucky Energy and 

Environment Cabinet, through the 

Kentucky Division for Air Quality 

(KDAQ), on February 5, 2010. The 

revision modifies Kentucky’s prevention 

of significant deterioration (PSD) and 

nonattainment new source review 

(NNSR) permitting regulations in 

Kentucky’s SIP to address permit 

requirements promulgated in the 1997 

8-Hour Ozone National Ambient Air 

Quality Standards (NAAQS) 

Implementation Rule—Phase II 

(hereafter referred to as the ‘‘Ozone 

Implementation NSR Update’’). The 

Ozone Implementation NSR Update 

revised permit requirements relating to 

the implementation of the 1997 8-hour 

ozone NAAQS, specifically, 

incorporating nitrogen oxides (NOX) as 

a precursor to ozone. EPA’s approval of 

Kentucky’s provisions to include NOX

as an ozone precursor into the Kentucky 

SIP is based on EPA’s determination 

that Kentucky’s SIP revision related to 

these provisions complies with Federal 

requirements. EPA is also addressing 

the general adverse comments received 

on EPA’s proposal to approve NOX as an 

ozone precursor for permitting purposes 

into the Kentucky SIP. 

The February 5, 2010, SIP revision 

also included provisions to exclude 

facilities that produce ethanol through a 

natural fermentation process from the 

definition of ‘‘chemical process plants’’ 

in the NSR major source permitting 

program in the Kentucky SIP. EPA also 

received adverse comments for its 

proposal to approve these provisions. At 

this time, EPA is not taking final action 

on Kentucky’s provisions to exclude 

facilities that produce ethanol through a 

natural fermentation process from the 

definition of ‘‘chemical process plants’’ 

in the NSR major source permitting 

program. EPA will consider the 

comments received regarding these 

provisions and take any final action for 

these provisions in a separate 

rulemaking. 

DATES: Effective Date: This rule will be 

effective October 15, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2009–1014. All documents in the docket 

are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information is 

not publicly available, i.e., Confidential 

Business Information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the Kentucky SIP, 

contact Ms. Twunjala Bradley, 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Ms. 

Bradley can be reached via telephone at 

(404) 562–9352 and electronic mail at 

bradley.twunjala@epa.gov. For 

information regarding NSR, contact Ms. 

Yolanda Adams, Air Permits Section, at 

the same address above. Ms. Adams can 

be reached via telephone at (404) 562– 

9214 and electronic mail at 

adams.yolanda@epa.gov. For 

information regarding 8-hour ozone 

NAAQS, contact Ms. Jane Spann, 

Regulatory Development Section, at the 

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